Sunday Commentary: There’s a Wave of Progressive Prosecutors, but We’ve Been Left Behind

Despite a closer than expected election back in June in Yolo County, the hope for progressive reform remains elusive.  This past week there was an op-ed in the New York Times, “There’s a Wave of New Prosecutors. And They Mean Justice.”  The call has been to make jail the exception and attain the elimination of cash bail, among other things.

The authors note: “In the past two years, a wave of prosecutors promising less incarceration and more fairness have been elected across the country.”

They write that these reformers are both Republicans and Democrats and they have taken over DA’s offices in both red and blue states.

“Five progressive D.A.s have been elected in major cities in Texas, of all surprising places, most recently in Dallas and San Antonio. In Houston, Kim Ogg was elected D.A. two years ago, and in the face of opposition from more than a dozen local judges, she has supported a lawsuit challenging the cash bail system for misdemeanor cases.”

Here is the key point: “Local prosecutors, who handle 95 percent of the criminal cases brought in this country, are well positioned to take reform into their own hands because of their broad discretion over whether and how to prosecute cases and what bail they decide to seek against defendants.”

But reform in our county has been uneven, at best, and elusive.

The local paper argued our DA was among the progressives in the state.  The Sacramento Bee strangely agreed.  But here’s an interesting factoid for you – there were only four DAs that opposed all four of these: Prop 47, Prop 57, Death Penalty Reform and Prop 64 (legalization of marijuana).  Those DAs were: Anne-Marie Schubert, Mike Ramos, Tony Rackauckas, and Jeff Reisig.

Those in my mind were the four LEAST progressive DAs in the state.  All four were challenged.  Two of them lost – Mike Ramos and Tony Rackauckas.  Jeff Reisig nearly lost.

The Brennan Center for Justice has developed “21 Principles for the 21^st Century Prosecutor.”  They write: “The 21 principles below offer practical steps prosecutors can take to transform their offices, and collectively, their profession  The principles include examples of innovative endeavors by prosecutors around the nation, not necessarily as endorsements, but as illustrations of new approaches  We recognize that prosecution is local, and some of these recommendations and examples won’t be suited to all jurisdictions  We nonetheless hope that these ideas generate conversation, creative thinking, and change.”

Here are the 21:

1. Make Diversion the Rule
2. Charge with Restraint and Plea Bargain Fairly
3. Move Toward Ending Cash Bail
4. Encourage the Treatment (Not Criminalization) of Mental Illness
5. Encourage the Treatment (Not Criminalization) of Drug Addiction
6. Treat Kids Like Kids
7. Minimize Misdemeanors
8. Account for Consequences to Immigrants
9. Promote Restorative Justice
10. Shrink Probation and Parole
11. Change Office Culture and Practice
12. Address Racial Disparity
13. Create Effective Conviction Review
14. Broaden Discovery
15. Hold Police Accountable
16. End the Poverty Trap of Fines and Fees
17. Expunge and Seal Criminal Records
18. Play Fair with Forensic Evidence
19. Work to End the Death Penalty
20. Calculate the Cost of Incarceration
21. Employ the Language of Respect

I see three on this list that would jump out at me that we *might* be doing in Yolo County.  The clearest one is No.9 – “promote restorative justice.”  The Neighborhood Court deserves credit.  How much credit is subject to some debate and discussion.  In recent years, the program has gone beyond the victimless crimes, but we have not gone further to include programs like Victim Offender Reconciliation Program (VORP).  They deserve credit, but I would like to see this go further.

Other than that, it’s hard to defend the Yolo DA’s office on this list.  We have programs that could address (4) and (5).  But the infamous case of Eric Pape illustrates that the Yolo County has not done nearly enough to treat rather than prosecute people with mental illness.  Likewise, we have Drug Court, but we are charging marginal cases as possession with intent to sell and, worse yet, we are raiding and prosecuting marginal cannabis cases.

Some quick thoughts going down this list:

Make Diversion the Rule: “When diversion precedes charging, participants can stay out of the criminal justice system entirely. After charging or conviction, diversion similarly provides an alternative to incarceration.”  The DA will argue that they offer diversion, but clearly they are not using it to avoid the criminal justice system entirely.  There are some good models such as Washington DC’s “Alternatives to the Court Experience” that we could look toward.

Charge with Restraint and Plea Bargain Fairly: We see the opposite – the local DA charges to the hilt and will often not offer reasonable pleas until far later in the process.

Move Toward Ending Cash Bail: During the campaign, some of his supporters claimed that Mr. Reisig was a supporter of bail reform.  But there is no record to show that.  There is no evidence he supported the legislation that was ultimately signed, effectively ending cash bail in California.  Moreover, Jeff Reisig’s office has consistently argued for higher bails, even in cases where bail didn’t make a lot of sense.

Treat Kids Like Kids: Before prevented by state law through Prop. 57, Yolo County led the state in direct filing juveniles as adults.  Mr. Reisig has not only fought Prop. 57, but he was among the leaders fighting SB 1391, which eliminated adult trials for juveniles under 15.

Minimize Misdemeanors: “The Brennan Center notes: “Arrests and prosecutions for misdemeanors and violations can significantly affect people’s lives even when they result in short sentences or probation, costing people their employment, housing, student loans, immigration status, and even their children, and contributing to a cycle of incarceration and poverty that is hard to break.”  They recommend not charging misdemeanors, especially “trespassing or loitering, which are associated with poverty, mental illness, and homelessness.”  We have followed cases where the defendants are being effective charged FOR being homeless.

Account for Consequences to Immigrants:  There was the Nan-Hui case where the mother was fleeing an abusive relationship and ended up being charged with parental abduction.

Shrink Probation and Parole: “The number of people under some form of probation or parole in the United States is about 5 million. This number is far too high, and periods of supervision are far too long. Supervision increases the likelihood that people who are otherwise at low risk of reoffending will end up incarcerated for technical violations that have little to do with public safety. The majority of violations occur within the first year, suggesting that supervision beyond that point serves little to no rehabilitative purpose. Some states have shortened supervision periods with no increase in crime or recidivism.”  We have seen no evidence of this.

Change Office Culture and Practice: “Prosecutors are the gatekeepers of America’s criminal justice system. The policies and incentives they put into place, and the dynamics inside their offices, have a tremendous effect on the pursuit of justice in their community and the system as a whole. Prosecutors can design (or redesign) key features of the system to make it more accountable, equitable, and just.”  We have seen no evidence of this.

Address Racial Disparity: Dean Johansson made this one of the centerpieces of his campaign, stating, “Yolo County’s imprisonment rates reveal great racial disparities in our justice system. We must not fool ourselves into thinking our county is already “progressive enough” while punishments are so disproportionately applied.”

His graphic showed that Yolo County was far worse in racial disparities than California, with Latinos being imprisoned at a rate of 676 per 100,000 in Yolo County compared with 558 statewide.  Blacks are imprisoned at 3101 per 100,000 compared to 2303 statewide.  On the other hand, whites are imprisoned at 314 per 100,000 compared to 264 statewide.

Thus Latinos are imprisoned more than twice as frequently as whites in Yolo County and blacks are imprisoned at nearly ten times the rate of whites.

Create Effective Conviction Review: The DA has created a Conviction Integrity Unit but it has been referred six cases in six years and none of have reached the second level of review.  The Vanguard believes that 14 cases at least have resulted in wrongful convictions under this DA’s tenure, and none of those cases have been reviewed by Mr. Reisig’s office.

Broaden Discovery: Here they recommend “open-file policies” to disclose all relevant evidence to the defense; sharing the police report and other material; form a committee to decide how to collect and disseminate to the defense and courts findings of misconduct in police personnel files; designate “an ethics officer to advise staff, provide training, and address allegations of misconduct in the office”; “explain disclosure obligations to the police and other agencies”; “ensure appropriate consequences for prosecutors who improperly and intentionally fail to disclose evidence, including discipline, firing, and reporting ethical violations to the state bar.”  While California by law is poor on police matters, the DA’s office has not been great on these issues.

Hold Police Accountable: There have been a number of high profile police misconduct cases: (1) Galvan brothers beating, (2) Shooting of Luis Gutierrez, (3) Tasering of Tatiana Bush and Jerome Wren, (4) Police Car incident with Brianna Holmes, (5) Pepper Spray at UC Davis, and (6) Picnic Day incident, not to mention many others that have not received heavy media coverage.  Not one of these cases has the DA prosecuted.   The only police officer prosecuted for on-duty transgressions was Alvarez, accused and convicted of raping multiple women while on duty.  While that was obviously justified, that conduct was clear criminal conduct rather than the enforcement of excessive uses of force.

End the Poverty Trap of Fines and Fees – Yolo County is not particularly great here.  “Fixed fines, as well as fees, are also unfair: a $200 fine or fee can pose an annoyance for an affluent person and a financial calamity for an indigent one. While debtors’ prisons are illegal, they effectively exist when people are sent to jail, or otherwise stuck in the criminal justice system, because they can’t afford to pay fines or fees. And pursuing unpaid debt may cost the state more than the revenue it brings in.”

Expunge and Seal Criminal Records – While the DA’s office often has not opposed such petitions, the recommendations here go a lot farther, suggesting “automated expungement for acts that are no longer criminal” – there has been some talk about expungement for marijuana cases.  Other recommendations include: “Support clinics and amnesty programs to expunge records and clear old warrants in partnership with the court or the defense bar.”  “In general, don’t object to reinstating drivers’ licenses, or to applications for certificates of relief from disability, which inform prospective employers or landlords that an individual has been rehabilitated.” “Host workshops for job trainings, resumé programs, and mock interviews. Encourage employers to hire people with criminal records.” “Support efforts to eliminate restrictions on expungement and sealing, such as long waiting periods.”

Play Fair with Forensic Evidence – They write: “The continued use of unreliable and misleading forensic evidence, however, imperils the integrity of the criminal justice system. It’s critical for prosecutors to promote efforts that strengthen the reliability of forensic evidence and inform courts and jurors of its limitations.”  Recommendations: stop using invalid scientific evidence, ensure that other types of forensic evidence used are valid, do not offer forensic evidence supported only by an expert’s experience, critically examine emerging scientific literature.

Work to End the Death Penalty  – This DA’s office has put two people on death row both for shooting and killing police officers.  In addition, Mr. Reisig, who has not charged someone with a death penalty offense since 2008, has actively opposed both measures to end the death penalty.

Calculate the Cost of Incarceration  – While state law has cut into the DA’s office’s ability to incarcerate, we do not believe they have gone nearly far enough.  The recommendations here include: calculate the cost-savings of alternatives to incarceration and factor it into plea offers and sentencing recommendations, calculate “the expected cost of incarceration for a proposed jail or prison sentence and announce it before sentencing, so judges and the public can consider it.”  In addition, “Report on the annual cost of incarceration and the office’s efforts to reduce it.”  This is literally never raised during sentencing.  In Philadelphia, DA Larry Kranser “has instructed prosecutors to announce the cost of incarceration at sentencing.”

Employ the Language of Respect – “Commonly used terms like convict, ex-convict, felon, and inmate are dehumanizing. They reduce people to their criminal status and perpetuate the stigma of criminal convictions, promoting negative stereotypes that inhibit reform and impede rehabilitation and re-entry.

“Language affects perception; it also evolves. Once-established terms are abandoned as offensive (like “coloreds” or “illegals”) while terms that once seemed unwieldy (“people of color”) become familiar. The words we use also affect policy: mass incarceration has stemmed in part from harsh law-and-order rhetoric.”

My question to the public reading this: what would you like to see from the local district attorney and how can we start incorporate some of these changes into Yolo County?

—David M. Greenwald reporting

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