3 bills would dampen punitive effect of sentence enhancements

Indicating a possible response to the debate that's playing out among prosecutors and in the courts, California lawmakers have advanced three proposed bills that would dampen or eliminate the punitive effect of some criminal sentence enhancements and increase judicial discretion for dismissing them.

The bills, which passed the Public Safety Committees in the Assembly and Senate Tuesday, will likely be a test of the Democrat-controlled Legislature's appetite for some of the criminal sentencing policies recently adopted by district attorneys in San Francisco and Los Angeles.

Currently, certain juvenile convictions can constitute a strike in adult court under California's three strikes law, allowing prosecutors to beef up a potential criminal sentence. While some progressive prosecutors like Chesa Boudin and George Gascon have eliminated the practice in their counties, AB 1127, drafted by Assemblymember Miguel Santiago, D-Los Angeles, would do that statewide.

Under the proposed measure, prosecutors would be prohibited from charging a juvenile felony conviction as a prior strike when prosecuting a new crime in adult court. The bill is co-sponsored by Gascon, who says the purpose of the juvenile justice system is meant to rehabilitate young people, not punish them. The DA recently hired a youth brain development expert to help inform his juvenile charging policy, which prevents prosecutors from transferring anyone under 18 to adult court.

"To use crimes committed while an adolescent's brain is still developing to punish them as adults just does not make any sense," Gascon said in a statement. "When we put our energy toward rehabilitating young people, we improve community safety by reducing recidivism."

The measure would be retroactive, meaning anyone convicted in adult court with a juvenile strike enhancement can seek relief if the bill becomes law.

Gascon critic Jonathan Hatami, a Los Angeles County deputy district attorney who has sued the DA alleging discrimination, said he supports juvenile rehabilitation but said the bill, in combination with Gascon's charging policies, disregards public safety. He offered the speculative example of a teenager who is convicted of a double murder and then goes on to commit a new violent crime after being released from custody.

"Not alleging the prior murder as a strike, what public safety value does that provide?" Hatami said. "This totally fails public safety, totally abandons multiple victims, has no punishment or rehabilitative value, and is really not fair to anyone who lives in Los Angeles."

A similar bill advanced Tuesday aims to scale back the punishment that's currently conditioned on firearm enhancement charges.

Under AB 1509, written by Assemblymember Alex Lee, D-San Jose, a person convicted of intentionally firing a gun causing great bodily injury or death while committing a felony would be subject to a three-year enhancement as opposed to 25 years to life. The bill would also shorten the 20-year mandated enhancement for intentionally firing a gun while committing a felony to two years, and shorten the 10-year enhancement for using a firearm while committing a felony to one year.

Some victims of gun crimes said last week during National Crime Victims' Rights Week the bill is regressive. El Dorado County District Attorney Vern Pierson said the statutes it aims to repeal were enacted "to make the penalty so severe that people going out and committing robberies ... would be afraid to carry a firearm on them."

Progressive prosecutors like Gascon say science and data don't back up that rhetoric. They argue the enhancement laws that were catalyzed in response to crime spikes in the late 1980s and early 1990s have done nothing to deter criminals but have continued to inflate the state's prison population.

However, in a recent Daily Journal column, Eric Siddall, a Los Angeles deputy district attorney who is vice president of the deputy DAs' union, contested Gascon's interpretation of the University of Michigan study he often cites.

"While this research is robustly executed and thoughtfully presented, it is not yet peer-reviewed," Siddall wrote. "This makes it less than fully baked as an authoritative source that merits citation. Even worse, [the author] never concluded what Gascon ...[says] that he did. He did not find that lengthy sentences increase recidivism among violent offenders, as opposed to drug offenders."

Siddall wrote that the premise of the study was not to provide evidence regarding how sentence enhancements affect public safety, as Gascon has suggested, and added that the DA has ignored numerous other studies that contradict his position that longer sentences do not deter crime.

Still, Gascon said the Michigan study's findings are why he directed his prosecutors on his first day in office to make a motion at their next court hearing to dismiss any enhancement charges in active cases. The directive led to a patchwork response from the bench, partly because existing law tied judges' hands.

Currently, anyone convicted of one of California's 22 special circumstance charges, such as the murder of a police officer, is required to receive a sentence of life without the possibility of parole. And since 1990, when Proposition 115 was enacted, judges have been prohibited from striking any special circumstance that was admitted by plea or found true by a jury.

SB 481, written by Sen. Maria Durazo, D-Los Angeles, would repeal that provision and authorize judges to dismiss special circumstance findings on their own motions. The bill would require judges to have a presumption of dismissal for anyone who has served 15 years or more and was younger than 25 at the time they committed the crime.

It would also require the court to "offer the survivor or survivors and surviving family members information about services to address their needs as related to the crime and case process, as specified."

Prosecutors opposed the retroactive aspect of the bill, saying it would open the floodgates for undeserving convicted murderers to relitigate their cases.

"It will overwhelm an already overwhelmed backlogged justice system with hundreds and frankly thousands of petitions," said Mark Amador, a San Diego County deputy district attorney. "This is going to significantly burden the workload of the public defenders and the DAs and judges."

However, Heidi Rummel, a former federal prosecutor and current director of the Post-Conviction Justice Project at USC Gould School of Law, said the measure would return discretion to judges in a balanced way.

"Today, there are nearly 6,000 people serving [life without parole], sentenced to die in California prisons," Rummel said. "Some did not kill or intend to kill. Some have mental health issues and intellectual disabilities. Most were teenagers or youth at the time of their crime. And two-thirds are Black and Latino."

All three bills advanced to the Senate and Assembly Appropriations Committees.