Is DA Rosen signaling he plans to slow-walk Prop. 36?
Depicted: looting in San Francisco. Image by Thomas Hawk
California’s Proposition 36 was officially enacted over the holiday break, following voters’ overwhelming approval of the initiative aimed at driving down serial theft and fentanyl crimes through harsher prosecution and more aggressive drug diversion policies. But are local DAs like Jeff Rosen trying to undermine The Voters' Will? Robert Salonga (with our editors' notes) reports for the Merc.
County prosecutors across the state now have the latitude to more readily charge theft cases as felonies when they involve a repeat offender, treat fentanyl dealers as potential murderers, and leverage jail time to compel certain hard drug offenders, particularly those consuming powerful opioids, to enter treatment programs.
{Editor's note: Pay attention to the word choice of "latitude." Salonga is correct in noting that Prop 36 does not require DAs to do anything different than pre-Prop 36; they just can get more aggressive if they choose to.}
What changes can residents expect to see right away? It will depend on the county in which they live, said Jeff Reisig, Yolo County’s district attorney and one of the architects of the new law.
“It’s a local control issue,” Reisig said. “Each county and each city will be deciding how aggressively and how quickly these changes are implemented. In some counties, local law enforcement will be empowered to start making felony arrests for retail thefts with priors, drug offenses with priors, and can exercise that discretion immediately.”
{Editor's note: Note that word "discretion." Even though Reisig is in favor of more aggressive penalties, he acknowledges that it's not required of him and is up to individual DAs to decide.}
The California Police Chiefs Association, whose current president is Pleasanton Chief Tracy Avelar, said the state’s police departments “are ready to ensure a fair but firm response to repeat offenders, balancing rehabilitation with accountability.
“Continued criminal behavior will result in consequences because the safety of our communities is non-negotiable,” Avelar said in a statement. “Overall, if you’re a repeat offender, don’t expect a cite and release.”
{Editor's note: Avelar sounds tough, but watch her language. They are "ready" to act—but she can't guarantee they will. Also, she says continued criminal activity "will result in consequences," but she doesn't say what those consequences are.}
Proposition 36 institutes several changes to the state penal code. Regarding serial theft, prosecutors are now allowed {Editors’ note: "allowed," not "required"} to widely aggregate multiple thefts to reach the $950 felony threshold that elevates theft crimes to felonies.
The new law also empowers prosecutors to charge a felony for any theft if the arrestee has two prior theft convictions, whether felonies or misdemeanors. New charging and sentencing enhancements for organized retail theft were also added to the books.
In Santa Clara County, where Jeff Rosen was one of just three California district attorneys to support 2014’s Proposition 47, which established many of the laws now amended by Proposition 36, prosecutors are grappling with the new law.
{Editors' note: Uh-oh, warning flag. "Grappling." Not "acting to implement."}
Rosen’s office has long been strategic with which theft defendants warrant more aggressive prosecution based on serial offenses and the threat they pose to the public, Assistant District Attorney David Angel said. He added that many of the legal tools offered by Proposition 36 can’t be readily implemented.
{Editors' note: Hard not to read "strategic" as meaning "circumspect regarding."}
For instance, determining at the time of an arrest whether a theft suspect has two prior convictions that would warrant a felony arrest – and corresponding jail booking and review by a magistrate judge – is complicated by the fact that misdemeanor convictions are routinely expunged. An arresting officer, Angel said, might not have immediate access to clarifying information, impeding the goal of swiftly taking serial offenders off the street.
“The way this law has been written, if police did that on every case, it would require an extraordinary amount of time to figure out whether someone had a valid conviction or that it was dismissed,” Angel said.
{Editors' note: Angel's comment sounds like classic bureaucratic deflection: it will create too much work for staff.}
Read the whole thing here.
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