Tuesday, October 18, 2016

Election Update: Your Guide to California’s Criminal Justice Ballot Measures Fall 2016


The nation is abuzz with all things Donald and Hillary, and the anticipated outcome of the presidential election. However, there are other important issues at stake this November. State propositions that affect not only you, but also the criminal justice system – like sentencing, marijuana use, gun control, and the death penalty – are up for vote in a few weeks.

And with four ballot cards to get through by November 8th, this Quarterly Update is dedicated to identifying and simplifying the criminal-justice related measures on the ballot. Below is a rough, cliff-notes-like version of the Propositions and Measures certain to affect California’s criminal justice system. Your California vote is important and it is even more important that you know what you are voting for.

California Ballot Measures

Proposition 57: Sentencing and Juvenile Filings

Proposition 57 supports increasing parole and good behavior opportunities for those convicted of nonviolent crimes. This proposition would also give the judge, not the prosecutors, the ability to decide whether to try juveniles as adults in court, eliminating what is known as “direct file.”

The measure is intended to focus resources towards rehabilitation, rather than additional imprisonment, purports to save money by reducing prison expenditures, and is being promoted by Gov. Jerry Brown.

How would the inmate early release work? Inmates convicted of nonviolent crimes who have served the full sentence for their primary offense as well as passed a screening for public security, would become eligible for parole and early release. The individual would be eligible for parole consideration after completing the full term for his or her primary offense. Additionally, the Department of Corrections would have the authority to award credits for good behavior and approved rehabilitative or educational achievements. As of early 2016, over 25,000 convicted, nonviolent felons would be eligible to seek parole and early release under proposition 57. Gov. Brown estimates that under Prop. 57, about 1,300 new inmates would qualify for earlier parole each year.

The second part of Prop. 57 involves the decision-making authority when charging juveniles as adults. Presently, prosecutors make this decision in a process called “direct file.” If this proposition is passed, that decision would instead fall on the judge in deciding whether to try a juvenile as young as 14 years old as an adult. Supporters believe that fewer children will be tried in adult courts.

The measure is opposed by most district attorneys and other law enforcement officials, who argue that it would apply to prisoners convicted of many felonies that are actually “violent” but are not included in the state’s official definition of a violent crime. Opponents also worry that too much power would be given to prison officials and parole boards, while reducing prosecutors’ leverage to reach plea deals with defendants.

Death Penalty: Proposition 62 and Proposition 66

Since the death penalty law was enacted in 1978, 930 convicted felons have been sentenced to death in California. However, only 13 have been killed and the last execution occurred in 2006, over ten years ago. As a result, supporters and opponents of capital punishment agree that the system is broken. Thus, these two competing propositions aim to either repeal the death penalty & replace it with life without the possibility of parole (Prop. 62) or to shorten the time period of legal challenges to those facing the death penalty (Prop. 66).

            Proposition 62: Repealing the Death Penalty

Proposition 62 would repeal the death penalty in California. This proposition would replace the death penalty with a life sentence without the opportunity for parole. If passed it would apply retroactively to those already on death row.

Proposition 62 would also require all persons convicted of murder to work while in prison in order to gain funds and pay debts to the victims of their crimes. Up to 60% of inmates' earnings would be deducted from their wages in order to pay this debt.

Financial analysts for the state say that if Proposition 62 passes, it would save California about $150 million per year from the $122 billion state general fund budget. The savings would come primarily from reduced costs for trials and legal appeals.

Proposition 66: Quickening the Legal Process of the Death Penalty

Proposition 66’s goal is to speed up the appeals process for death penalty cases by requiring habeas corpus petitions to be completed within five years. This would be done by expanding which courts and attorneys work on the cases – putting trial courts in charge of habeas corpus petitions instead of the Supreme Court.

Proposition 66 also changes the qualifications required to represent convicted inmates, requiring attorneys who take any criminal appeals to also take death penalty appeals. Given the possibility of ineffective assistance of counsel if this is passed, it is unclear how this portion of the proposition would be enforced.

Similar to Proposition 62, Proposition 66 would also require all persons convicted of murder to work while in prison in order to gain funds and pay debts to the victims of their crimes. However, up to 70% of inmates' earnings would be deducted from their wages in order to pay this debt.

Finally, the measure would allow death row inmates to be kept at any state prison. Currently, all male inmates are housed in segregated single cells at San Quentin State Prison. Proposition 66 proponents argue that this level of security costs too much and is not necessary.

Opponents of the measure express concern that speeding up appeals increases the risk of executing an innocent person. They also argue that capital punishment is unethical and the legal injection process is broken and unreliable.

Compatibility

Proposition 62 and proposition 66 are not compatible with each other. If they are both voted through, the proposition with the most yes votes will supersede the other.

Proposition 63: Gun Control

In a nutshell, Proposition 63 creates stricter checks on the sale and purchase of ammunition and includes other components regarding firearms.

First, the measure would require individuals who wish to purchase ammunition to pass a background check through the Department of Justice (DOJ) and buy a 4-year permit which could cost up to a maximum of $50. Large capacity magazines (more than 10 rounds) would be banned. Prop 63 also removes the ownership exemption for pre-2000 owners of large-capacity magazines, and owners must dispose of them. Failure to comply would lead to an infraction charge.

The measure would also create a process for newly convicted felons to turn in their guns.

Also, a court process would be set up to ensure the removal of guns from prohibited individuals who have failed background checks and/or failed to comply with ammunition regulations. The measure would require courts to assign probation officers to report on what offenders have done with their firearms.

Additionally, under this proposition, ammunition dealers would have to obtain licenses to sell ammunition and would be required to check with DOJ that individuals seeking to buy ammunition are not prohibited persons. Ammunition sales will need to take place through a licensed ammunition dealer. Furthermore, Prop. 63 would still require online and out-of-state purchases to be delivered in state and picked up in person, and would move the date of effect forward from July 2019 to January 2018.

Finally, Proposition 63 would change the penalty for theft of firearms from a misdemeanor to a felony. And, individuals previously convicted of a misdemeanor for the theft of a firearm would be prohibited from owning firearms for ten years. The new law would also increase penalties for people who fail to report lost or stolen guns.

Proposition 64: Marijuana

Proposition 64 would make it legal in California for adults over age 21 to possess up to an ounce of marijuana and grow up to six marijuana plants in their homes. It would also regulate recreational marijuana businesses and impose taxes.  

What will be legal: smoking would be permitted in private homes and businesses licensed for on-sight marijuana consumption; the possession of up 28.5 grams of marijuana and 8 grams of concentrated marijuana; the growing of up to six plants in private homes – as long as the area is locked and not visible from a public place.

What won’t be legal: smoking while operating any type of vehicle; smoking anywhere tobacco is prohibited and in all public places; possession on school grounds, in day care centers and youth centers when children are present.

How will it be regulated? The Bureau of Medical Cannabis Regulation would be renamed the Bureau of Marijuana Control and would be held responsible for regulating and licensing any and all marijuana businesses

How will it be taxed? Two new taxes would be created – one levied on cultivation and the other on retail price. Tax revenue would be spent on drug research, drug rehabilitation treatment, enforcement, education, youth programs, and preventing environmental damage resulting from illegal marijuana production.

What are the penalties? Anyone one under the age of 18 convicted of use or possession will be sentenced to drug education or a counseling program and given community service. Selling marijuana without a license will be punishable by up to 6 months in prison and/or a fine of $500.

Individuals serving sentences for activities made legal under Proposition 64 will become eligible for resentencing.

Fact to take note of: as of 2016, both recreational and medical uses of marijuana are still illegal under federal law.

San Francisco Propositions

This year, San Francisco voters also have two criminal-justice related propositions to consider. They are described below.

Proposition G: Charter Amendment Concerning Police Oversight

Proposition G supports the renaming of the Office of Citizen Complaints (OCC) to the Department of Police Accountability (DPA), and would give DPA the authority to access certain records and documents in order to review police policies and incidents involving use of force. Proposition G also allows the DPA to submit their budget directly to the mayor, surpassing the police commission.

Proposition R: Neighborhood Crime Unit

Proposition R supports the creation of Neighborhood Crime Units in major city police departments. These units would dedicate their efforts to preventing crimes that are harmful to neighborhood safety and consist of 3% of all sworn officers, provided there is a minimum of 1,971 sworn police officers working in the city (a prerequisite). The measure would force police to create this special Neighborhood Crime Unit that would respond to both 911 and 311 calls, while focusing on offenses including robberies, break-ins, bike thefts, vandalism, aggressive panhandling and blocking sidewalks with tents.

A vote against Proposition R supports leaving the efforts toward neighborhood crime as a responsibility shared equally among all police officers in the district, with no dedicated task force.

Conclusion

In order for a proposition to pass in California, a simple majority is required - more Yes votes than No votes. There is no priority based on location or size of location.  

A proposition is locked in once it is passed – the legislature cannot repeal a passed proposition without another vote by the voters of California.

This is why it is important to stay up to date on these issues and be well informed on voter-initiated ballot measures. Your vote makes a difference and the outcome of these measures will affect you and your community directly.

For more information on how these laws may affect you, contact Jayne Law Group.