Law and Software

Jeanne Woodford was at Mill Valley Library last Friday evening. She gave a presentation to about 150 yessers on 34, including my 1L big-sib from Davis who has become a mountain dweller (hi Josh!). If there was a single Nay in the audience she kept very quiet. “Yes on 34” is the subliminal-command/title of the campaign to overturn the death penalty in California this coming election.

I will, of course, abstain – not for the usual reason, that in this land of taxation without representation, I am still an alien and like felons, I’m not allowed to vote on issues that matter deeply to me. But because “yes on 34” is at the same time completely, wonderfully right and nightmarishly, terribly wrong.

But it’s not this particular campaign that is wrong. The problem is the idea that the voter initiative system in California should dominate the criminal justice system. The last 40 years has been a history of unintended consequences of voter propositions, from the Death Penalty Act (Prop 7 in 1978) to Truth in Evidence (Prop 8 in 1982), Three Strikes (Prop 184 in 1994) , Marsy’s Law (Prop 9 in 2007) and others.

And it’s not the rights and wrongs of any of these propositions that is the problem. Its the vicious circle. There aren’t many ways you can lose your seat in the legislature other than being term-limited. But one way is to appear soft on crime. So when there’s a big criminal justice issue, the only safe way to get it through is to leave it to the voters. And when the system is broken, no-one dare change it, because it was put in place by… the voters. It makes sense for people to vote on issues that they have a direct interest in – whether to pass a school bond, whether to increase taxes, whether to raise the speed limit. Issues that affect everyone are the best fit for a voter initiative. But when people vote on things that affect others, it all gets complicated. Prop 8 showed just how problematic it is when people are voting on whether to grant rights to others. Some of the public outcry against President Obama’s executive order to provide short term relief for the Dreamers highights the fact that sometimes mob-rule isn’t the best way to move forward. Rather than a “yes on 34” death penalty campaign, I wish there had been an initiative on a constitutional amendment to take criminal matters out of the hands of the voters.  A no-on-initiatives initiative.

Voting on what your gut tells you, free of personal consequences, is one millstone that hangs over the criminal justice system in California. Another is unlimited discretionary spending because “you can’t put a price on public safety.” Here’s an example. A middle-aged man or woman drinks and drives. No previous criminal record. One DUI in the past. He/she causes an accident and kills someone. The DA looks at the case and makes a choice. Vehicular Manslaughter or Second Degree Murder. He wants to throw the book at the offender. He charges Second Degree Murder.  Vehicular Manslaughter comes with a 12 year sentence. Second Degree Murder gives you 25 to life. The DA  just chose to spend somewhere between a half million and a million extra dollars of taxpayers money (at least 13*$40k, and probably much more). Did we get value for money? Are we any safer?

There are about 6000 felony trials in California each year – and less than 10% of them bring in a not-guilty verdict. Lets simplify and say that means 4000 guilty defendants go to trial. Only a small percentage of these will have rejected a plea deal and chose to roll the dice with a jury trial. Most of them will have been charged with the maximum, so there is not even a slight benefit to pleading guilty. They get their day in court, and then they go down.

For many, they get the maximum sentence because they deserve nothing less.  But that’s not always the case. Let’s be conservative and say that a quarter of those who don’t get to plead guilty have been overcharged. Some will be facing Second Degree Murder. Others life without parole, where they might have pled guilty to life with the possibility of parole. Of the 4000+ “going through the motions” trials where the only question is how guilty someone is,  our conservative estimate means there are a 1000 trials each year where there is no extra benefit – where the DA has used his discretion to waste $1M extra of taxpayers money, not including the costs of trial preparation, and the trial itself.

There are 58 counties in California. So that’s about 20 such trials per county per year. And upwards of $20M of discretionary spending by each California District Attorney. The bottom line is that each DA has discretionary spending power of about $50k a day. If the governor or anyone in the legislature had that sort of access to funds, there would be constant audits, checks and balances, and massive public scrutiny.

I really went low on these figures. More likely you can double them and still be low. Imagine the savings if local prosecutors could only recommend charging, and the final decision was made based on an objective standard at state-level. There was a radical overhaul to the criminal justice system in the United Kingdom in the late 1980s which did exactly that. Charging decisions were taken out of the hands of the police and handed to the Crown Prosecution Service. Not only did it stop prosecutors bankrupting the system, but it led to uniform charging. Imagine someone in Riverside getting charged with the same crime for the same offense as someone in San Francisco or San Diego.

Today we have a death penalty initiative. It is insane to spend so much money over so many years for people who will likely live on death row until they die of natural causes. Tomorrow someone will realize that overcharging and lifelong sentences are a powerful punishment for the first 20 or 25 years of an offender’s sentence, but that when he reaches old age, the murderer sentenced to life without the possibility of parole is guaranteed free medical and dental treatment while the rest of us watch our health insurance premiums going through the roof as we approach retirement. And someone will point out that while it costs about $40k a year to warehouse a prisoner under the age of 55, that figure trebles to over $130k a year for the elderly. Imagine the worst criminal – on a ventilator, in a wheelchair, being taken to hospital for treatment. 3 guards protecting the public from a dying old man. Will we have yet another initiative to stop an elderly prison population completely bankrupting the state of California in 10 years time?

The first round of realignment has moved many non-violent offenders (the no-no-no’s) back into local jails and back to their local communities. The counties, and the electors can choose how best to spend their money. They can warehouse them and pay for it through property taxes. Or they can find alternatives – with less emphasis on retribution and more on  keeping people away from crime in the first place. When it eventually comes – and it will –  the second round of realignment will deal with the discretionary spending of District Attorneys. The state will house their prisoners, for as long as the DA and the local community want. But the state won’t foot the bill.

Whether you vote to keep the death penalty or to make sure that murderers spend their whole life in prison with no possibility of parole, one thing is certain. You’re paying for it. And as long as you’re voting for it, you are making it impossible for the legislature to go for any sane reforms. Do you know if someone needs more than 12 years in prison after a DUI killing in order to become a productive and responsible person again? I don’t. Do you know when people stop being rehabilitated and start being institutionalized? I don’t. Do you know what unintended consequences will come out of Prop 34? I don’t. Vote no on initiatives. Please.