Post-Election Roundup

At WitnessLA, we have been following a handful of the 17 ballot initiatives Californians either approved or shot down on Tuesday. There were four main criminal justice-related initiatives (plus one gun control measure).

If you haven’t yet seen the final results of the California races and initiatives, you can find them: here.

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THE CRIMINAL JUSTICE REFORM SIDE OF MARIJUANA LEGALIZATION

On Tuesday, 64% of California voters approved Proposition 64, which legalizes marijuana for recreational use in the state.

Along with California, the states of Nevada, Massachusetts, and Maine legalized recreational pot use, and Arkansas, Florida, and North Dakota voters approved marijuana for medical use.

California won’t start handing out licenses to sell recreational weed until 2018, but some provisions have already kicked in. People 21-and-over can possess up to an ounce of marijuana at a time. Adults over 21 can also grow up to six plants, as long as they are out of public view. No one can use marijuana in public.

The initiative will also counteract the criminalization of marijuana use (which has disproportionately impacted people of color) by reducing marijuana-related sentences and opening up a path for people who have committed certain marijuana offenses to petition to have their records changed or expunged.

Possession of more than an ounce of weed would be a misdemeanor offense. The penalty for selling-related offenses would be reduced.

The OC Register’s Brooke Edwards has more on how the initiative will help marijuana offenders leave lock-up sooner and change their records. Here’s a clip:

…more than 6,000 people serving time…could potentially have their time behind bars shortened or even go free if Prop. 64 passes on Tuesday, according to an estimate by the Drug Policy Alliance, which is funding the measure.

Another 1 million people convicted of marijuana-related misdemeanors and felonies could petition to have their records changed or cleared, the nonprofit organization estimates. That would give them wider access to jobs, housing and other services that are currently out of reach.

Beyond the obvious changes the measure will have in California, proponents say that the passing of Prop. 64 is a big blow to prohibition and the war on drugs at the national level.

The New York Times’ Thomas Fuller has more on the larger implications of the marijuana win in California—the “epicenter of marijuana cultivation for the country”—in particular. Here are some clips:

With the addition of California, Massachusetts and Nevada, the percentage of Americans living in states where marijuana use is legal for adults rose above 20 percent, from 5 percent.

Representative Earl Blumenauer, Democrat of Oregon and a supporter of legalization, said Tuesday’s votes would add to the pressure on the federal government to treat cannabis like alcohol, allowing each state to decide on its own regulations.

“The new administration is not going to want to continue this toxic and nonproductive war on drugs,” Mr. Blumenauer said.

The federal government’s ban on the drug precludes the interstate sale of cannabis, even among the states that have approved its use. But Tuesday’s votes created a marijuana bloc stretching down the West Coast, and Gavin Newsom, the lieutenant governor of California, said he saw an opportunity for the states where recreational marijuana is now legal to “coordinate and collaborate” on the issue, including applying pressure in Washington to relax the federal ban.

[SNIP]

“I think of this victory in California as a major victory,” said Lauren Mendelsohn, the chairwoman of the board of directors of Students for Sensible Drug Policy, a group that has campaigned against the government’s war on drugs. “It shows the whole country that prohibition is not the answer to the marijuana question.”

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CALIFORNIA KEEPS DEATH PENALTY, VOTES TO ACCELERATE IT

CA voters also rejected a bill that would have abolished the death penalty. There are 728 men and 21 women currently on death row in the state. The initiative only garnered 46% of the vote.

While Californians once again voted to keep the death penalty in place, a competing ballot initiative, which will speed up the death penalty appeals process, did make it past voters—barely. Critics of Proposition 66 argue that truncating the appeals process could lead to the execution of innocent people. (We’re inclined to agree.) According to the California Innocence Project, 150 people have been declared innocent after a death sentence in the United States.

In addition to speeding up the deadline for filing petitions, Prop. 66 also shortens the deadline for appointing lawyers for death penalty appeals. And if appointed by the California Superior Court, lawyers would be forced to accept the appointment if they want to stay eligible for future non-capital cases. The Sacramento Bee’s Alexei Koseff has a good explanation of the potential pitfalls:

Currently, sentences are appealed directly to the California Supreme Court, which assigns lawyers to defendants from state-funded agencies like the Office of the State Public Defender or, if none are available, private attorneys who meet certain qualifications.

Given the enormous backlog of cases, even that can take years. So in order to make lawyers available to defendants upon their sentencing to death, Proposition 66 would allow the courts to also appoint attorneys who are qualified for the most serious non-death penalty appeals. Those lawyers would have to accept the appointment in order to remain eligible to receive other non-death penalty cases in the future.

There are approximately 400 death row inmates currently awaiting counsel for their appeal or some other legal challenge to their sentence. Natasha Minsker, director of the American Civil Liberties Union of California’s Center for Advocacy and Policy, said there are simply not enough private attorneys willing to take on the cases for the low compensation provided, especially given the time crunch Proposition 66 would impose on preparation.

“They would just have to do this full time, which is not practical for most people,” she said.

While mail-in and provisional ballots have not yet been counted, Prop. 66 held 51% of the vote as of Wednesday night. A California law firm has already filed a challenge to the ballot initiative, seeking a stay from the state Supreme Court.

San Jose Mercury News’ Tracey Kaplan has more on the response to Prop. 66’s win. Here’s a clip:

…The ACLU, NAACP and other groups have said they are prepared to duke it out in court. Experts said they may be able to challenge the measure on the grounds that conscripting lawyers in death penalty cases and threatening to take their livelihood away (by not appointing them in other matters) if they refuse would be illegal.

Another line of attack could be on the grounds that requiring defendants and their lawyers to challenge their convictions in trial court would require an amendment of the state constitution. To put such an amendment on the ballot, supporters would have had to collect more signatures than they did for Proposition 66.

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VOTERS SAY YES TO GOVERNOR JERRY BROWN’S CRIMINAL JUSTICE REFORM INITIATIVE

Proposition 57 also passed in California by a wide margin—64% voted in favor of Prop. 57. We’ve written a lot about the criminal justice reform initiative in the months leading up to the elections. Now that the bill has passed, it’s time to take a look at what comes next.

For those unfamiliar, Prop. 57 will take the power to transfer kids to adult court out of the hands of prosecutors and give the control back to judges. Advocates expect this change to result in fewer kids being charged as adults. Prop. 57 will also increase parole eligibility for non-violent offenders who have completed the base sentence for their primary offense. This means that prisoners will be able to go before the parole board prior to completing time added onto a base sentence via sentence enhancements, consecutive sentences, and alternative sentences. Prop 57 will also boost access to early release “good time” credits.

The Juvenile Justice Information Exchange’s Sarah Barr has more on the upcoming reforms. Here are some clips:

Under the new law, the only way for a juvenile in California to end up in adult court will be if a judge decides that is the most appropriate setting for him or her. The judge will have to consider criteria that take into account teenagers’ ongoing development and potential to change before sending him or her to adult court.

The criteria, which were expanded under an earlier law and included in Proposition 57, are an improvement that will give judges a fuller picture of a youth’s situation, Burrell said.

“The things that a court will look at are much more helpful to teenagers than the previous criteria were. They’re much more developmentally appropriate,” she said.

In addition, the law no longer places the burden on juveniles to prove they deserve to stay in juvenile court, said Frankie Guzman, a staff attorney at the National Center for Youth Law. Prosecutors instead will have to make their case to a judge.

Analysts and supporters expect the changes will result in fewer juveniles ending up in adult court. But that means the juvenile system has to be prepared to handle more teenagers charged with serious crimes, who likely need significant services and treatment, Guzman said.

“We also have to make sure the programs and services line up and actually meet the increased demand because we’re going have more high-needs kids. If we’re going to serve public safety well, we have to serve them well,” he said.

The state should focus on improving behavioral and mental health services, mentoring programs and other interventions that can put young people on a healthy path, Guzman said. Locking teenagers up, albeit in the juvenile rather than the adult system, is not a solution for most young offenders, he added.

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NOW THAT KAMALA HARRIS IS LEAVING THE AG’S OFFICE, WHO WILL TAKE HER PLACE?

Voters elected California’s Attorney General Kamala Harris to the US Senate. Harris will be the first Indian American woman in the Senate, and California’s first female African American senator.

Now that Harris is moving on, the question that presents itself is: Who will Governor Jerry Brown appoint to take the position of Attorney General. The appointee would hold the post for two years until the 2018 election. There have been many speculations as to possible candidates, including Chief Deputy Attorney General Nathan Barankin, California’s first lady, Anne Gust Brown, and any one of a number of capable current county district attorneys.

The Sacramento Bee’s Jeremy White has a good rundown of the possibilities. Here’s a clip:

Whoever Brown picks, he faces a central choice: whether to choose a placeholder candidate who would step aside rather than run for re-election in 2018 or to elevate someone with the desire to try to serve for almost a decade and the political and financial wherewithal to mount a serious run. That person also would have the huge advantage of using the ballot label, “California Attorney General,” in the 2018 election.

“Is the governor trying to pick someone who will be consistent with his perspectives and there for ten years? Or is it a caretaker to keep the office functioning well for two?” said former Attorney General Bill Lockyer. “Does he want to have an impact on who the next attorney general or maybe a future governor will be? Or does he prefer to just have an open primary scramble and whoever wins the election gets it in 2018?”

Administration officials like Brown chief of staff Nancy McFadden or First Lady and top Brown aide Anne Gust Brown, both attorneys and members of the governor’s inner circle, often surface in speculation about who could be tabbed for a short-term tenure. Chief Deputy Attorney General Nathan Barankin, who currently serves under Harris at the Department of Justice and would automatically be elevated to acting attorney general if she resigns to join the Senate, could also slide into the job.

Those options remain firmly in the realm of speculation. Barankin and McFadden did not respond to emails seeking comment. Speaking to reporters, the governor made light of the suggestion he might appoint his spouse.

“My wife is fully employed,” Brown said.

Lockyer acknowledged that “the political chattering class loves to suggest Anne” but added that Gust Brown has said she is not interested and posited that her assuming such a prominent spot “doesn’t seem to be consistent with where (the Browns’) lives together are heading” as Gov. Brown nears a potential end to decades in public service when his fourth term ends in 2018.

“It starts with (Gov. Brown) being utterly unpredictable,” Lockyer said. “It’s very hard to reliably forecast.”

Brown could also dip into the private sector. Prominent trial lawyer Joe Cotchett said the topic of a successor came up in recent conversations with the governor. Although Brown did not go into detail about whom might appoint, Cotchett said, he made it clear he preferred a long-term choice. A Brown spokesman called a report that the two had discussed an appointment accurate.

“He only wanted someone who could win in 2018,” Cotchett said.

A longer-term choice could include any of a number of prominent district attorneys. That list includes Alameda County District Attorney Nancy O’Malley, Los Angeles County District Attorney Jackie Lacey, Santa Clara County District Attorney Jeff Rosen, San Diego County District Attorney Bonnie Dumanis and San Francisco County District Attorney George Gascón, as well as Los Angeles City Attorney Mike Feuer. Through staff, all of those district attorneys either declined comment or deflected the question by saying they were focused on their jobs. The platform of serving as attorney general would vault any of them into serious contention in a state campaign.

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MEET THE NEW SUPES

California Rep. Janice Hahn will step into the seat of outgoing Supervisor Don Knabe in District 4, which includes a stretch of coast from the city of Long Beach to Venice, as well as part of the San Gabriel Valley.

Kathryn Barger will take over for Supervisor Michael Antonovich in District 5, which covers the Antelope Valley, Santa Clarita, a portion of the San Gabriel Valley, and a portion of the San Fernando Valley.

With the addition of the two new supes, for the first time ever, the board will have a female majority, comprised of Hahn, Barger, Hilda Solis, and Sheila Kuehl, to work alongside Supe. Mark Ridley-Thomas.

Hahn, who created the Watts Gang Task Force in 2005 during her time as an LA City Councilmember, has come out in support of mental health diversion, the hiring of more LA County Sheriff’s deputies, and improved community policing. For more about what Hahn’s victory will mean for justice in LA County, read this April LA Daily News story by Dakota Smith.

Barger has worked for Supe. Antonovich for more than 25 years. Back in May, the Chronicle of Social Change’s Jeremy Loudenback interviewed then-candidate Barger, asking important questions about her views on child welfare and juvenile justice reform. The newly elected 5th District Supervisor had some promising things to say about keeping low-risk kids out of lock-up, increasing community-based programs for justice system-involved kids, and “preventing crossover of our foster youth into juvenile justice system,” and other pressing issues.

We’ll likely have more on the two new supervisors in the coming weeks.

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A FEW MORE WORTHY POST-ELECTION READS

The Marshall Project has done an excellent job of presenting the election’s criminal justice highlights at the national and state levels, as well as clearing up what the new presidency might mean for justice in the near future. For example, TMP’s editor Bill Keller points out that the “law and order” president-elect Donald Trump has mentioned the possible appointment of former NY Mayor Rudy Giuliani as US Attorney General. Keller also says that Trump may also roll back President Barack Obama’s recent criminal justice efforts, which included placing limits on when and how long locked-up kids can be placed in solitary, as well as an order to “ban the box” on federal employment applications. Here’s a clip:

Trump’s victory may be fatal to the unusually bipartisan campaign to reduce prison sentences, invest in rehabilitation, and otherwise render the federal justice system more humane and effective. The Republican Party platform adopted at the July convention nods to red states that have reduced prison populations and calls for “mens rea” legislation, which would oblige prosecutors to prove a defendant intended to break the law. In general, Trump’s law-and-order entourage — Giuliani, New Jersey Gov. Chris Christie, Milwaukee County Sheriff David Clarke and others — constitutes a virtual counter-reform movement, favoring longer sentences, fuller prisons and militarized policing. His natural allies on Capitol Hill are men like Sens. Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.), who this year blocked even the most incremental reforms.

Fusion’s Casey Tolan says Trump’s victory is not a death knell for criminal justice reform in the US, however:

The president does not actually have that much power over the policies that lead to mass incarceration. Only about 12% of prisoners in America are in federal prisons run by the executive branch, while the vast majority are in local jails and state prisons. In many ways, local district attorneys have a bigger impact on criminal justice and incarceration in their districts than the president does.