The California District Attorneys Association (CDAA) and Sacramento DA Anne Marie Schubert are asking state Attorney General Kamala Harris to hold off on issuing a title and summary to the criminal sentencing reform ballot measure Gov. Jerry Brown announced recently.

In a filing with Superior Court in Sacramento, the CDAA claims Brown “cut in line” ahead of five other initiatives by taking a ballot measure filed Dec. 22, 2015 and basically doing a “gut-and-amend” with a “complete rewrite.” That, they say, circumvented the public input process, leaving the legislative analyst and the attorney general inadequate time to review and assess the measure.

In a written statement from his office,  Brown said, “It’s perplexing why these DA’s would deny the people of California their right to vote on this important public safety measure.”

The court is closed until Tuesday.

This measure gives Brown an opportunity few politicians ever get: To reach back and fix the unintended consequences of a law he signed nearly 40 years earlier.

When Brown signed the Uniform Determinate Sentencing Law in 1976, he thought he was correcting a bias in the parole board, with some inmates being kept in prison a lot longer than others.

“People were alleging racial disparities,” Brown said in an interview Thursday. “I tried to put more certainty into the process. I thought clarity and certainty of prison time would operate as a deterrent.”

Brown calls the law he signed “relatively modest,” but that was just the beginning.

The next four governors added longer sentences for specific crimes and circumstances, Brown said. “There are now 400 separate enhancements that can add up to 25 years, each one of them, and now you have over 5,000 separate criminal provisions. This is unheard of, when you compare (it with) the Ten Commandments, which have stayed at 10 for 2,700 years!”

All of it resulted in an explosion of California’s prison population, with the burden falling disproportionately on the poor, African-Americans and Latinos, Brown said.

“This is kind of a one-note system now,” Brown said. “Time in the cell, time in the cell. What we need is a more sophisticated system … with restorative justice, drug treatment” and more.

The governor called the handiwork of legislators, past governors and the voters a “motorized legislative rampage,” culminating with the passage of Proposition 21 in 2000, which Brown says, was sold by Gov. Pete Wilson and prosecutors as an “anti-gang” measure. It gave prosecutors the power to charge juveniles accused of committing murder and other serious felonies the ability to try them as adults.

Brown is now promoting a fall ballot measure — The Justice and Rehabilitation Act — to put that power back in the hands of judges.

“Because the job of a prosecutor is to prosecute, not judge,” said the governor. “The job of a judge is to judge and whether someone 14, 15, 16, 17 should be tried in the juvenile court system or transferred to the adult court is primarily a judicial question. Let the judges decide. If you keep that separation of powers, you keep faith with the American tradition.”

Brown’s ballot measure also lets nonviolent inmates earn credit for good behavior. It would relax mandatory sentencing laws and give prisoners who “better themselves” behind bars the chance to get parole after they’ve served their primary sentence. Drawing on his Jesuit training, Brown promotes the idea of forgiveness and redemption.

Brown called the current penal code “a giant phone book, an overreach with very minute prescriptions, and sections and subsections and subsections of subsections referring back to other subsections.’

“And nobody knows what the hell is going on,” he said, “except a few deputy DA’s.”

If Brown collects the 585,000 signatures needed to place this measure on the ballot, and voters approve, it would be the latest and perhaps most sweeping U-turn in criminal justice policy under this governor.

Already, law enforcement groups, led by the California District Attorneys Association, are signaling their opposition to Brown’s measure. “It still has to qualify,” said Sean Hoffman, who lobbies on behalf of the association. “So at this point, the extent of our opposition remains to be seen. There are a lot of unknowns.”

The DA’s may have other targets to focus on this fall. A measure to ban capital punishment and another to expedite executions could also draw their interest, along with one to legalize marijuana.

Whatever ultimately happens with Brown’s ballot measure, California is well on its way to reversing many of the harshest anti-crime provisions of the past four decades.

  • Jerystliru OC

    Certain readers may say: “The early parole proposed for ‘non-violent felons’ sounds reasonable.” This misunderstands two things: (1) by “violent” the proposal means the current conviction, not the history of the felon. One can have prior convictions for rape or murder and get early parole so long as the current conviction is not “violent”; (2) “violent” just means a crime on a list (667.5(c) PC). Non-violent crimes include assault with a deadly weapon, stalking, child porn, sex trafficking, using minors for narcotics sales, domestic violence, residential burglary and rape of an intoxicated person.

    We should also consider how the proposal creates the early parole. For “non violent” crimes, it “excludes” extra years for “alternative sentencing,” which is a legal way of saying Three Strikes without using those terms. Next it excludes years for enhancements” such as committing a felony while on bail or using a weapon. Finally, it excludes “consecutive sentencing,” which means time for multiple felonies; a felon may have committed several felonies, e.g., 10 residential burglaries, and CDC is only required to keep them for 1 burg. Obviously, low level felons won’t have much conduct or history to exclude, but serious felons with bad histories will have a lot to exclude, so it actually rewards the worst actors.

  • Roxy Dermendjian

    Lets just remember that these prisoners will be on parole they are not 100% free! One wrong move and they are back in prison! There are many who will NOT end up back in prison and will better themselves. Most are not animals, you don’t throw them in a cell and say, go sit there and think about what you did, you help them!!! Wayyyy too much money being spent on the prison system when they can be given to schools and more useful places. The sentencing laws are very harsh for some of the crimes committed and have gotten worst with each governer after Brown’s first term. Brown’s reform plan sounds safe and gives people a second chance and let’s not forget it’s for the non violent offenders. I hope CA votes for this reform, it will make a huge change and save tons and gives these inmates the rehabilitation they need. Something has to give, this is crazy! Compare from 1977 till now, FAIL!!


Scott Shafer

Scott Shafer migrated to KQED in 1998 after extended stints in politics and government to host The California  Report. Now he covers those things and more as senior editor for KQED's Politics and Government Desk. When he's not asking questions you'll often find him in a pool playing water polo. Find him on Twitter @scottshafer

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