Responding to deep concerns about sexual violence at California’s college campuses, the state Legislature unanimously passed two bills in recent weeks. But Gov. Jerry Brown vetoed one of the measures, the second straight year he has surprised advocates of a crackdown on campus sexual misconduct.

Assembly Bill 1896 – introduced by Assemblywoman Sabrina Cervantes, D-Riverside – was spurred by concern that vague language in the state Education Code might have required that crisis counselors at public or private colleges disclose to law enforcement authorities their knowledge of criminal allegations.

Counselors in other settings who hear about alleged sexual violence are generally given guarantees under state law allowing them to communicate confidentially with victims. AB1896 extends that protection to campus counselors. It was supported by the American Association of University Women of California, the California Faculty Association, the California State Student Association and the California State University system.

Brown signed the bill on July 18.

In a statement, Cervantes said she was “elated” that the governor and her fellow lawmakers recognized the “strong need for sexual assault counselors to provide a safe environment and appropriate assistance for survivors.”

But a different fate awaited Assembly Bill 2070, by Assemblywoman Eloise Gomez Reyes, D-Grand Terrace, even though it had many of the same college organization supporters as AB1896 and some significant backing from such outside groups as the Los Angeles County Board of Supervisors and the California chapter of the National Association of Social Workers.

It would have required each CSU, UC and California Community College campus to “implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence and stalking.” The bill would have expanded what’s covered on these topics in orientation sessions for incoming students to include “intimate partner and dating violence.”

There is no evidence the measure faced any criticism in the deliberation process. But the Los Angeles Times reported that Brown vetoed AB2070 on July 18 because he considered it to be duplicative of requirements already included in state law. The governor also said he wants to see a pending report from a panel of experts on campus policies on sexual violence before changing state law.

Brown only prominent Dem to question Obama rules

That panel was appointed last year after Brown vetoed Senate Bill 169 by Sen. Hannah-Beth Jackson, D-Santa Barbara.

That measure was far more sweeping than the bills Brown decided on this month. It would have written into state law some of the federal regulations on campus sexual violence created by the Obama administration. Jackson introduced the bill after reports that the Trump administration would scrap the rules, which proved correct.

The Obama administration rules were controversial in civil liberty circles. Critics said they led to limits on due process for students accused of sexual misconduct by encouraging colleges to lower their standards in determining guilt and by limiting how vigorously the accused could present a defense.

But activists said the rules, based on the federal Title 9 law requiring equal treatment of the sexes, had a positive effect on campuses – promoting an atmosphere in which victims were more likely to come forward in the belief they would be treated fairly and humanely.

Brown was not persuaded. He wrote that “thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault – well-intentioned as they are – have also unintentionally resulted in some colleges’ failure to uphold due process for accused students. … We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity.”

The Atlantic magazine reported in October that Brown appeared to be “the first prominent Democratic elected official” to raise fairness concerns about the Obama rules.

The main policy is known as realignment. Pushed through by Gov. Jerry Brown in 2011, the two new laws allow “non-violent, non-serious and non-sex offenders to serve their sentence in county jails instead of state prisons,” according to an explanation from the California Department of Corrections and Rehabilitation. The department says that no state prisoners had their time reduced and that the laws did not provide any early releases.

The second policy is Proposition 47, a statewide initiative that passed 60 percent to 40 percent in November 2014. As Ballotpedia explains, the initiative “classified ‘non-serious, nonviolent crimes’ as misdemeanors instead of felonies unless the defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes.” It also permitted resentencing “for those currently serving a prison sentence for any of the offenses that the initiative reduces to misdemeanors.” That measure did therefore lead to early releases.

The state passed a variety of other sentencing-reform measures beginning in 2010. For instance, California had long taken a tough-on-crime approach, including passage of the nation’s toughest “three strikes and you’re out” laws in 1994, in the midst of frighteningly high crime rates. But even that signature crime-fighting law was revised, as voters passed, 70 percent to 30 percent, a 2012 statewide initiative that required a life sentence only if the third strike were serious or violent.

The new laws reduced prison overcrowding, although they didn’t actually reduce the amount of tax dollars spent on the prison system. The big question: What have they done to crime rates? A spike in some crimes over that period has led to a vociferous debate, with Republicans and some moderate Democrats fanning fears of a crime wave. One Republican gubernatorial candidate, Abel Maldonado, ran for governor in 2014 on an anti-crime platform, but didn’t gain traction.

Currently, Democratic Assemblyman Jim Cooper, a former sheriff’s captain from Elk Grove, is leading efforts qualify a ballot measure for the 2018 general election that would roll back much of Proposition 47. It also would roll back the loosened parole requirements in Proposition 57, which passed on the 2016 statewide ballot, and expand the list of crimes that requires collection of the perpetrator’s DNA, according to an Associated Press report.

Such pushback is due in large part to fears of growing crime rates. “Since the passage of Proposition 47 by voters in 2014 and the signing of AB109 in 2011, violent crime has been on the rise in California, up 12 percent in 2015 statewide according to the FBI,” according to a statement in March by Sen. Jeff Stone, R-Riverside County. Politifact double-checked his claim and found a one-year violent crime increase (from 2014 to 2015) of 8.4 percent.

That’s certainly enough to spark concern, but it’s hard to assess crime data based on short periods of time – and even harder to trace crime increases or decreases to any particular policy cause. New research from the Center on Juvenile and Criminal Justice looked at the entire 2010-2016 period of criminal-justice policy reform and found some mixed results. Overall, however, the group explains that the state’s crime rate was “stable” over that time.

“Urban crime rates in California declined precipitously through the 1990s and 2000s,” wrote author Mike Males. “Since 2010, crime in California has stabilized, hovering near historically low levels.” Males compared the first six months of 2016 (the latest reporting period) with the first six months of 2010 and found that “total crime rates experienced no net change, while property crime declined by 1 percent and violent crime increased by 3 percent.”

National crime data show a small overall uptick nationwide, which might suggest that something other than California-only realignment and sentencing reform policies were at work here. Crime data often is affected more by local factors, and indeed the study finds that “crime rates at the local level have varied considerably.” For instance, crime rates shot up 18 percent in Downey, but dropped an astounding 29 percent in Santa Clara.

Regarding the big cities, the report found increased violent crime rates in Fresno, Long Beach, Los Angeles and San Jose – but lower violent crime rates in Oakland, Sacramento, San Diego and San Francisco. Likewise, some big cities (Long Beach, Los Angeles and San Diego) faced rising property crimes, but others (Fresno, Oakland, Sacramento, San Francisco and San Jose) saw falling rates of property crime from 2010 to 2016.

The report found “no visible change” due to realignment and called for “more data” before “drawing conclusions about Prop. 47’s effect on crime.” Other studies from last year echo these conclusions. These numbers, based on the newest FBI statistics, suggest that current concerns about a justice-reform-driven crime wave are overblown.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Gov. Jerry Brown’s signing of

But will the laws actually lead law enforcement agencies to routinely test nearly every rape kit, as advocates want? That’s very much in doubt, given the long history of police chiefs’ and sheriffs’ resistance to the idea.

The three new laws do not require more testing.

AB41, by Assemblyman David Chiu, D-San Francisco, requires law enforcement agencies to regularly report how many untested kits they have to a state database.

AB1312, by Lorena Gonzalez Fletcher, D-San Diego, and Assemblyman Marc Berman, D-Palo Alto, requires law enforcement agencies to preserve untested rape kits for at least 20 years.

AB280, by Assemblyman Evan Low, D-Campbell, allows individual state income tax filers to make a donation to help police agencies pay for testing rape kits.

The rape kit backlog – estimated at 13,500 currently in California and at 400,000 in the U.S. in 2015 – has been labeled a national disgrace by sex assault support groups and by such journalists as New York Times columnist Nicholas Kristof. They argue that the backlog results not just because of a lack of resources – rape kit tests cost about $1,500 – but due to officers’ skepticism about rape allegations. This view is backed up by Michigan State University professor Rebecca Campbell’s research project focusing on the Detroit Police Department, which found many officers believed victims were lying or were of questionable character.

‘Cold hits’ after ending backlog solve thousands of crimes

Advocates of ending the backlog say it contributes to higher crime by leaving criminals free to plague society. They cite the success police agencies which have cleaned up their backlogs have with “cold hits” of criminals already on file in the FBI’s CODIS (Combined DNA Index System) database. “Cold hits” have helped close the files on thousands of unsolved crimes.

But police agencies say officers do a better job dealing with sexaul assault victims than they may have in the past, thanks to a focus on the issue by groups like the Police Executive Research Forum. They also argue that only testing rape kits in cases that have a chance of leading to convictions makes sense – if the alleged victim won’t testify or identify a suspect, why use limited resources to continue investigating?

In 2014, at the request of the Legislature, California State Auditor Elaine Howle weighed in on the rape-kit testing debate, doing so with an audit of three large law enforcement agencies. While her final report recommended that all rape kits generally be tested, it did not offer a definitive view of the value of such a policy.

“Even though kit analysis can aid investigations of sexual assaults, the extent to which analyzing more sexual assault evidence kits than are currently being analyzed would improve arrest and conviction rates is uncertain, and additional information is required to determine the true benefit and cost to California of such a policy change,” the audit noted.

The audit was based on how the Oakland Police Department, the Sacramento County Sheriff’s Department and the San Diego Police Department dealt with the approximately 1,900 rape kits they gathered from 2011-2013.

Of the 1,900 kits, nearly 850 had been tested, nearly 140 were at labs for tests at the time of the audit and about 910 – or 48 percent – had not been tested.

The 2017 session of the California Legislature may be remembered as when the criminal justice reform movement in America’s largest state lost its momentum.

The movement entered the session with a head of steam after winning majority support from the Legislature and then the public for Proposition 47 in 2014 and for Proposition 57 in 2016. The former measure reclassified dozens of “nonviolent” and “nonserious” offenses from felonies to misdemeanors. The latter made it easier for nonviolent felons to win parole.

This year, the same rationale that civil liberties groups, progressive think tanks and minority organizations offered for Propositions 47 and 57 was invoked in seeking sweeping statewide bail reform and a pilot program allowing drug addicts to inject themselves in safe settings in several cities and counties. That rationale: California’s criminal justice system is not only far too punitive, it focuses too much on punishment and not enough on rehabilitation.

State Sen. Bob Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland, led the push for putting sharp limits on the state’s money bail system in favor of a system that largely trusted suspects without serious criminal histories to not go on the lam. They argued that California’s highest-in-the-nation bail requirements were unnecessary to get the accused to show up for trial and had the effect of destroying lives of suspects by forcing them to spend months in jail, unable to post 10 percent of their bail and secure a guarantee from a bail bondsman.

The fact that more than half the people in state jails are there not because they had been convicted of crimes but because they can’t post bail resonated not just with those who saw bail laws as unfair but with those who saw the system as wildly expensive.

This prompted optimism from Hertzberg in an interview with the Los Angeles Times before the 2017 session began: “Now you have a whole host of groups on both sides of the aisle looking at the cost and fairness of the system,” he said.

But the high point for the reform push came on May 31, when Hertzberg’s SB10 passed the Senate 26-11. A day later, the Assembly rejected AB42, Bonta’s identical bill, on a 35-37 vote.

Supporters of the measures expressed frustration that the governor waited until late August to offer support – and then only with the proviso that the bills be taken up in 2018, not in the closing days of the 2017 session. But it’s an open question whether Brown could have muscled the measures to passage. While other local and state governments have reported success with bail reform, Maryland’s adoption of no-cash bail reform last year has won wide attention for its troubled start. The Washington Post reported in July that the number of trial no-shows had more than doubled under the new system.

No to ‘government-sanctioned drug dens’

The other proposed reform made similar halting progress before being put aside for possible reconsideration in 2018. AB186 by Susan Talamantes Eggman, D-Stockton, would have established safe areas in a handful of cities and counties for drug users to inject themselves without fear of being charged with crimes, among several provisions. Drug law reformers argued that this would reduce the carnage from the opioid crisis by making it easier to treat overdoses and by getting addicts in touch with health care professionals. The program would lapse in 2022.

But law enforcement groups voiced sweeping objections to the law, saying it would create “government-sanctioned drug dens with no requirement that participants enter treatment,” in the words of a state Senate analysis, among many criticisms.

The bill passed the Assembly on June 1 with 21 votes – the bare minimum for approval – before being rejected by the Senate on Sept. 12 after gaining only 17 of the needed 21 votes.

Nearly 10,000 inmates could leave California prisons within four years, another consequence of the state’s long struggle with the judicial system over the way it incarcerates convicts. 

“As the state prison population comes close to exceeding a court-mandated limit, the California Department of Corrections and Rehabilitation is pursuing new regulations that aim to get more inmates paroled more quickly over time,” the Sacramento Bee reported. “The proposed rules, originating from voter approval of Proposition 57 in November and unveiled [March 24], would allow ‘nonviolent’ felons to first seek parole at the conclusion of the base term for their primary offense, before serving additional time for other charges and enhancements that can add years to their sentence.”

A vote’s consequences

Through Prop. 57, new regulations were slated to come into effect instituting a credit system for inmates hoping to reduce their sentences. “The main regulation is the credit earning system, according to the California Department of Corrections and Rehabilitation,” KXTV noted. “For milestone completion credits, an inmate can earn them when they complete a specific education or career training program that’s also attached to attendance and performance requirements. Prop. 57 increases the amount of time an inmate can earn for these types of credits from six to 12 weeks per year.”

“Rehabilitative Achievement Credits are where inmates can participate in approved self-help groups or other activities promoting the rehabilitating or positive behavioral changes in an inmate. Inmates are able to earn up to four weeks of these credits annually. The last are Educational Merit Credits where inmates who successfully complete and achieve a GED, high school diploma, college degree or alcohol and drug counseling certifications.”

Working the numbers

Although the state’s prison population is closing in on the court-mandated limit of around 116,000, the new regulations must still be approved by California regulators. “If that happens, parole eligibility would change April 12,” KSBY noted. “There would be a public comment period. The early release would be phased in starting May 1, while the public review is underway. Final approval is possible by October.” In another shift, the Associated Press reported, the rules “would let the state phase out a long-running program that currently keeps nearly 4,300 inmates in private prisons in other states.”

That regime came under criticism last year as the federal government withdrew similar efforts. “California has transferred prisoners to private institutions, some of them in other states, for more than five years to relieve overcrowding in state prisons, but state, and local, use of them is beginning to be questioned,” the Chronicle reported last year. “One Bay Area lawmaker has called for the state to stop sending inmates to prisons far from their families or California inspectors, and another legislator is moving to stop cities and counties in California from contracting with private prisons to hold federal immigration detainees.”

Parole push

Continued pressure to limit action on some rules could come from law enforcement. “Police and prosecutors opposed the move for easier parole, arguing it would put dangerous offenders back on the streets too soon,” Voice of America recalled. “The new rules also change the process that prosecutors and victims use to object to early parole, doing away with lengthy formal parole hearings in favor of written statements. Prosecutors say victims have the right to be heard before any decision for parole is made.”

The new rule on parole “remains the top concern for the California District Attorneys Association,” San Mateo County District Attorney Steve Wagstaffe, the group’s president, indicated to the Associated Press. “Under the changes, prosecutors and victims would have 30 days to object in writing to the earlier paroles. It’s a much different process than the hours-long hearings used to consider parole for life-term inmates such as followers of cult leader Charles Manson, for instance, and the governor will have no role in the largely administrative decisions.”

In a fresh bid to reform California’s criminal justice system, Sacramento lawmakers have begun to advance several bills, many aimed at softening juvenile punishment. “Democratic state senators Holly Mitchell of Los Angeles and Ricardo Lara of Bell Gardens are proposing four bills intended to keep more youthful offenders out of the criminal justice system,” as the Associated Press noted.

“State senators in California on Monday introduced an eight-bill justice reform package focused on juveniles that would create a minimum age incarceration standard, a ban on sentencing minors to life without parole and Miranda rights protections,” according to Courthouse News. “Senate Bill 190 would extend financial relief to families with children in the justice system by nixing court administrative fees, and Senate Bill 395 would require minors to consult with an attorney before waiving their rights during interrogations.” Senate Bill 439, another piece of legislation, would tweak jurisdictional rules to ensure minors under the age of 12 do not wind up in juvenile court.

String of changes

At a recent hearing around the bills, lines of support and opposition took familiar shape. “Witnesses urged lawmakers to support legislation they said would ensure the fair treatment of children under the law,” the Los Angeles Times recalled. “But law enforcement groups and prosecutors said it could keep authorities from holding offenders accountable and hinder officers from carrying out investigations.”

At a recent appearance at a Sacramento elementary school, the bills’ two sponsors worked to portray their changes in rational and moral terms. “Mitchell, who chairs the Senate Budget Committee, acknowledged some minors are involved in serious crime,” Capital Public Radio reported. “But she spoke out against incarcerating children under 12 years old as if they were ‘pint-sized’ adults.”

Activists pushing to further liberalize California’s incarceration laws have seen statewide success focusing on the fraught relationship between crime and child punishment. “In recent years, state legislation and propositions have attempted to create greater court protections for young offenders and to lower the population of incarcerated youth, as research on brain development has found that children learn differently from adults and should be afforded a criminal justice approach centered on rehabilitation,” the Times noted separately. “The latest victory for criminal justice advocates was Proposition 57, which will now require a judge’s approval before most juvenile defendants can be tried in an adult court.”

Curbing prison culture 

But adult justice also received some attention, with proposed amendments “weakening drug enhancement sentencing procedures, nixing public defender reimbursement fees for individuals found innocent by the court and sealing arrest records of those not convicted of a crime,” according to Courthouse News. “The lawmakers hope the reforms will reduce county costs related to minor drug sentences and remove employment barriers for people accused but not convicted of a felony or misdemeanor.”

Other recent criminal justice reforms have advanced quickly in Sacramento. One, targeting abuses in prison snitch rewards, passed its first legislative test with flying colors. “Assembly Bill 359 on Tuesday sailed unanimously through the state Assembly Public Safety Committee,” as the Orange County Register noted. “Under the bill, snitches like Mexican Mafia members Raymond “Puppet” Cuevas and Jose “Bouncer” Paredes would no longer be able to live like kings behind bars, raking in as much as $3,000 a case as well as cartons of Marlboro cigarettes, fast food, Xbox machines and other perks.”

“The bill caps all monetary and nonmonetary payments to informants at $100 per case, including any investigatory work. Currently, the cap is $50 per case for testimony and no limit in compensation for investigation,” the paper observed. “Additionally, the bill requires prosecutors to keep databases that track informant work and locations, and to turn detailed informant histories over to defense attorneys no later than 30 days before the preliminary hearing.”

Michael Christopher Mejia, 26, had been arrested five times in the last year before he killed veteran officer Keith Boyer during the scene of an accident on February 20. Mejia was under the supervision of a probation officer, benefiting from the provisions under AB109, the bill enacting so-called “realignment” by shifting prisoners from state prisons to local jails, or releasing them entirely under supervision to deal with overcrowding.

Since its enactment, law enforcement agencies and politicians have warned it poses a threat to public safety, with Southern California police chiefs calling it “dangerous public policy” back in 2013.

In the aftermath of the tragedy, the Los Angeles County Board of Supervisors cited AB109, as well as Propositions 47 and 57, for creating “additional and considerable” safety threats to police departments.

“We need to wake up. Enough is enough. You’re passing these propositions, you’re creating these laws. … It’s not good for our community (and) it’s not good for our officers,” Whittier police chief Jeff Piper told the media in an emotionally charged press conference.

During a time of heightened scrutiny of law enforcement nationwide, in part due to the perceived anti-cop rhetoric from groups like Black Lives Matter, California is becoming more and more of a flashpoint in the debate over how to confront the issue of violent crime and police engagement.

“As soon as realignment became a reality here in California, we knew as police chiefs that it was going to be a big problem,” said Santa Ana Police Chief Carlos Rojas.

However, UC Irvine criminologist Charis Kubrin says the research indicates that AB109 isn’t responsible for an increase in violent criminal activity in the state, declaring that “there is no doubt in my mind that AB109 had zero impact.”

But as The Mercury News notes, few reviews of the law exist because the state did not apportion funds for studying AB109’s effects. Furthermore, four officers killed in Southern California in the last six months were by repeat offenders, including the murders of a Palm Springs officer and an L.A. County Deputy Sheriff, both which made national headlines.

While it appears more inquiry may be needed to understand the full effects of prison reform legislation, cities like Los Angeles are continuing to grapple with an increase in violent crime, with homicides rising for a third year in a row, reversing a decline that began in the 1990s.

Drew Gregory Lynch is a CalWatchdog contributer

@_drewgregory

The Trump administration has made clear that it will not look the other way when it comes to de facto state legalization of marijuana, as the Obama administration did. Instead, White House press secretary Sean Spicer last week said the states that have approved the use of recreational pot – California is one of eight – would face a reckoning because marijuana use remains a federal crime under the Controlled Substances Act.

State Democrats immediately denounced the possibility of a federal crackdown and took a defiant tone, starting with Lt. Gov. Gavin Newsom, a key sponsor of Proposition 64, the ballot measure approved with 56 percent support in November that sets up the framework for legal pot sales and use beginning Jan. 1, 2018. Newsom released a letter that called Spicer “grossly uninformed” for saying legal pot could make the opioid epidemic worse and warned that a federal intervention would help “drug cartels and criminals” by keeping the sale of marijuana a black-market, illegal practice.

Xavier Becerra, recently installed as state attorney general, also vowed in a statement that he would “protect the interests of California” from federal intrusion.

A Los Angeles Times report quoted attorneys as saying California could argue that it has a legal right to control drug rules within its borders.

Constitution gives federal government final say

But legal websites and U.S. history suggest that a federal government that is determined to enforce federal laws would be a very difficult obstacle for a state to overcome.

“The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the ‘supreme law of the land,’” the FindLaw website notes. “This means that judges in every state must follow the Constitution, laws and treatises of the federal government in matters which are directly or indirectly within the government’s control. Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict.”

A federal crackdown could come in several forms:

1. Drug Enforcement Administration agents could stage raids on pot farms and dispensaries, as they did memorably in 2012 at Oakland’s massive Oaksterdam medical pot outlet. U.S. marshals and IRS agents joined in the raid.
2. Federal authorities could warn property owners that their land and buildings would be seized unless they evict pot farmers or dispensaries.
3. The federal government can compel cooperation through a lawsuit. An Associated Press analysis noted that this is what happened in 2010, when a federal suit forced Arizona to scrap an immigration law that the Justice Department said trampled on federal authority.
4. The federal courts can also compel action, such as what happened last year in Kentucky, when a county clerk who objected to issuing licenses for same-sex marriage was overruled.
5. The Treasury, Justice and Homeland Security Departments can all use existing laws to hammer banks and credit unions that accept deposits that can be linked in any way to marijuana-generated funds or if they provide any services to dispensaries. “Financial institutions face significant risk for violating federal law if they offer banking services to marijuana-related businesses,” an American Bankers Association web page warns. “The federal statutory barriers include the Controlled Substance Act, USA Patriot Act, Bank Secrecy Act, Racketeer Influenced and Corrupt Organizations Act and other federal statutes.” The RICO law in particular gives law enforcement wide latitude to classify activities that may seem in a gray area as illegal, which is why it’s long been a target of advocates of legal reform.

These five ways the Trump administration could crack down on a state attempting to legalize recreational drug use are only the short list. In an era in which sweeping executive orders have become the norm, Attorney General Jeff Sessions – an ardent foe of legal pot – could ask President Trump to withhold federal funds for law enforcement or health programs from defiant states.

While Spicer was emphatic about a new federal approach to state marijuana laws, he offered no timetables for action. Sessions has so far focused on other issues in his first weeks at the Justice Department.

Proposition 64’s

State Sen. Holly Mitchell, D-Los Angeles, won headlines last week for her pointed questions about whether the state will be able to meet its requirement of issuing marijuana sales permits and establishing a system to implement the 15 percent state tax on pot sales by Jan. 1, 2018, as it is supposed to under Proposition 64.

The primary immediate problem is uncertainty about what the Trump administration will do, if anything, to push back on the eight states that have legalized marijuana. The Obama administration for the most part stayed out of the way of states that liberalized pot rules.

If President Trump – who made controversial warnings about worsening crime a hallmark of his campaign – wanted to crack down, he has potent options. Federal law still considers marijuana possession a crime and still bans banks and credit unions from taking deposits made from marijuana sales. In Colorado –  home to what is so far the biggest state experiment in pot legalization – some banks appear to be looking the other way or having a “don’t ask, don’t tell” policy about pot dispensary deposits. Others permit marijuana companies to use their accounts to pay state taxes or employees but not to have the full range of banking services.

If Trump’s Treasury Department ordered stricter enforcement targeting all drug money in the financial system, that could make it far more difficult for California to meet its Jan. 1 target under Proposition 64.

Various uncertainties about possible “government actions” led the Legislative Analyst’s Office to release a short report last week saying marijuana tax revenue shouldn’t be included in the 2017-18 state budget.

Some cities still oppose ‘normalizing pot’

The LAO was not just talking about the federal government. At the local government level, some cities and counties are implementing rules to block what they call the “normalization” of pot use.

There’s now a new front in their war on Proposition 64 that goes beyond using zoning regulations to make it difficult or impossible for pot shops to open: private cultivation.

Proposition 64 allows residents older than 21 to grow up to six marijuana plants at a time. It allows local government to pass rules on pot cultivation so long as they don’t create such obstacles that they create a “de facto ban,” according to Sacramento attorney Richard Miadich, who helped write the proposition. 

But several cities around California – including Elk Grove, Galt, Palo Alto, San Jose, Santa Ana and Poway – have already adopted temporary bans on indoor cultivation.

Other cities are putting up obstacles by requiring costly permits and setting conditions on growing. The list includes three cities in the Coachella Valley – Indian Wells, Rancho Mirage and Palm Desert.

Indian Wells has the strictest rules. The city requires home growers to pay a $141 annual fee and to pay for a government background check to prove they have not been convicted of a drug felony in the previous five years. It also requires permit holders to allow city inspectors access to their homes and mandates that pot can only be grown in locked rooms with adequate ventilation.

Lawsuits likely over local permit fees, conditions

UC Irvine Law School Dean Erwin Chemerinksy told the Desert Sun newspaper that he thinks Indian Wells’ law wouldn’t stand up to a lawsuit.

If that’s so, many local laws could be at risk. Fontana will charge $411 for an individual permit. Leaders in Fillmore, a town in Ventura County, discussed having individual permits cost as much as $737.

In Orange County, Aliso Viejo and San Juan Capistrano have adopted ordinances requiring permits for indoor cultivation. But they have not yet set how much the permits will cost.

These concerns about local crackdowns on marijuana and a potential federal crackdown have created uncertainty about what Proposition 64 will look live in five to 10 years, after lawsuits are settled and private cultivation becomes more common.

There are striking differences in the expectations of two state agencies. The Department of Consumer Affairs predicts 6,000 pot shops will eventually open while the Board of Equalization only expects 1,700.

New Immigration and Customs Enforcement raids have rolled out across Southern California, roiling state officials and triggering rumors of broader actions. But though the Trump administration has focused on expanding the scope and strength of enforcement, the current raids trace back to planning conducted at the tail end of President Obama’s term in office. 

“Immigration arrests across Southern California over the past week were planned before President Trump took office and could be compared to similar operations the occurred last summer, an Immigration and Customs Enforcement official said,” Fox News noted. “A decade ago, immigration officers searching for specific individuals would often arrest others found along the way, a practice that drew criticism from advocates. Under the Obama administration, agents also carried out arrests but focused more narrowly on specific individuals.”

Political pushback

But while California Democrats have felt more uncertainty and anxiety around immigration in the early days of the Trump administration, they have also felt a greater latitude to object to federal enforcement. “Democrats have complained about getting little or conflicting information about who was targeted in the raids that have panicked many in the immigrant community,” the Los Angeles Times reported. “Democrats in Congress say Immigration and Customs Enforcement officials told them Thursday the agency plans to employ a broader brush in making immigration arrests, armed with a new executive order from President Trump. Democrats and Republicans in House leadership met in a closed-door meeting with Acting ICE Director Thomas Homan to talk about last week’s immigration raids in Los Angeles and other cities, which netted nearly 700 people across the country last week.”

Fraught nerves have spread throughout areas of the state where support for so-called sanctuary cities, and opposition to the new administration, is high. “Rumors that U.S. Immigration and Customs Enforcement is rounding up undocumented residents throughout the Bay Area are just that — rumors, according to a spokesman for the federal agency,” according to the San Jose Mercury News. “One of those rumors resulted in an ‘urgent notification’ Tuesday to parents of students at a charter school in San Jose, said James Schwab, a spokesman for the federal agency. Similar rumors have circulated in El Cerrito, Oakland, Richmond and San Pablo. All of them have been false, Schwab said.”

Continuity and change

But confusion has persisted, and not only in California, over exactly how ICE has altered its approach to the current round of enforcement. “Under Obama, ICE agents mainly picked up what they called criminal aliens from jails around the country. But with this operation, you’re seeing these immigration agents fanning out into streets and neighborhoods,” John Burnett reported from Texas on NPR. “And that’s what left people so alarmed. I spoke with the Mexican consul here in Austin, Carlos Gonzalez, earlier today. The numbers he gave me was he says 49 Mexican nationals were picked up Thursday, Friday and today. He said that’s a significant increase over the usual apprehensions of undocumenteds here in Austin. And, of course, that doesn’t even include Central Americans or other nationalities that would’ve been picked up.”

The Obama administration’s official trigger for action, a so-called “threat to the community,” was not always applied by ICE this time around. Jorge-Mario Cabrera, communications director for the Coalition for Humane Immigrant Rights of Los Angeles, told LA Weekly that an unofficial “sense of respect for families and immigrants” was “not always respected” by the previous administration, but did color its approach to enforcement and deportation. ICE senior spokeswoman Virginia C. Kice, told the paper the current actions were consistent with past practices. “Kice points to a series of targeted enforcement actions taken under the Obama administration in 2011, 2012, 2013 and 2015, which netted 10 to nearly 20 times as many arrests as occurred last week,” the Weekly noted.