Former Rep. Xavier Becerra (pictured), D-Los Angeles, was appointed in 2016 by Gov. Jerry Brown to replace state Attorney General Kamala Harris after she was elected to the U.S. Senate. He won a full term in the 2018 elections.

While Becerra joined Brown in backing measures that made the criminal justice system less punitive, he has come in the cross hairs of activists for his interpretation of Senate Bill 1421, which took effect Jan. 1.

The measure, by state Sen. Nancy Skinner, D-Berkeley, wipes away decades of protections of police discipline records that were adopted by past lawmakers and upheld by courts. It mandates the release of such records if they involve life-threatening or lethal use of force, sexual misconduct and lying in the execution of official duties.

Last year, however, police unions began arguing that Skinner’s law only applies to disciplinary records generated after it took effect Jan. 1 – not to past reports of discipline. However, on Jan. 2, the California Supreme Court denied an emergency request for a delay in implementing the law pending a full review of how the law should be interpreted. This was seen by legal observers as a plain sign that state justices agreed with Skinner, who said the retroactive intent of her law was clear.

Becerra won’t release discipline records of his agents

Nevertheless, police unions representing specific agencies have continued to file lawsuits. In two cases, involving Los Angeles and Richmond police officers, local judges have agreed to a temporary hold on discipline records predating Jan. 1 of this year.

These rulings were cited earlier this month by Supervising Deputy Attorney General Mark Beckington in rejecting a public records request for discipline records of law enforcement agents who work for Becerra.

In an interview with KQED, the Northern California PBS affiliate, the executive director of the California First Amendment Coalition blasted Becerra for his department’s decision, saying it sent the wrong message to local agencies and reflected a failure of leadership.

“This is the highest law enforcement officer in the state. He has decided not to disclose records that I think the new law makes very clear should be disclosed,” David Snyder said.

Skinner told KQED that the attorney general’s decision was “puzzling” given that several state law-enforcement agencies complied with the law once it took effect.

But Becerra has rejected criticism, saying that on privacy issues – especially those involving law enforcement officers – he would err on the side of caution.

The controversy has echoes of criticism facing Sen. Harris, the former San Francisco district attorney, as she has launched her bid for the 2020 Democratic presidential nomination.

In her new autobiography, “The Truths We Hold,” and in speeches to progressive groups, Harris has depicted herself as an aggressive advocate of the view that the criminal-justice system is overly punitive and particularly harsh on some minority groups.

Harris critics, defenders fight over her record

But University of San Francisco law professor Lara Bazelon says that doesn’t square with her record as San Francisco DA and state attorney general. In a commentary for the New York Times, Bazelon wrote that Harris was willing to use evidence she knew to be tainted to obtain convictions.

Other reformers have focused on her refusal to support Proposition 47, the 2014 ballot measure that limited prison time for nonviolent crimes, and her opposition to legislation that would have mandated her office conduct independent investigations of fatal police shootings.

Harris’ defenders say this amounts to cherry-picking that ignores key parts of her record. They note she supported a pioneering program in San Francisco that provided resources and counseling to keep first-time drug offenders from ending up in a life of crime. They also note that as attorney general, her agency was the first in the state government to require that its law-enforcement agents wear body cameras.

It’s unclear when the dispute over police discipline records will be resolved. But since lower state courts have reached different decisions on how to interpret Senate Bill 1421, that normally means the issue won’t be resolved without a California Supreme Court ruling.

Leading the push for the rare recall of a state judge was Stanford law professor Michele Dauber, whose daughter was a childhood friend of swimmer Brock Turner’s victim, a Stanford student who has not been named by news organizations which withhold the identities of sexual assault victims. Dauber and her supporters have depicted the light sentence as examples of both societal indifference to sexual violence and of white privilege; Turner (pictured) is from a wealthy Indiana family. In a series of interviews with sympathetic journalists, Dauber depicted a vote for the recall as a chance for Santa Clara County voters to show they stood firmly with the Me Too movement dedicated to fighting sexual harassment and even worse behavior by men.

But Dauber’s campaign went firmly against a central tenet of the criminal justice reform movement. It holds that harsh sentencing laws approved in the high-crime 1980s and early 1990s have destroyed the salvageable lives of hundreds of thousands of young people – especially African-American and Latino men. This explains the campus dynamic at Stanford detailed in a lengthy Huffington Post story by Julie Ioffe published June 1. While Turner’s victim is universally receives deep sympathy, the report showed Dauber has become an unpopular figure with many of her fellow law school faculty.

Professors, public defenders rip judge’s main critic

“Twenty-nine Stanford law professors have signed a letter against the recall,” the Post reported. “Robert Weisberg, who teaches criminal law and describes himself as a progressive feminist, grew visibly angry when he spoke about Dauber. The recall, he argued, was ‘a gratuitous and vindictive campaign’ and ‘an exploitation of the Me Too movement.’”

Further fueling the local backlash against Dauber: Persky’s outstanding reputation among public defenders who have appeared before him.

“My clients are all indigent and most of them are nonwhite,” Barbara Muller told the Post. “I have never seen him treat my clients differently than those clients who can afford private attorneys.”

A second public defender, Gary Goodman, made an even more sweeping case in Persky’s defense. He said California sentencing guidelines called for leniency for young defendants like Turner –  “a 19-year-old with no criminal record.” And in a claim substantiated by The Associated Press, Goodman said Persky’s sentence for Turner came at the behest of another wing of the Santa Clara County legal system: the probation department.

While Persky’s recall was celebrated by feminists nationally, recall critics are now going beyond the specifics of the Persky case to emphasize the danger of incentivizing judges to throw the book at defendants.

“What will happen when the rest of California’s elected judges, worried about mob scrutiny, decide that lenient sentencing is a one-way path to joblessness and begin to sentence even more harshly? The people most affected by that calculation won’t be the ones who look like Turner. They’ll be those who most often fall victim to harsh sentencing overall – minorities and the poor,” wrote Christina Emba, a Washington Post opinion columnist and editor.

But in an interview with the San Jose Mercury-News that was published Sunday, Dauber depicted criticism she faced not as principled but as part of a sexist backlash to women fighting for fair treatment. “I welcome their hate,” she told the newspaper. “I read it as a sign we’re being effective.”

The Mercury-News asked Dauber about the fears of Emba and others that the recall would end up haunting young minority men who come before judges who fear losing their jobs. She dismissed that idea as reflecting an “incredibly dim view of judicial integrity.”

Seven months after her office released sweeping recommendations for reform of California’s bail system, state Supreme Court Justice Tani Cantil-Sakauye may have a chance to force changes without going through the Legislature and Gov. Jerry Brown.

Last week, the state Supreme Court agreed to take up a January appellate court ruling that took dead aim at a bail system that some say turns county jails into “debtor prisons.” More than half of jail inmates are there not because of convictions but because they can’t raise bail, which usually requires providing a bail bonds office with cash or property worth 10 percent of the total bail sum. California has the highest cash bail rates of any state, according to Human Rights Watch.

“A defendant may not be imprisoned solely due to poverty,” Presiding Justice J. Anthony Kline said in a 3-0 decision of the 1st District Court of Appeal that ordered a new bail hearing for Kenneth Humphrey, a retired maintenance worker living in San Francisco who was accused of threatening a neighbor, stealing a bottle of cologne and $5, and demanding more money. Humphrey said he was seeking payment of a debt. But a judge followed a standard bail schedule that took note of Humphrey’s previous felony convictions and set his bail at $600,000, which was later reduced to $350,000.

San Francisco District Attorney George Gascón welcomed the Supreme Court’s decision to take up the case, which he had requested after state Attorney General Xavier Becerra chose not to appeal the appellate ruling. “We’re pleased,” he told the San Francisco Chronicle. “I’ve made it very clear that I’m not a proponent of money bail. But getting rid of money bail doesn’t entail that we will never have pretrial detention. There are still some people that are going to be either a flight risk or dangerous, and what we have now is a state of the law that is unclear, and the standard in terms of dangerousness may be way too high.”

Cantil-Sakauye urged bail changes in 2016 speech

While the appellate ruling was stayed pending the state high court’s ruling, criminal justice reformers were hopeful that Cantil-Sakauye’s history hints at the court’s eventual decision.

The chief justice conveyed her support for bail reform in her 2016 State of the Judiciary speech. A task force she convened issued a report in October that said the state’s system “unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior” and was “unsafe and unfair.” It called for pretrial assessments that would help judges gauge the risk posed by each defendant and for “pretrial programs [that] would also give judges more tools to supervise defendants, such as drug testing, home confinement, and text reminders for court dates.”

This approach was used with Humphrey, 64, after the appellate court ruling overturned his $350,000 bail. He was released from jail after agreeing to supervised around-the-clock detention at a substance abuse facility and to wearing an ankle monitor.

Despite lobbying from Cantil-Sakauye, Gov. Jerry Brown and progressive and civil rights groups, the Legislature has so far been mostly cool to two years of efforts led by Sen. Bob Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland, to scrap the state’s money bail system. Their legislative proposals mirror the recommendations of the chief justice’s task force. One version passed the state Senate last year on a party-line vote before stalling; another was rejected by the Assembly.

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.

Not only has it been a disappointing year for the lawmakers and civic leaders behind the recent push for sweeping reforms of California’s criminal justice system, their achievements are under harsh fire in Los Angeles County.

Last December, Assemblyman Rob Bonta, D-Oakland, and state Sen. Bob Hertzberg, D-Los Angeles, proposed to largely scrap cash bail on the grounds that it wasn’t essential to getting people to show up for their trials, was destructive of individuals’ lives and would sharply reduce costs and crowding at county jails. But while one of the two related bills the lawmakers introduced passed the Senate on mostly party lines, the other stalled on the Assembly floor, only getting 35 votes in support. The bail bonds industry has strong relationships with both parties, especially in urban areas where bail bond agents are often significant donors.

On Friday, Gov. Jerry Brown and Chief Justice Tani Cantil-Sakauye announced their support for the measure – but for review and passage in 2018, not the remaining few days of the current legislative session.

The support of Brown and Cantil-Sakauye was depicted as good news by Bonta and Hertzberg. But the governor’s and chief justice’s delay in getting on the bandwagon and the Assembly’s coolness to the concept showed that bail reform never enjoyed as much support as two other recent criminal justice reform measures. Adopted by state voters in 2014, Proposition 47 reclassifies several nonviolent crimes as misdemeanors instead of felonies for those without criminal records involving crimes of violence or related to guns. Approved in 2016, Proposition 57 made it easier for those guilty of “nonviolent” crimes to win parole.

Reforms face intense blowback in L.A. County

Now, however, enthusiasm for these reforms has faded in the largest county in the state and nation.

In Los Angeles County, some law enforcement and women’s groups are upset with Proposition 57 over how many of the crimes it considers “nonviolent” involve considerable violence, including types of sexual assaults.

But many local leaders, politicians, law enforcement members and citizens are furious over the effects of Proposition 47. They say it amounts to a “get out of jail free” card for drug addicts who no longer face incarceration for their crimes but who face no punishment when they don’t honor requirements they meet with drug counselors. Anecdotes about addicts being arrested over and over and over without consequence have been common in police circles for more than two years. Similar stories abounded in a harsh October 2015 Washington Post analysis of the early effects of Proposition 47. It concluded the well-meaning state law kept addicts out of jail, but not out of trouble.

These concerns led Los Angeles County supervisors to vote 3-0 on Aug. 15 to set up a commission to examine “the challenges and opportunities” created by Propositions 47 and 57 and AB109, a 2011 state law that “realigned” criminal justice by having those convicted of many “low-level” crimes serve their sentences in county jails instead of state prisons.

The reforms have been the focus of anger over two gun murders on Feb. 20 in Los Angeles County, allegedly committed by convicted felon Michael C. Mejia – one of a family member, the other of Whittier police Officer Keith Boyer. Mejia had been released from state prison 10 months before the killings and the Los Angeles gang member reportedly committed several parole violations without being sent back to state prison before Feb. 20.

After the killings, Whittier Police Chief Jeff Piper and the Los Angeles Police Protective League blamed AB109 and Proposition 47 for making it easier for Mejia to avoid being returned to state prison for breaking parole.

Reformers said Proposition 47 had nothing to do with Mejia’s treatment. They said that while AB109 changed how Mejia was treated after being released from prison, it did so by assigning responsibility for his oversight to the Los Angeles County Probation Department – not the state corrections department.

But the argument that the county was blaming state reforms for its own failings never took hold. The day after officer Boyer’s death, Los Angeles County Sheriff Jim McDonnell said state reforms were “putting people back on the street that aren’t ready to be back on the street.” He said his jail system had so many dangerous inmates that it amounted to a “default state prison” – undermining claims that reforms would have positive or benign effects on local communities.

The leading proponent of the proposal is California Supreme Court Chief Justice Tani Cantil-Sakauye. She is working on a plan to decriminalize minor traffic infractions by having them handled in civil court instead of criminal court.

Cantil-Sakauye told the Los Angeles Times that it is unacceptable that people who are too poor to pay tickets or who miss court hearings related to the tickets end up in jail or are unable to get to work, wreaking havoc in their lives.

But the change would also help the state court system by limiting how much time criminal courts spend on traffic cases. Reformers say that nearly three-quarters of criminal cases involve traffic tickets, more than 4 million of which are given out annually.

Poor seen as victimized by policies

The shift of such infractions as running a stop sign, illegal lane changes or speeding modestly (up to 15 mph over the limit) to civil courts would involve lowering the burden of proof from beyond a reasonable doubt to reasonable certainty – also a change that would save resources.

Momentum for the changes has built in recent weeks after the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area released a report showing unpaid traffic tickets took a heavy toll on the lives of poor Californians.

It noted that from 2006 to 2015, one-sixth of California adults – 4 million people – had their licenses suspended because of unpaid traffic tickets. It documented that nearly four out of five workers commuted in vehicles and argued that the punitive effects of Golden State traffic policies went far beyond reasonable punishments. That’s because while the fines for certain driving offenses are relatively low – $100 for running a red light – state lawmakers for years have added fees to the tickets to help fund state programs. The total ticket cost for running a red light is $490 in California, vastly higher than other states. The result of this approach is state drivers being assessed nearly $10 billion a year for their infractions.

The rationale that criminal penalties are disproportionately and unnecessarily harsh has driven the three other legal reform pushes seen in the state since 2014.

That year, California voters approved Proposition 47, championed by Gov. Jerry Brown. It made state sentencing policies less punitive by classifying many crimes considered “non-serious” and “non-violent” as misdemeanors instead of felonies, unless the defendant had criminal histories of major crimes.

In 2016, California voters approved Proposition 57, once again at Brown’s behest. It made it easier for felons to win parole if they have constructive records in prisons and also gave judges the decision-making authority on whether juvenile suspects should be prosecuted as adults, not prosecutors.

Dramatic changes in bail rules win Senate OK

In the current session of the state Legislature, lawmakers are considering perhaps the most far-reaching changes yet. Assemblyman Rob Bonta, D-Oakland, and state Sen. Bob Hertzberg, D-Van Nuys, have each introduced bills that would end the state’s practice of requiring formally accused criminal suspects to pay heavy cash bail. They say there is strong evidence that governments with much less onerous bail policies than California – which has the harshest in the nation – have just as good a record of getting the accused to show up for trials.

Bonta’s and Hertzberg’s bills would yield sharp savings for local governments. That’s because a majority of inmates in county jails are there because they can’t pay bail or afford bail bondsmen who charge a 10 percent of bail fee to guarantee they will show up in court.

Hertzberg’s bill passed the Senate 26-11. But the Assembly is more skeptical. It recently rejected Bonta’s identical bill on a 35-37 vote.

Proposition 57 — the victorious November ballot measure sponsored by Gov. Jerry Brown — continues to spark controversy over its loose definition of “nonviolent” crimes.

The proposition won easy approval despite harsh criticism from district attorneys around the state. The measure writes into the state Constitution guarantees that those convicted of “nonviolent crimes” can be eligible for early parole if they behave well and take part in rehabilitation programs.

But the measure was crafted rapidly in what critics likened to the judicial version of “gut and amend,” transforming what was originally meant to be a ballot initiative reforming juvenile justice into an expansive measure with far-reaching reform goals. The revision was approved by the California Supreme Court despite a stinging dissent from Justice Ming W. Chin who said failure to subject the measure to normal thorough reviews set a poor precedent and made it more likely to be poorly drafted.

Chin’s point was underscored when it came to the public’s attention through the Brock Turner case in Stanford that under Proposition 57, the former college athlete’s sexually molesting an unconscious female student was considered a “nonviolent” crime — among many sex crimes considered “nonviolent” because of Prop. 57’s reliance on crime category labeling dating back to 1976.

Brown: Trust parole officials to protect public

The governor’s counter was that the state Department of Corrections and Rehabilitation would never prematurely parole someone guilty of a violent sex crime. But many state lawmakers aren’t persuaded, especially given the corrections agency’s history of scandals and problems.

Sen. Patricia Bates, R-Laguna Niguel, wants protections against possible early release of sex criminals and other violent felons written into law. She told the Los Angeles Times she is pushing a bill with that goal in hopes of sparking a public debate on what crimes should be added to the list of those technically considered “violent” by the state, starting with violence against children and police officers.

“If you put yourself in the position of a victim in any one of those crimes, you will say, ‘That was violent because that affected me physically and emotionally,’” Bates told the Times.

Bates isn’t the only lawmaker seeking changes.

Assemblyman Kevin Kiley, R-Roseville, wants cruelty to animals, crimes targeting older people and the kidnapping of children with the intent of using them as prostitutes added to the list.

Assembly members Melissa Melendez, R-Lake Elsinore, and Lorena Gonzalez Fletcher, D-San Diego, want all types of rape involving people incapable of giving consent branded as violent crimes.

There is also likely to be interest in adding assault on a domestic partner to the list.

State budget says no early parole for sex offenders

Brown has dismissed criticism of Prop. 57 in his public comments. But the 2017-18 budget Brown released in January contains a de facto response to critics. It explicitly noted that sex offenders would not be considered for early parole.

That’s still not good enough for many district attorneys, who say parole decisions can be challenged in court because of Prop. 57’s language.

Unless Prop. 57 is revised before the 2018 gubernatorial campaign revs up, it is likely to be an issue in that race.

But in recent years, a variety of criminal-justice reforms have been pushing the pendulum back in the other direction, albeit in a relatively quiet way. In 2014, California voters approved Proposition 47, which reduced some crimes from felonies to misdemeanors. Furthermore, Gov. Jerry Brown succeeded in implementing his “realignment” plan that moved many state prisoners to county jails.

Crime has gone up in major California cities since then and it’s not clear how much those measures contributed to the problem. But it doesn’t appear the recent uptick has slowed the push for reform.

In the Nov. 8 general election, voters rejected an effort to repeal the death penalty and, by a close margin, appear to have approved a measure designed to speed up executions. Nevertheless, voters also approved Proposition 57 by a wide margin. As the Legislative Analyst’s Office explains, the measure will “increase the number of inmates eligible for parole consideration” and make “changes to state law to require that youths have a hearing in juvenile court before they can be transferred to adult court.” The marijuana-legalization measure voters also approved would enable judges to expunge some people’s marijuana convictions.

The ballot box isn’t the only place where reform is moving forward. When the Legislature reconvenes in December, some legislators will almost certainly introduce bills that would reform the state’s system of “money bail.” It’s part of a nationwide reform movement headed by groups such as the American Civil Liberties Union.

Many are unfamiliar with the system by which criminal defendants post a bond that allows them to avoid jail time as their case winds its way through the system. A judge will set a bail amount that reflects the severity of the alleged crime and the defendant’s perceived flight risk. The defendant can post the full amount, which would be forfeited if he or she doesn’t show up at the appointed court date. Those who lack the resources also can go to a bail bonds company and pay a nonrefundable percentage (commonly 10 percent) of the bail. The bail bondsman posts the full amount and assumes liability to assure the defendant shows up for trial.

The bail bonds industry argues the system works well as it is designed. “When it comes to guaranteeing appearance at court, surety bail outperforms every form of public sector pretrial release and own recognizance release as well,” according to the American Bail Coalition. The group, supported by bail-bonds companies, argues the current system also offers a cost-effective approach that costs the courts nothing for to supervise 2 million released defendants each year. Bail defenders also point to the taxes paid by the bail industry – and cite studies showing cost savings to counties.

But critics of the system, including the chief justice of the California Supreme Court, have raised some concerns. “Over time the discussion about bail (has become): Does it really serve its purpose of keeping people safe? Because if you’re wealthy and you commit a heinous crime, you can make bail,” said Chief Justice Tani Cantil-Sakauye, in a March 2016 editorial board meeting with the Sacramento Bee. The problem, as the Bee and others have raised, is that poor people often don’t have the financial wherewithal to post bail. That forces them to stay in jail while wealthier people get to go home on their own recognizance and await trial. The chief justice has created a task force to review the issue.

Critics say the bail situation also encourages poor people to accept plea bargains, given that months in jail — and our court system moves very slowly — could cause their lives to collapse. If they are in jail rather than working, they lose their apartments and their possessions. Their kids are often taken by Child Protective Services. It’s a problem not just for the poor people who are affected, but also for the state’s perpetually overcrowded jail system. More than 60 percent of people in California jails have not yet been sentenced for any crime.

As the nonpartisan Public Policy Institute of California reports: “From 2000 to 2009 (the latest comprehensive data available for felony cases), California’s large urban counties relied on pretrial detention to a much greater extent than did large urban counties elsewhere in the United States. … Part of the difference in detention rates may be attributed to California’s higher bail amounts. The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000). Research has demonstrated that pretrial release rates generally decline as bail amounts increase.”

In July, some Democratic state legislators held discussions in Oakland on the matter. San Francisco District Attorney George Gascón said that “at least 29 jurisdictions have developed ‘risk-assessment’ models, which allow court and pretrial staff to use data and other evidence to determine whether a person should be released,” according to a news report. That’s a likely model for coming proposals: shifting toward a system based more on judicial risk assessments than on the ability to post a bond. Assemblyman Rob Bonta, D-Oakland, announced his intent to introduce legislation when the Legislature is back in session.

The U.S. Justice Department also has weighed in on behalf of bail reform in a Georgia case. The department argues that “bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release” violate the 14th Amendment of the U.S. Constitution. However, a U.S. district judge rejected a similar argument in a Sacramento County case.

“The state’s interest in ensuring criminal defendants appear for trial dates is a legitimate one, and detaining individuals before their arraignment is rationally related to that legitimate interest,” U.S. District Judge Troy Nunley wrote last month in the case. As the San Francisco Chronicle reported, “Nunley refused, at least for now, to dismiss a claim that the bail system is unfairly punitive.” Nunley is an appointee of President Barack Obama.

Other similar cases are moving forward across the country, including in San Francisco. There, Public Defender Jeff Adachi commissioned a study finding that black inmates are more likely to be kept in jail awaiting trial than their white inmates facing similar charges. Clearly, this issue will be heating up in the coming years, with a new Republican administration throwing more uncertainty into the situation, given the role the Obama Justice Department has played in the matter.

Critics also note the current system isn’t cost free, and that some states have moved to a risk-assessment system. “Risk assessment detention not only stems some of the unjustified inequalities on the impoverished but it also has proven to save the state money and actually prevent further crime by trying to keep the accused employed and out of trouble,” argues my R Street Institute colleague, Arthur Rizer, director of criminal justice policy. The current system, he adds, ends up “bloating our already bloated jails.”

Not all reformers look to eliminate money bail. Various compromises could emerge, including measures that eliminate bail for certain cases, or efforts to create easier ways for poor defendants to afford bonds. This is an emerging reform movement, so we’ve yet to see the kind of compromises that might emerge in the California Legislature. 

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

Californians voted in ways that would be expected for such a strongly Democratic-leaning electorate, except on the issue of the death penalty. That isn’t too surprising, either, given that Californians — despite their left-of-center tilt — have long been supportive of tough-on-crime measures and have consistently supported the death penalty.

Voters rejected, by 54 percent to 46 percent, Proposition 62, which would have repealed the death penalty and replaced it with life in prison without parole for murderers. They approved, with nearly 51 percent of the vote, the alternative Proposition 66. That measure streamlines the appeals process so the state can more quickly execute death row inmates.

Despite such “toughness,” voters overwhelmingly approved Gov. Jerry Brown’s sentencing-reform measure (Proposition 57) that would allow early release for some felons. There have been some increases in crime rates following the passage in 2014 of Proposition 47 (reducing some drug felonies to misdemeanors), but California voters remain committed to reducing some types of prison sentences.

On Election Day, voters also were strongly supportive of tax and spending measures. They approved, 54 percent to 46 percent, Proposition 51, which authorizes $9 billion in general-obligation bonds to modernize K-12 public schools. State bond measures are not direct tax increases, but they do increase the debt secured by the state’s general fund. That means legislators will have to allocate money to pay the service on the debt. They create pressure for tax hikes, or for spending cuts in other areas.

Voters also approved Proposition 55 by a hefty margin (62 percent to 38 percent), which will extend by 12 years the “temporary” personal-income tax increases included in the tax-raising Proposition 30 from 2012. The increases are applied on earnings of more than $250,000 for single filers and more than $500,000 for joint filers. Voters also agreed to boost the cigarette tax by $2 a pack — and other tobacco and nicotine products by equivalent amounts — by approving Proposition 56.

In a fairly close tally (51 percent to 49 percent), voters rejected Proposition 53, which was opposed by the business community and labor unions and would have subjected major infrastructure projects ($2 billion or more) to a statewide vote if they used revenue bonds. Such bonds are funded by revenues from the project (i.e., tolls) rather than general tax revenues. A variety of local tax increases also passed. California voters have moved a long way from the days of the 1970s-era tax revolt.

On social issues, Californians voted Tuesday in a reliably liberal way, as well. They supported, 63 percent to 37 percent, Lt. Gov. Gavin Newsom’s measure (Proposition 63) requiring background checks to purchase ammunition. They rejected an effort, by 8 percentage points, to require actors in adult films to wear condoms. They upheld a controversial new law (Proposition 67) banning grocery stores from handing out those single-use plastic bags and turned back an effort by the plastic-bag industry (Proposition 65) to redirect any bag fees from grocery stores to a state environmental fund. The latter was designed as payback to grocers and grocery unions for their role in the legislative deal that led to the plastic bag ban.

In another victory for liberal activists, voters approved — by an overwhelming 72 percent to 28 percent margin — Proposition 58, which overturns the state’s ban on bilingual education in public schools. That’s an educational program in which immigrant kids are taught largely in their native language. It was largely banned in 1998 by Proposition 227, whose supporters were concerned that native Spanish speakers were not learning English quickly enough. Prop. 58 did not get much attention this year, and its ballot designation suggested that a vote for 58 was a vote for preserving English proficiency.

Voters did, however, OK a significant political-reform measure by a wide margin (64 percent to 36 percent). Proposition 54 requires that the final version of any bill in the state Legislature be available in print for 72 hours, thus eliminating those controversial gut-and-amend bills in which new language is inserted at the last minute without public or media scrutiny. The measure also gives the public expanded rights to record the Legislature.

California voters also joined voters in Massachusetts, Nevada and (probably, based on close results) Maine in legalizing the recreational use of marijuana. Several other states approved medical marijuana – something that’s been legal in California since Proposition 215 passed in 1996. Given California’s immense size, this vote (Proposition 64) is viewed as a massive boost to an already-emerging marijuana industry – and to similar votes in other states in coming elections.

Voters approved Proposition 52, which extends a Medi-Cal hospital fee program that allows the state to collect federal reimbursements. It was backed by most of the state’s political establishment. Also passed was Proposition 59, which was an advisory vote asking whether state officials should support a constitutional amendment overturning the U.S. Supreme Court’s Citizens United decision, which invalidated certain limits on campaign spending. This was a largely meaningless initiative, but it garnered 52 percent of the vote.

Finally, voters rejected, 54 percent to 46 percent, a measure (Proposition 61) that would have capped the prices state agencies pay for prescription drugs. Opponents ran an aggressive campaign that no doubt contributed to its failure.

None of this was particular surprising, which is a surprise in and of itself. As the rest of the country defied the predictions, California went along with flow.

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

Proposition 57, which amends the California Constitution to make it easier for some felons to win release from state prison, coasted to victory Tuesday, winning more than 60 percent of the vote in initial statewide tallies and giving Gov. Jerry Brown a triumph on an issue — criminal justice reform — that he sees as crucial to his legacy.

The Brown-orchestrated, well-funded Yes on 57 campaign crushed lightly funded opponents, led by the California District Attorneys’ Association. A ballot measure description that used technical, arcane definitions to say the proposition only applied to “nonviolent” felons made victory close to a sure thing. District attorneys’ argument that the definition included many crimes involving violence, including sexual violence — while factual — got little traction.

But for Proposition 57 to be the policy triumph that Brown envisions, it will require improved performance from a state agency that’s faced frequent criticism from oversight agencies, judges and activists for decades: the California Department of Corrections and Rehabilitation.

Under the ballot measure, the corrections department will be directed to give sentence credits to inmates for progress toward rehabilitation as judged by behavior, educational achievements and other factors. The credits are awarded after a formal, documented evaluation process.

With the high-profile problems the corrections department has faced because of overcrowding and prisoner health care so poor that it led to the intervention of a federal judge, officials can deflect blame. A punitive “three strikes and you’re out” justice system overfilled prisons, and governors and legislators balked at building new facilities and adequately funding prison medical needs.

Corrections department rapped for rehab, parole woes

But a review of the Office of the California State Auditor’s records show far-ranging critiques of the corrections department on many other issues as well. Since 2006, the state auditor has issued more than 50 official evaluations of state government performance in which the corrections agency is cited. Most are critical, including two audits that involve tasks exactly like or very similar to those that Proposition 57 expects the agency to handle competently.

A 2011 report looked at Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS, a software program that officials said would help them identify inmates most likely to be successfully rehabilitated and reintegrated into public life.

The report said COMPAS was not used to evaluate all eligible inmates, despite initial promises; was not implemented consistently at the 12 “reception centers” where decisions are made about which prisons should receive new convicts; and faced resistance from corrections officials who didn’t think it was worth their time. The audit said there was a lack of transparency with how COMPAS was implemented and a lack of accountability as to whether it really worked in increasing rehabilitation of prisoners.

A 2008 report said the corrections department regularly ignored state law when processing prisoners for parole. When an inmate is paroled, a discharge review report is required in which parole agents argue for or against release; their recommendations can be overturned by supervisors. Auditors found such reports were not on record for “4,981, or 9 percent, of the 56,329 parolees discharged between January 1, 2007, and March 31, 2008.” They cited concerns that the violent criminal histories of some of these parolees was not considered before their release.

The audit also found examples of the agency breaking its own guidelines in cases in which supervisors overruled parole agents’ recommendations and ordered release of inmates “without documenting the reasons for their decisions.” It also found evidence that supervisors had unilaterally revised discharge reports prepared by parole agents.

The corrections department mostly rejected the 2011 criticisms on its rehabilitation evaluation program. It accepted and agreed with the 2008 report on the need for 100 percent compliance on discharge reports and on the need to “prohibit unit supervisors and district administrators from altering discharge review reports prepared by others.”

The 50-plus audits citing the corrections agency since 2006 can be found on the state auditor’s website: https://www.bsa.ca.gov/reports/agency/22