New Year, new laws. The last few years have seen a flurry of criminal justice reforms and 2021 is no different. The progressive state legislature continues to swing the pendulum back from years of draconian “law and order” policy and to seek ways to curb the astronomical costs to the state of decades of over-incarceration. I’ll go through and explain some of the highlights here.
AB 1950—reduced maximum length of most probation terms: With some exceptions, probation terms on misdemeanors and felonies are capped at one and two years, respectively. Violent felonies, crimes such as DUI that have probation terms expressly defined in the code, and financial crimes with loss of over $25,000 are excluded. It appears that this legislation will apply retroactively. In Orange County, at least, the District Attorney and Probation Department have agreed to identify eligible probationers for early termination of probation.
AB 3234—misdemeanor diversion: Expands diversion eligibility broadly allowing most misdemeanant defendants to participate in diversion and have their case dismissed and sealed upon successful completion.
Granting diversion is within the discretion of judges, but can be accomplished even over the prosecution. Again, certain offenses are excluded such as several domestic violence offenses and any sex crime that would require sex offender registration.
SB 384—Tiered sex offender registration: Prior to this bill, people ordered to register as sex offenders were required to do so for their entire lives. This bill establishes tiers, based on the offense, of 10 years, 20 year, and lifetime registration requirements. Juvenile tiers are either 5 or 10 years.
The bill is retroactive and current registrants can petition the court for termination of the registration requirement. Removal is not automatic. Rather, after registering for the period determined by the offense, the person must petition the court for removal. Removal requires that a person demonstrate that they have complied with their registration obligations and not been convicted of subsequent crimes. Estimates have suggested that as much as 90% of the current registry may be eligible for removal.
This bill is both courageous and smart. The registry’s purposes are undermined when people who raped children are treated no differently than people who exposed themselves in public. By focusing on individuals who we really need to be warned about, the registry will better actually accomplish its purpose of making us safer without needlessly ruining the lives of people who have demonstrated that they no longer pose a threat to society.
AB 2524—California Racial Justice Act: This may be the most important and complicated of all the new bills signed into law by Governor Newsom. I’ll try to summarize, but this new law will likely warrant a standalone blog of its own as we begin to see how its implementation actually plays out.
The law allows people convicted of a crime to pursue re-sentencing or a new trial if they can establish that they were treated differently on the basis of race, national origin, or ethnicity. The bill was explicitly introduced to reverse the 1987 U.S. Supreme Court precedent in McCleskey v. Kemp that essentially required someone to prove intentional discrimination when challenging racial bias that impacted their case. This standard presents an almost insurmountable bar.
The most novel piece of this legislation is that defendants can now demonstrate racial bias through the use of statistical analysis—a showing that persons of a particular race are charged or convicted or sentenced differently in a statistically significant way. Additionally, people can challenge convictions in which a lawyer, cop, juror, expert witness, or judge exhibited a racial bias towards the defendant during the case.
This bill has the potential to have an enormous impact as, for instance, African American men are incarcerated in California at a rate more than 8.8 times that of white men, one of the highest disparities in the country. The death penalty is also sought and given more against minorities than whites.
Proposition 17—Restoration of voting rights to felons: California voters passed this proposition in November with over 58% of the vote that will allow approximately 50,000 convicted felons to regain their right to vote.
AB 1775—The “Karen” law: Makes false 911 calls based on someone’s race, gender, or religion a hate crime.
AB 1996—Chokehold ban: Law enforcement may no longer use chokeholds and carotid holds, use of force responsible for numerous deaths across the country every year.
AB 1901, SB 823, AB2425—Juvenile justice reforms: AB 1901 transfers a charge of insubordinate, disorderly students from probation programs to community-based programs and seeks to remove problematic students from the court system. SB 823 faces out the remaining juvenile prisons. AB 2425 further protects juvenile records from public inspection.
AB 1185—Sheriff Oversight: Allows counties to establish a sheriff oversight board and inspector general with subpoena power to oversee the Sheriff.
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