New California laws limit prosecution of children, increase police transparency: Some takeaways

Daniel Nichanian

Governor Brown had until Sunday to decide whether to sign a large pile of bills—and when it came to criminal justice reform he greenlighted most (though not all). Some takeaways:

California overhauls youth justice…: Brown signed two bills authored by state Senators Holly Mitchell and Ricardo Lara that will restrict most children under 12 from being prosecuted in juvenile court (SB 439) and will bar anyone under 16 from being prosecuted as an adult, keeping them in the more rehabilitative juvenile system (SB 1391).

…and sheds exceptionally tight police confidentiality rules: Brown signed two bills that require the public release of body camera footage within 45 days (AB 748) and of records pertaining to officer shootings and misconduct investigations (SB 1421). Such records were confidential because of a law signed in 1978 by none other than Jerry Brown. “California was the only state that had a complete lock on any public access” to disciplinary records, state Senator Nancy Skinner told me. Skinner, who authored SB 1421, credits its success to “heightened public interest in holding police departments accountable.”

Reforms rethink the definition of and responses to violencePoliticians who champion criminal justice reform often focus on low-level offenses, even though major cuts to incarceration require broader change. But the latest laws challenge that dynamic. The new law that narrows the state’s felony murder rule enables existing murder convictions to be vacated. (I wrote about this law here.) “We are starting to realize that the term ‘violent offenses’ is so overbroad,” Kate Chatfield, the policy director of Restore Justice, told me of the impetus behind it. In addition, the law barring adult prosecution of children under 16 makes no exception for offenses involving violence.

“The legislature is for the first time rethinking the way we react to violent behavior,” Anne Irwin, who advocated both reforms as director of Smart Justice California, told me. “That broad recognition that mass incarceration is not making us safer is now extending to even crimes of violence. … There is a way to respond to violence that does more to rehabilitate.”

The politics of reform have shifted: California reformers have enjoyed recent success—not just in the legislature but also in referenda. The new laws “are reflective of a new moment in California where the legislature and the governor are finally agreeing with the public … that we shouldn’t be incarcerating as many people as possible for as long as possible,” Irwin said. Most California DAs urged Brown to veto the felony murder bill and the bill barring adult prosecution. But Brown was not swayed. “District attorneys always like to say that we don’t make the laws, we just enforce them,” Chatfield said. “I think that their attitude on criminal justice reform and on the bills that have come out of California really belie that.”

What’s next for safe injection sites? Brown vetoed a bill that would have enabled San Francisco to open a safe injection site. “With all due respect, Governor Brown doesn’t have a full understanding of harm reduction,” Irwin told me. “I think he vetoed the bill because he thought safe injection sites would be government-sponsored drug use. I think that’s misguided. … The best thing we can do in some cases is try to prevent as much harm as possible.” But the politics of this issue could soon change. Mayor London Breed has vowed to press ahead, and Gavin Newsom (the frontrunner to replace Brown as governor in next month’s election) said on Monday that he remains “very, very open” to supervised injection sites.

published on Oct. 4, 2018