Friday, March 14, 2014
W. David Ball and Robert Weisberg (Santa Clara School of Law and Stanford Law School) have posted The New Normal? Prosecutorial Charging in California after Public Safety Realignment on SSRN. Here is the abstract:
California’s Public Safety Realignment Act (“Realignment” or “AB 109”) shifts the responsibility of supervising, tracking and imprisoning specified non-serious, non-violent, non-sexual (“triple-nons” or “N3 felonies” or “non-non-nons”) offenders previously bound for state prison to county jails and probation. The implementation of Realignment in California is the largest correctional experiment of its kind. The advent of Realignment has, of course, affected the decisionmaking of all the official actors in the criminal justice system. But the prosecutor’s role is unique in one clear sense: Prosecutors have, in formal legal terms, virtually unreviewable autonomy in the choice to charge or not charge (so long as any charge matches provable facts with statutory elements).
How does this power operate in the wake of AB 109? Our hypothesis was that many aspects of AB 109 were likely to affect prosecutors’ charging and sentence recommendation choices. The most salient aspects were the change in site and de facto length of incarceration, as well as the secondary effects of new county responsibilities for post-release supervision of many prison parolees. In particular, in exercising discretion, prosecutors might be influenced by their views on the differences in the severity of experience of incarceration in jail as opposed to prison, or by their concerns about jail crowding or the extra costs that county jails and other county agencies might have to absorb under AB 109.
We explored this hypothesis through three study components. First, we established a rough charging baseline through an empirical study. With obtained data from the Attorney General’s office, we examined arrest-to-charging ratios by year and by crime category before and after Realignment. We found very few and small differences, including insignificant differences across counties, and very few differences across crimes.
Second, we exhaustively analyzed the statutory elements of certain very common crimes that fall within AB 109, especially drug and property crimes, and we consulted in great depth with two distinguished California prosecutors, both involved in AB 109 training. Our aim was to find parts of the penal code that applied to similar fact patterns that, nevertheless, would result in significantly different sentencing outcomes. These parts of the code isolate various fault lines in AB 109, which both served as a foundation for the third part of our study and served as a significant roadmap to AB 109 itself.
Third, we surveyed District Attorneys themselves, using a factorial approach that isolates various statutory and extralegal factors. Our questions focused on whether the new sentencing structure might alter prosecutorial decisionmaking in terms of tilting borderline charges towards prison-eligible crimes or recommending especially long jail sentences. We again found no significant differences, although, for reasons we explain in the paper, these conclusions must be read as tentative.
In sum, most charging or recommendation preferences remain consistent with traditional severity factors and do not manifest major alterations in light of AB 109. However, there remains a great deal of uncertainty and variation in the responses we received. This phenomenon manifested itself particularly when prosecutors had to choose from the menu of straight, split, and probation sentences. Recommended terms for split sentences — those involving a combination of jail terms and community supervision — were all over the map, ranging from short terms of both jail and supervision, to short jail and a long tail, to long jail and a short tail. At the same time, jail sentences, obviously available before Realignment but now extended to formerly prison-eligible sentences, were also wildly divergent on the same facts, ranging from a year or less to 20 years or more. Our conjecture is that the new regime of Realignment, introduced alongside the existing sentencing regime, might invite wide variation in sentencing recommendations (with possible attendant unjustified disparities).