2018 California District Attorney Questionnaire
Local and state prosecutors hold extraordinary power in the criminal justice system. How they exercise discretion at each stage of criminal proceedings—from initial charging decisions to the sentences they seek to impose—determines whether the local justice system is fair and just. They also wield significant influence as policymakers and civic leaders, and can work with legislators, judges, public defenders, law enforcement, and other community stakeholders to advance justice through policy reforms.
Prosecutors can and should use this power to end the scourge of mass incarceration in America. California has one of the largest prison populations in the country, most of whom are held in state or local prisons and jails. California’s over-reliance on incarceration and harsh punishment is both costly and ineffective; it exacts enormous financial, emotional, and social costs on communities across the country while exacerbating recidivism and leading to more crime.
This questionnaire evaluates whether local prosecutors are committed to addressing the key drivers of mass incarceration. The questions fall broadly into five different principles:
End Wealth-Based Disparities.
End the War on Drugs.
Eliminate Excessive Punishments.
Increase Transparency and Accountability.
Promote Policies that Aid Undocumented Communities.
Principle #1: End Wealth-Based Disparities
1. End the Use of Money Bail
California’s continued use of unjust money bail policies contributes to the overall incarceration of poor people and disproportionately harms people of color by keeping them incarcerated simply because they cannot afford to pay bail.
Will you support The California Money Bail Reform Act (SB 10), which would reform California’s money bail system by ensuring that people are not kept in jail simply because they cannot afford bail to buy their freedom?
Do you support the appellate court decision in In re Humphrey, which requires judges to consider nonmonetary conditions of release and a defendant’s ability to pay before requiring and setting money bail?
Will you issue public statements in support of statewide legislation, local ordinances, and/or litigation aimed at ending unjust money bail policies?
Will you advocate for individualized, adversarial bail hearings, at which the defendant is represented by counsel?
Will you presume, and affirmatively recommend, release on personal recognizance for all defendants unless there is a clearly articulated substantial risk of harm to the community or high likelihood of flight?
2. Make Diversion Programs Accessible to All
Pretrial diversion creates opportunities for people charged with an offense to get the support and education necessary for rehabilitation, and allows successful individuals to avoid the collateral consequences of a conviction, which can be detrimental to future employment, housing, and education. Pretrial diversion should be available to anyone eligible to participate in the program, irrespective of an individual’s ability to pay a fine or fee.
Will you oppose all fees, court costs, and fines associated with pretrial diversion programs?
Will you refuse to make admission to diversion programs contingent on an individual’s ability to pay restitution?
3. Adopt Policies to Avoid the Criminalization of Poverty & End Debtor’s Prison
Local criminal justice systems disproportionately harm people living in poverty. Whether through the imposition of fines and fees as a condition to resolving cases, or through laws that effectively criminalize homelessness, local actors have imposed a poverty penalty on many people within our communities.
Will you make pretrial release, plea agreements, diversionary programs, and other favorable sentencing programs available to all defendants, regardless of ability to pay?
Will you publicly support legislation to outlaw drivers’ license suspensions for non-payment of fines or fees?
Will you oppose incarceration based upon the failure to pay fines, fees, court costs, or restitution unless there is uncontroverted proof the individual is able but willfully refusing to pay?
Will you refuse to prosecute sit-sleep-lie laws, public urination violations, and other quality-of-life conduct that is a byproduct of an individual’s homelessness or poverty?
4. End Civil Asset Forfeiture
In many states, law enforcement can seize money, personal belongings, and property from people without even charging them with a crime or obtaining a conviction. Often, the money seized is then used to pad law enforcement budgets. There is no place for this practice, which has received criticism from across the ideological spectrum. Prosecutors must resolve to put an end to asset forfeiture in their counties.
In September 2016, Governor Jerry Brown signed a new law that limits law enforcement’s abuse of asset forfeiture, wherein the county seizes cash or possessions prior to conviction without proof of criminal activity. Will you work to ensure that law enforcement complies with this new law and decline to seek asset forfeiture except in the most serious cases?
Will you support statewide legislation to end the use of civil asset forfeiture, and work with local officials to end the practice in your county?
Principle #2: End the War on Drugs.
1. Keep People Out of Jail for Drug-Related Offenses
Years of experience with ineffective drug laws and the latest medical research on addiction suggest that treating drug use as a public health issue, as opposed to a criminal justice issue, is a more effective approach to reducing harm.
With the passage of Propositions 47, 57, and 64, California voters have sent a clear message that they do not want people serving harsh sentences for drug crimes. Will you pledge to oppose any legislation of ballot initiatives that roll back or weaken Propositions 47, 57, and 64?
Will you refuse to prosecute individuals arrested with less than four ounces of marijuana, or less than one gram of other controlled substances?
If not, will you commit to offering diversion to all defendants charged with possession of controlled substances, and commit to never seeking jail time in the event of a conviction?
Will you refrain from charging defendants with possession with the intent to distribute a controlled substance based solely on drug quantity or packaging?
Will you support defendants’ efforts to reduce their sentences because they received an enhanced sentence under the Three Strikes Law for a possession offense?
Will you adopt a policy limiting the application of Three Strikes sentencing in your office, and require prosecutors to obtain written approval from a chief assistant prosecutor before seeking enhanced sentences under the Three Strikes Law?
Will you publicly support legislation that reclassifies all drug possession offenses as misdemeanors?
2. Treat Opioid Addiction as a Public Health Problem
The opioid crisis claims tens of thousands of lives every year, and has shown few signs of abating. Prohibitionist policies did not win the war on drugs, and they will not end this crisis. Prosecutors can play an important role in ending the crisis, but only if they treat addiction as a public health crisis, rather than a criminal justice concern.
Will you adopt an office-wide policy stating that drug overdoses will not be prosecuted as homicides cases except when there is sufficient evidence of intent to cause death?
Will you publicly support the creation of supervised injection facilities?
Will you adopt an office-wide Good Samaritan policy stating that individuals who call the police in response to an overdose will not be prosecuted?
Will you commit to devoting AB 109/Realignment funds to housing, treatment, and employment programs, rather than traditional law enforcement programs?
Principle #3: Eliminate Excessive Punishments.
1. Treat Kids Like Kids.
Children’s brains continue developing until around the age of 25 and research supports their enhanced capacity for rehabilitation. As a result, children should not be prosecuted in adult court, nor should they be given punishments that preclude the opportunity for redemption.
Will you adopt an office-wide policy stating that your office will never seek a sentence greater than 30 years, de facto life without parole, for any person under the age of 18?
Will you refrain from moving to transfer any juvenile to adult court for any child unless charged with a capital offense?
In the extremely rare circumstances when a juvenile is sent to adult court, do you agree that their youthful status and unique circumstances should be taken into account as mitigating factors at each stage of the process, from charging decisions through final disposition?
Will you refuse to prosecute school suspension or expulsion cases where there is no use or threat of force resulting in serious physical harm?
2. Do Not Seek the Death Penalty
California has more than twice as many people on death row than any other state.. There is mounting evidence that the death penalty is fraught with error, provides no additional public safety benefit over other available sentences, and is routinely used against individuals with diminished culpability, including persons with intellectual disabilities and severe mental illness, youthful offenders under the age of 21, and those who have experienced extreme childhood trauma. Our next elected district attorney must vocally support the end of this barbaric, error-prone and expensive practice.
Will you commit to never seeking the death penalty? If not, under what circumstances will you consider the death penalty, and what are the factors that will guide your discretion in determining whether to seek the death penalty?
Will you publicly support repeal of the death penalty?
Will you examine previously-imposed death sentences within your county and seek negotiated resolutions for sentences less than death, particularly when there is substantial evidence that the death-sentenced individual suffers from an intellectual disability or serious mental illness, or was under the age of 21 at the time of the offense, or experienced childhood trauma?
3. Promote Proportionate Sentencing and Pathways to Second Chances
People are more than their worst acts, and even people who commit the most serious offenses often change their lives profoundly over time. To recognize the worth and potential for growth in all people, it is important for local prosecutors to provide individualized consideration to the character and background of each person and to the circumstances surrounding the commission of the offense. It also is critical for elected prosecutors to promote opportunities for release, through parole or clemency, and to help remove barriers to reentering society for those who are released from incarceration.
Will you establish an office-wide presumption that the least severe applicable charges apply, and that the lowest sentencing outcome is the correct recommendation?
Will you require prosecutors to justify departures to their supervisors, and require that the chief assistant prosecutor approve all maximum sentences sought?
Will you establish an office policy against increasing or threatening to increase the number or severity of charges in order to secure more favorable plea dispositions or waivers of rights?
Will you publicly oppose any proposed legislation that would create new mandatory minimum sentences or lengthen existing minimum sentences, and support legislation aiming to eliminate such sentences?
Will you support second chances, even for those who commit serious offenses, by both limiting parole opposition to those cases in which there is a demonstrable and serious risk of future violence and committing to affirmatively advocate for parole on behalf of those who demonstrate growth and maturity during their incarceration?
Will you oppose the misleading “Reducing Crime and Keeping California Safe Act of 2018,” a ballot initiative that rolls back justice reforms that voters approved in 2014, and that makes it harder for individuals to obtain parole?
Will you commit to never using “gang injunctions,” which seek criminalize innocent behavior based on who a defendant is, not what he or she does?
4. Eliminate Unnecessary Punishments
Criminal punishments for certain crimes, including quality-of-life offenses, are by definition excessive. They saddle people who pose no public safety risk with criminal records, which become lifelong barriers to economic success.
Will you refuse to prosecute broken-windows offenses such as criminal trespass, public urination, and turnstile jumping?
Will you establish diversion programs for offenses that do not pose a public safety risk, such as low-level theft, prostitution, and criminal mischief?
Principle # 4: Promote Transparency and Accountability to the Community
1. Engage with the Community You Represent
Enhancing transparency and accountability within the district attorney’s office is critical to ending the win-at-any-cost pursuit of high conviction rates that fails communities and to ensuring community accountability. Providing the community with information about arrest rates, charging decisions, and sentencing policies will help build and maintain trust between the office and the community it serves.
Will you maintain and publish an electronic case management system to measure the overall effectiveness of the office—including the number of misdemeanor and felony cases filed each month, disposition statistics, pretrial incarceration rates and length of stay by offense category, and average bond for each class of offense—so that the community can determine the effectiveness of policies aimed at reform?
Will you track racial information at all steps of the prosecution process, and publicly report any significant racial disparities arising at any stage of the process?
Will you build a staff that reflects the diversity of the community the office serves?
Will you conduct open sessions with the community at least once every month, and create other public channels for community members and organizations to engage with the office?
2. Create an Independent Public Integrity Unit
The district attorney must be committed to rigorously and independently investigating and prosecuting police and other official misconduct. An independent Public Integrity Unit tasked with investigating and prosecuting alleged instances of public corruption, fraud, police shootings, or other abuses of power will help avoid concerns about bias in cases involving police misconduct.
Will you develop clear procedures and staff responsibilities whenever an officer-involved shooting occurs, including a robust investigatory protocol and an independent investigatory team that has no regular contact with the law enforcement agency in question?
Will you release dash-cam recordings and audio or video surveillance related to police-involved shootings within 30 days of any incident?
Will you commit requiring to a full investigation of any allegation involving police corruption or violence by the Public Integrity Unit, including presentation to the grand jury?
Will you commit to building a list of all officers under investigation, and providing that list to defense counsel?
3. Develop Policies that Ensure the Integrity of Convictions
Law enforcement officials and prosecutors will inevitably make mistakes. The consequences of wrongful convictions are manifold; the innocent person spends years in prison for a crime he did not commit, and justice continues to elude the victim’s family. Prosecutors must be vigorous in re-examining prior cases whenever there is credible evidence of innocence, and must develop policies that limit the possibility of future wrongful convictions.
Will you establish and fully staff a Conviction Integrity Unit that examines post-conviction cases to identify and correct wrongful prosecutions, independent from any appellate division?
Will you create a review process for all discretionary decisions, from charging through disposition, where senior staff examine whether there is sufficient evidence to support the charges and whether the decision is consistent with the office’s policy of seeking the least severe acceptable charges?
Will you create an office policy recognizing the flaws in informant testimony?
Will you develop clear guidelines regarding the use of informant testimony?
Will you prohibit staff from relying on discredited scientific techniques, such as bite mark analysis or hair strand matching?
Will you develop clear office guidelines regarding the use of forensic evidence and instill respect for scientific methodology, evidence, and analysis?
Will you install a complete open-file policy that provides defense counsel with access to all non-privileged information from the moment the charges are filed?
Will you conduct regular Brady training, require prosecutors to turn over all evidence that arguably falls within the Brady rule, and discipline prosecutors who fail to comply with their Brady obligations?
Principle #5: Promote Policies that Aid Undocumented Communities
California is home to a large and diverse immigrant population. In the last year, undocumented communities have come under increasing attack because of increasingly vicious federal immigration laws. These policies not only allow for deportation because of minor allegations like possession of drugs, but they also make communities less safe, as undocumented victims fear going to court or speaking to law enforcement.
In light of Padilla and Cal. Penal Code §§ 1016.2-3, will you take into account the disproportionate impact of adverse immigration consequences when making policy, charging, and negotiation decisions, as required by both the letter and spirit of California law?
Will you publicly support local ordinances and statewide legislation that affirmatively limits law enforcement’s cooperation with ICE, and oppose any effort to enlist local law enforcement as federal immigration agents?
Will you implement an office-wide policy requiring prosecutors to consider immigration consequences in the charging, plea, and sentencing decisions?
Will you expand pre-plea diversion programs that allow individuals to obtain dismissals of their charges without entering a guilty plea?
Will you affirmatively support post-conviction litigation from non-citizens who pled guilty without being advised of the potential immigration consequences of their plea?