Pubdate: Thu, 12 Dec 2013
Source: Sacramento News & Review (CA)
Copyright: 2013 Chico Community Publishing, Inc.
Contact:  http://newsreview.com/sacto/
Details: http://www.mapinc.org/media/540
Author: Nick Miller

LAW AND REORDER: WHY NEXT JUNE'S SACRAMENTO DISTRICT ATTORNEY RACE IS CRUCIAL

Voters Will Elect the First New DA in Two Decades

Maggy Krell, California's current deputy attorney general, has 
garnered big-time Democratic support for her district-attorney run.

Next June, Sacramento will possibly elect its first new district 
attorney in two decades. Choosing a DA isn't "sexy," like voting for 
a mayor. But the DA's impact arguably can be as far-reaching. And the 
current DA race is about more than just deciding who's tough enough 
to put the most bad guys behind bars. This is especially true today, 
because the world of criminal justice is experiencing a radical sea change.

Riding that wave is DA candidate Maggy Krell.

Krell is a Democrat who's corralled all the big party support while 
working under Kamala Harris as deputy attorney general. Her ideas 
speak to this shift; she says that we can't keep incarcerating people 
who'd be better served in community corrections and treatment programs.

"I disagree with the argument that we can't afford rehabilitation," 
says Krell. "What we can't afford is continued mass incarceration."

After decades of drug wars and unprecedented prison empire building, 
leaders in Washington agree.

The Supreme Court has told California that its prisons are criminally 
overcrowded. This fall, Attorney General Eric Holder surprised 
everyone by announcing that states have to stop prosecuting 
nondangerous drug offenders. Recent reports by Stanford University 
and The California Endowment show that growing prisons doesn't make 
streets safer. In fact, it does the opposite.

Here in Sacramento, freshly appointed crusaders such as Sacramento 
County Sheriff's Department Capt. Milo Fitch and Probation Chief Lee 
Seale are working to address the root causes of criminality and help 
people so that they don't reoffend. They get that the status quo isn't working.

It's a huge departure from the lock-'em-up-throw-away-the-key ethos 
that's dominated Sacramento law and order for generations.

Still, there are powerful opposing forces.

District Attorney Jan Scully, who's stepping down after 20 years, and 
her chosen successor, candidate Anne Marie Schubert, continue to 
oblige hard-line, Republican policies at the DA's office. Some local 
attorneys call their regime "unreasonable," unwilling to adapt and 
stuck in an antiquated world of "rigid policy rules."

Twenty years is a long time for voters not to think about these 
issues. That's why next June's vote could be the most crucial in 
Sacramento so far this millennium.

Don't go directly to jail?

The cold of fall has arrived this Wednesday evening in November. 
Krell sneaks into a downtown coffeehouse, orders a cup of black (at 4 
in the afternoon), then laughs about her crazy-hectic work schedule. 
Last night, she was at a white-collar crime event in Los Angeles. 
Later today, she has yet another meeting. Make that a double espresso?

Krell, who started as a DA in Stockton before coming to Sacramento, 
grew up in San Francisco, where her father was an attorney. He was 
also a big motorcycle fan, and she remembers parts scattered 
throughout the garage. Through his private practice, he even 
represented members of the California Highway Patrol. "He definitely 
instilled in me the idea of justice, of wanting everything to be 
fair," she says.

After undergrad at UC San Diego, Krell returned north to the UC Davis 
School of Law, where, according to a classmate, she cruised through 
the bar exam with her "photographic" memory. At this time, she also 
met her husband, now a Board of Equalization attorney, at a bowling 
alley. Coincidentally, his parents also met while bowling. "So, I 
know where my kids are going on Friday nights," she jokes of her 
young children.

It was at this time she figured out what she wanted to do. "I think 
at that point I was pretty sure I wanted to be a prosecutor," she 
recalls. "To be the person who stands up in court for victims, who 
seeks justice for the community."

But, not unlike how President Barack Obama inherited former President 
George W. Bush's two wars and crappy economy, if elected as DA, Krell 
will have to do more than stand tall-she'll have to deal with an 
unprecedented, sometimes confusing and always ever-evolving 
inheritance: realignment.

A quick primer: Because of the Supreme Court ruling, thousands of 
offenders have been moved from state oversight to the county; by next 
year, almost 100,000 prisoners will have been transferred.

"And that population is difficult," Krell explains. "Right now, we're 
releasing people from prisons and county jails and we're not 
supervising them, and they haven't achieved anything during their 
period of incarceration."

That's not a good thing, but it doesn't mean that realignment is a 
failure. Some say moving prisoners and focusing on rehabilitation 
will save the state billions of dollars. Others, such as Sacramento 
County Sheriff Scott Jones, contend that not locking people up is a 
huge threat to California's public safety.

A study released last month by Stanford University professor Joan 
Petersilia says that both sides are "talking past each other."

We don't know, for instance, if realignment worked, because there 
hasn't been any study to evaluate it. And the report says powerful 
stakeholders with "a skin in the game"-such as the corrections 
unions-often won't relinquish funds to invest in rehabilitative 
efforts (as has been the case in Sacramento County).

And there's "huge discretion among counties, and counties face 
different realities," the report states. This means that what happens 
in the Sacramento County DA's office will be a lot different than, 
say, in Alameda.

Scully and Schubert's embrace of realignment has been lukewarm. This 
past year, the DA partnered with Rancho Cordova-based Assemblyman Ken 
Cooley on a bill to move more nonviolent drug offenders into prisons. 
Their argument was that the local jails are too overcrowded for these 
criminals, many of whom are serving sentences of five years or more.

Critics say these offenders need help, but won't get the 
rehabilitative treatment available at county jails, such as the 
mental-health services at Sacramento County's Rio Cosumnes 
Correctional Center near in Elk Grove, in state prisons.

The law died in committee this past May, but the battle continues.

Krell says we can't waste more time looking at prison-based 
solutions. "It's time to pay the piper for all the 
incarceration-based approaches different counties have had over the 
past decades."

Doubling down on a failed drug war

But still, to this day, Scully's regime and DA candidate Schubert 
continue with policies that critics say aggressively incarcerate 
nonserious, nonthreatening offenders.

Former Justice Rick Sims, who sat on the 3rd District Court of 
Appeals based out of Sacramento for nearly three decades, has endorsed Krell.

"She has energy, a different viewpoint and smart priorities," he said.

When asked of the biggest challenges facing the DA's office in this 
post-realignment world, the retired justice didn't hesitate:

"The greatest realignment that has to take place is to lay off the 
prosecution of certain drug offenses, particularly marijuana," he told SN&R.

Sims recounted his 28-year experience as a judge. "I would see these 
cases come through ... with three-strikes law in effect. And I would 
sit there on cases, and the third strike would be a possession of a 
small amount of cocaine, in their shirt. And they would get 25 to life."

Proposition 36-opposed by the California District Attorneys 
Association, of which both Scully and Schubert are board members-was 
passed by voters last year, and in theory, it, along with 
realignment, should have changed things in Sacramento. To put someone 
away for life, the final strike must now be serious and violent. More 
than 50 offenders have been resentenced since its passage.

Yet this county's DA office continues to go after nonviolent drug 
offenses, sometimes with the full force of the law.

Local defense attorney John Duree has worked on drug cases and with 
addicts since 1981. He says that most people who experiment with 
drugs don't keep it up. "Lots of people play around with drugs and 
leave them," he observed. "Drugs aren't that much fun for a long 
period of time, and a lot of people quickly figure that out."

Law enforcement's tentacles, however, often capture large swaths of 
users. But do all these offenders deserve jail time?

Consider Duree's client Robert Malone.

In 2009, the same year Obama's Department of Justice stated that 
prosecutors should no longer target individuals complying with state 
medical-marijuana laws, local law enforcement pulled Malone's van 
over and cited him for possession of marijuana plants.

Turns out, Malone-a 65-year-old retiree with zero prior 
convictions-was cultivating "clones," a term for baby cannabis 
plants, in the Bay Area and selling them to Sacramento marijuana 
dispensaries, of which there were more than 100 at the time. These 
plants were extremely popular at pot clubs, and they would sell out 
in a matter of days.

As Duree explained, in the criminal-justice world, most cases are 
negotiated. "And in negotiations, the DA carries much more weight 
than the judge."

For Malone and his cannabis plants, Duree tried to work with the 
Sacramento DA's office, explaining that his client was a nonviolent 
man who was only trying to sell medical-grade cannabis by the word of 
the law to legitimate dispensaries.

"I was personally convinced that this guy was a bona fide medical 
producer," Duree said. "He tried to follow every rule he could 
follow," based on the state attorney general's guidelines. In most 
counties, these types of cases are dropped, he said. But negotiations 
with Scully's regime failed.

Instead, her office offered up a seven-year incarceration sentence.

Duree rejected, of course-but then the deputy DA threatened to take 
the case to the feds, which would mean certain conviction and a 
guaranteed multiyear sentence.

"I didn't have any other option other than to resolve it," said 
Duree, who pleaded his client earlier this year. Malone ended up 
receiving a two-year sentence, including a full year in jail, this 
past May-all for a nonviolent marijuana offender in his mid-60s with no priors.

"It's just a waste of law-enforcement and prosecutorial resources to 
continue to make this a priority," Sims said. He says with Krell, 
"There would be a difference in drug prosecutions and the way drug 
offenders are treated in the system."

Krell says there's a lot of "confusion" surrounding the state's 
marijuana laws, but that prosecuting nonviolent, low-level cannabis 
offenders isn't the answer.

Schubert, meanwhile, recently referred to the state's laws an "excuse 
for individuals to get the drug."

A different way

Imagine a 24-year-old with a wife and young child is arrested for 
stealing a thousand-dollar car stereo. Let's pretend this young man 
is a first-timer. If he goes to jail, he potentially loses his job, 
his family forfeits income and the offender will have a hard time 
finding employment upon release. If he spends enough time in jail, 
odds are that he reoffends. Or commits an even worse crime.

Now, an alternative: The DA sends him to a community corrections 
program under the probation department's supervision. Maybe he has a 
drug problem, so he gets treatment there. Or perhaps he stole the car 
stereo to pay for a hospital bill-so, at probation, an eligibility 
specialist signs him up for expanded Medi-Cal under Obama's 
Affordable Care Act reform law, and his family now has health care.

Which outcome do you prefer?

"We have a tremendous opportunity to make a person's first crime 
their last crime," Krell says of this different way. It's a 
philosophy that's taking root nationally-and even a little bit here 
in Sacramento.

Two weeks ago in Washington, D.C., the attorney general brought the 
former head of the East Palo Alto Police Department, Ron Davis, on 
board to lead up a new community-policing office. The attorney 
general argued that because prison populations have grown by more 
than 800 percent since the 1990s and consume more than 25 percent of 
the DOJ's budget, the status quo isn't an option.

Davis tried new approaches in the Bay Area. He reduced the homicide 
rate there by 50 percent during his tenure by getting to kids while 
they're young, before they offend. Krell aims to do the same.

"My biggest priority is really focusing on the front end, on new 
people that commit crimes, especially juveniles," she says.

She insists that this isn't giving criminals a free pass. "I think 
under my watch, more cases will be filed, frankly," she argues.

How's that possible? As it stands, the Sacramento DA's office won't 
file a case if they don't deem it serious enough. That means, 
basically, there's no repercussion for a boatload of offenders. Krell 
says she'll have deputies go after these small offenses. "Because, if 
you don't, you're sending the wrong message. You're saying that you 
can get away with it." Instead, they're going to have to earn it.

New Sacramento Probation Chief Lee Seale will help dangle a carrot.

Probation is no longer just about guns, badges and making sure people 
aren't hiding drugs in their apartments. That's a part of it, for 
sure, but there are also Adult Day Reporting Centers that, recently, 
started helping probationers with anger management, job applications, 
even clothes for interviews. They hold graduation programs every 
other month. "It's really promising," Seale said, "because you see 
stories of success.

"And this is actually going to lead to better recidivism outcomes 
than banging on doors," he added.

Krell believes in this approach, and says she would put on her 
advocacy hat to ensure further investment. "Our recidivism rates are 
very high. They're definitely above 50 percent, and there's an 
argument that they're above 70 percent," Krell says. She sees this as 
"a failure rate."

"We can go around and be proud that we have a very high conviction 
rate. We prosecute people. They're guilty. We can prove it. We get a 
conviction. That's great.

"But the question I want to ask is, 'What is the impact of those convictions?'"

The big debate

Every living sheriff, who tend to endorse Republicans with knee-jerk 
aplomb, has backed candidate Schubert. That's why, during a debate 
this past November at the sheriff's community service center in south 
Sacramento, it feels like she definitely has home-court advantage. It 
also doesn't hurt that the county's top law man Jones is the 
evening's opening speaker.

A 23-year veteran of the Sacramento DA's office, Schubert describes 
herself as an "in the trenches" prosecutor who's notched more than 
100 jury trials. She says she "knows how to put people behind bars."

A third candidate, former Assistant U.S. Attorney Todd Leras, who 
only recently entered the race, is also a Democrat like 
Krell-although she's gathered all the major endorsements, such as 
Senate President Pro Tem Darrell Steinberg and State Treasurer Bill 
Lockyer, and to that end, all the big party donors.

Still, Leras (read SN&R's recent interview with him, "Word of the 
law" by Jeff vonKaenel, SN&R News, November 21 at http://tiny 
url.com/ToddLeras) has a similar take on the Scully administration, 
for whom he actually used to work before leaving in frustration. "The 
listening stopped," he said of his experience with Scully brass, "and 
criticism was somehow viewed as disloyalty."

At the debate, the panel and audience questions have very little to 
do with issues mentioned in this story. They focus on human 
trafficking, gangs and even National Security Agency spying. 
Realignment gets but little air time, even though all three 
candidates agree that there will be no greater challenge.

That said, the night is not devoid of a fireworks.

For months, Schubert was the lone candidate in the race and, by turn, 
essentially Scully's heir apparent. But when Krell announced her 
candidacy late last spring, there were suddenly two viable candidates 
with healthy campaign coffers. Schubert went into attack mode.

At the debate, she accuses Krell of "prosecutorial misconduct," 
arguing that she made an error during a 2007 trial that caused an 
appeals court to overturn her conviction. Krell has denied this, but 
Schubert does not relent.

"Was a case not thrown out, yes or no?" Schubert demands.

Prosecutorial misconduct implies an ethical lapse, such as knowingly 
hiding information from the defense. In Krell's case, she mistakenly 
referred to a defendant, who refused to testify, by name. In a recent 
story, Sacramento Bee courts reporter Andy Furillo asked local judges 
if they felt Krell's error qualified as misconduct or just a mistake. 
The verdict was mixed. Former Justice Sims called it "a small error," 
not an ethical hiccup.

What is clear is that next year's race will be contentious, fiery and 
unrelentingly political.

"I know this is supposed to be a nonpartisan race," Sims told SN&R. 
"But [Krell] is a Democrat, and her principal opponent is a 
Republican." There are going to be partisan attacks.

Krell's no stealth candidate. It's the issues that matter, and she 
drives them home to the debate's crowd of nearly 100:

Sacramento can't continue filling up jails and prisons with 
low-level, nonviolent, first-time offenders.

The recidivism rate is embarrassingly high.

Increased drug rehab, mental-health treatment, and community and 
workforce programs are woefully needed.

And taxpayers literally can't afford more of Scully and Schubert.

After, she tells SN&R a story about when she was DA, and how she "saw 
the same criminals recycling through the system, the same criminals 
repeating the same crimes again and again."

She says she also saw families and family names that were familiar, 
because it would be the uncle, then the nephew, then the son who was 
in trouble. "We used to kind of say, 'Well, today's witness is 
tomorrow's defendant.'"

After 20 years, she says, this has to change.

"We need to be sort of dramatic, and drastic, to break that cycle."
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MAP posted-by: Jay Bergstrom