In the past few years, cities, counties and the State of CA have thrown billions of dollars at addressing the intertwined issues of homelessness, drug sales and crime, yet our crime statistics continue to rise along with a revolving door policies for the many repeat offenders in Humboldt County.  What SPECIFICALLY will you do differently to address repeat offenders?  The current DA talked a big talk on this issue yet nothing was accomplished - it’s difficult to trust that any newly elected DA would do any different.

— Arcata Resident

Response

Michael Acosta

REVOLVING DOORS

Punishment in our society, in order to be Just, must possess three qualities. It must be:

1. Retrospective: punishment is for what the offender has already done (past-tense), regardless of the offender’s probability of recidivism, the offender’s amenability to rehabilitation, or the offender’s present utility to society, (which are all prospective considerations);

2. Proportional: the severity of punishment must fit the gravity of the actual harm done (i.e. the punishment fitting the crime); and

3. Equal: the punishment must be the same given to other offender’s convicted of the same crime (i.e. you do the crime, you do your time).

     Justice is only achieved if punishment is retrospective, proportional, and equal.  This is the basic theory of retributive justice, a theory with roots in the Bible and Roman Law (lex talionis), and finding modern support in the 18th century writings of Immanuel Kant [See “The Metaphysics of Morals” (1797) and “Groundwork for the Metaphysics of Morals” (1785)]. The metaphor of the “revolving door,” which is widely used to describe the rampant recidivism within our failed system of criminal justice, is the product of our system’s tainted retributive justice theory. With this in mind, I would implement the following specific policies in order to address repeat offenders and dismantle the revolving door.

1. ELIMINATE N.O.P. PLEA BARGAINS

     90% of criminal cases are settled by plea bargains. A N.O.P. plea bargain is one in which the prosecutor will have no opposition to probation (N.O.P) at sentencing, usually with the understanding that there will be no additional jail time imposed. I would eliminate N.O.P. plea deals entirely for all offenders, and standardize a schedule of jail sentences to be offered in plea deals (based on the gravity of the offense and adjusted for offender’s criminal history.) The DA’s office would therefore only enter into plea bargains that involved actual jail time, and, to the greatest extent feasible, eliminate the abomination of probation.

     Why is probation an abomination? By definition, probation involves the suspended imposition of sentencing, based on the notion of second chances, which is noble, but substantially taints the purity of retributive justice (i.e. that the severity of punishment for harmful conduct should be proportional to the magnitude of the actual harm done.) Probation is also offender-centric, as it is the offender’s option and opportunity for leniency, but there is almost no evidence that probation rehabilitates an offender, because it is not immersive enough to facilitate rehabilitation. It also does little for victims, as the minimal supervision provided by probation doesn’t meaningfully protect victims from an offender any more than a restraining order does, nor is there a restorative aspect of probation, as all that is required of an offender is to be supervised.

     The largest problem with the institution of probation is that it initially discounts the punishment deserved for the commission of an actual crime, but then nit-picks the offender for conduct that normally isn’t criminal at all (e.g., like failing to check in, giving a dirty drug test, not being at the right place at the right time, failure to maintain a job, or failure to report a mere police contact). Offenders on probation are constantly and repeatedly incarcerated for these types of non-criminal conduct. So, the initial discount on incarceration for the underlying crime just turns into smaller successive periods of incarceration for non-criminal conduct. Hence, the revolving door phenomenon.

     Recently, the conceptual defects of the institution of probation have been acknowledged by the legislature with the passage of AB 1950, which became effective on January 1, 2021. AB 1950 was designed to reduce the percentage of inmates that are serving time for non-criminal conduct. AB 1950 reduced probation terms from a maximum of 3 years to 1 year for most misdemeanors, and from 5 years to 2 years for most felonies, unless otherwise specified. Where AB 1950 falls short is by not exacting jail time up front in exchange for reduced probation. I believe AB 1950 didn’t go far enough, and should have entirely abolished probation and imposed a schedule of mandatory times for various crimes, based on the gravity of a crime and measured by actual harm done to a third party, and with a standardized deviation for an offender’s prior record. Despite AB 1950, if the DA’s office committed to not entering into N.O.P. plea bargains, probation would be eliminated in 90% of the caseload, which is well-within the DA’s prosecutorial discretion.

2. ELIMINATE QUID PRO QUO PLEA BARGAINS

 

     An important implication of retrospectivity in retributive justice theory is that it doesn’t allow for a criminal offender’s prospective utility to be considered. In fact, to consider anything prospective, including an offender’s amenability to rehabilitation, is an impurity because it is inconsistent with the simple idea that “if you do the crime, you do the time,” regardless of who you are or what you can now offer. So, the utilitarian idea of the quid pro quo plea bargain, in which the DA’s office engages in commerce with the offender by trading punishment for revenue potential, is also an abomination to the principle of liberty and justice for all. As uncomfortable a topic as it is to some people, I am here to tell you that the “revolving door” of repeat offenders will never be fixed until quid pro quo plea bargains are eliminated, and I would eliminate them entirely. There would be no “get out of jail free” vouchers given as “finder’s fees” for potentially revenue-generating information (i.e. information which could be used to invoke forfeiture laws and make money for the DA’s office.)

     Yes, this would result in a small loss of revenue to the DA’s office, as the DA gets its “equitable share” of a whopping 10% from completed asset forfeitures, but it would reduce the cost of prosecuting separate civil forfeiture cases, and, more importantly, would result in fewer repeat offenders. The reason why is that rewarding cooperating offenders by excusing the crimes they have committed not only fails to exact punishment due, but also graces the offender with a sense of exemption from punishment for future crimes. In other words, when offenders are rewarded with “get out of jail free” cards based on their prospective utility to the DA’s office, then those offenders are likely to repeat their offenses with impunity. It’s inadvertent, yet classical conditioning, just like Ivan Pavlov’s dogs.

     Unfortunately, the prevalence of this quid pro quo practice and its overall impact on public safety is protected by prosecutors through the frequent invocation of the informant’s privilege found at Evidence Code 1041 (the legislative intent of which was not to excuse criminals for crimes committed in exchange for potentially lucrative information, but to promote the confidential gathering of intelligence on criminal activity from citizen-informants who give information altruistically for the betterment of society.) And unlike the federal government, which provides transparency to the public by publishing statistics on “otherwise illegal activity” (i.e. government-authorized crimes), the local government doesn’t publish, nor keep such statistics. So while this quid pro quo practice is acknowledged by prosecutors, its statistical prevalence as a means of generating revenue is protected by an over-broad interpretation of evidentiary privilege. Without full transparency, or the elimination of this practice, the public is left in the dark as to why crime is still rising. It is the missing link that explains the public’s bewilderment and frustration regarding rising crime despite world-record incarceration rates. It is why registration violations by sex offenders are only given token, annual enforcement. And It is why the same thieves keep stealing personal property from cars, garages, and front yards in your neighborhood, and in mine too. I will fix this by ending quid pro quo plea deals.

3. INSTITUTE A PROGRAM OF EXCLUSION FOR THE WORST REPEAT OFFENDERS AND ALL UNREGISTERED SEX OFFENDERS

     As the only alternative to incarceration without probation, I would offer plea deals in which exclusion (a.k.a, banishment from the County) for a period equivalent to the maximum sentence (without good time credits) serves as punishment for repeat offenders of property crimes, repeat offenders of controlled substance laws, and to each and every unregistered sex offender. It has been suggested by one of my opponents that this may pose Constitutional problems, however, I am confident that such a practice is Constitutionally sound, as there is federal precedent in Indian Law, which allows Tribes to exclude non-members from Indian Reservations, and state precedents in more than one state of this Union. Excluding someone from the County for the maximum term of their sentence rather than having them serve only half of the maximum term in jail (because of good time credits) is a fair trade-off to the offender and to the public. It would be an old West “Get outta Dodge” strategy tailored for the modern era. Humboldt County attracts (and is burdened by parole with) all sorts of career criminals who thrive in geographically large regions with lower population densities. Here are two articles demonstrating a growing sentiment that exclusion be reintroduced as a remedy:

 

[Bring back exile as a sentencing option | The Hill]

 

[Letter: Maybe it’s time to bring back banishment | Opinion | guampdn.com]

A CHOICE OF DOORS AND DOOR MECHANICS

     In conclusion, when there is agreement across the political spectrum that a critical government function is largely broken, like a door that shouldn’t be revolving, then I would assert that these bolder remedial steps must be taken; however, whether you, the voter, just want routine revolving door maintenance, maintenance with modernization, or an entirely different, non-revolving door is your choice.

 

 

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