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March 4, 2018

Noting lengthy struggles in California over the definition of a violent crime

Federal sentencing practitioner know all too well how hard it can be to clearly define what offenses qualify as a "crime of violence" or a violent felony. And while the federal jurisprudence over this issue can be hellish, states can struggle with similar issues in various contexts.  This new Los Angeles Times article, headlined "How a list of 23 crimes now dominates California's debate over prison punishment," explains:

Consider the last two years of debate over what should, and should not, be a "violent" crime. That debate begins with the index of crimes in section 667.5 of the California Penal Code. The list was first enacted in 1976, and has been tinkered with so many times it's hard to say whether it's a fair representation of the most heinous crimes.

Here's why that matters: The list is now a key part of determining which California prison inmates are eligible for early parole under Gov. Jerry Brown's 2016 ballot measure, Proposition 57. A legal fight over how to interpret the ballot measure could become a potent political issue.

Brown signed the law creating the original list of violent crimes during his first tour of duty as governor. It's since been amended or expanded 38 times, the last effort in 2014. Eight specific offenses or crime categories were in the original version. Now, there are 23 crimes. The list almost doubled in size in just the five years between 1988 and 1993.

So what's included? Some violent crimes are relatively straightforward — murder, attempted murder, voluntary manslaughter, robbery, kidnapping. (Kidnapping, interestingly, was dropped from the list in 1977 with no noteworthy explanation and added back in 1991.) Some additions, like the inclusion of carjacking in 1993, were sparked by news events. A prosecutor told The Times that year that classifying the crime as "violent" would give "local district attorneys another weapon in their arsenal to attack this epidemic."

Voters opted to tweak the law twice, making substantial changes that weren't well publicized in those elections. Proposition 21 in 2000 removed the long-standing focus on specific kinds of robberies — those in someone's home and involving a "deadly or dangerous weapon" — and instead made "any robbery" a violent crime. In 2006, voters added more definitions of sex crimes.

And yet other crimes have long been sliced relatively thin. Only specific circumstances in the case of rape or first-degree burglary are on the list of violent crimes. It's doubtful, as a result, that the 23 offenses cover everything the average Californian would think of as being "violent."

This might not be a pressing issue if not for the changes brought on by Brown's 2016 ballot measure, which expanded parole opportunities to those serving time for a "nonviolent felony offense." That phrase is brand new, and Proposition 57 placed the term in the California Constitution.

It's unclear, though, whether "nonviolent felony offense" is just another way of saying any crime that's not on the list of violent crimes. A Sacramento Superior Court judge last month rejected that idea. At the same time, the judge ruled that some convicted sex offenders — who the Brown administration has deemed ineligible under Proposition 57 — should be considered for release because they weren't convicted of one of the 23 crimes.

Judge Allen Sumner's ruling seemed to hint that current law is full of knots crying out to be untangled. He wrote that "it is by no means clear what the voters understood, or intended, the term 'nonviolent' to mean."

Some prior related posts:

March 4, 2018 at 11:08 PM | Permalink

Comments

Why not keep it simple, use the legal definition of "Assault?" Intent, apprehension or fear in the victim, ability to carry out physical harm at the time of the crime. That excludes verbal threats without ability to do physical harm at the time of the threat. Let the trier of fact decide the presence of apprehension, perhaps even based on victim testimony. I mean testimony, not cry baby attestation without cross examination.

The question is not full of knots, not even to a Life Skills student learning to eat with a spoon, but only to lawyers.

California is the most over-lawyered state. This false controversy, these bullshit questions, are to generate worthless appellate advocacy jobs.

Posted by: David Behar | Mar 5, 2018 1:13:03 AM

I am the attorney challenging CDCR's regulations that implement Prop. 57. I am also the founder and Executive Director of the Alliance for Constitutional Sex Offense Laws, a national non-profit, dedicated to protecting the Constitution by restoring the civil rights of registrants (aka "sex offenders").

Posted by: Janice Bellucci | Mar 5, 2018 9:21:57 PM

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