The criminal justice-reform movement lit up earlier this year when Philadelphia District Attorney Larry Krasner released a memo outlining new instructions for the prosecutors he oversees.
Krasner, a former defense attorney, is part of a crop of reform-minded district attorneys and candidates for DA seeking to change the criminal justice system at the local level from the outside in. It’s a group that includes Genevieve Jones-Wright, a career public defender who’s running to become San Diego’s district attorney.
But there’s one thing that would prevent Jones-Wright, if elected, from enacting the kind of reforms Krasner laid out: Many of them are already law in the state of California. Through ballot measures and state legislation, reformers have pre-empted local prosecutors and gone right to the source.
That creates a different baseline for the race to be San Diego’s next district attorney, a contest that has caught national attention for the stark contrast it presents between Jones-Wright and career prosecutor Summer Stephan.
Krasner told prosecutors to seek shorter probationary periods following jail sentences. AB 109 did the same in California. He instructed prosecutors not to bring charges on low-level marijuana arrests, which California accomplished by legalizing pot. He decriminalized retail theft under $500, like California’s Prop. 47. He ended prostitution charges for sex workers who have fewer than three convictions; with SB 1322, California ended prostitution charges for minors, and with SB 823 it let human trafficking victims clear their records of non-violent crimes, like prostitution.
Reforms with which Jones-Wright might have started are already in place and will be no matter who wins. At the same time, Stephan’s campaign has said “San Diego public safety is under attack thanks to Jones-Wright” – yet the changes she promises are to some extent already underway.
Going Further, or Closing Loopholes
Both Jones-Wright and Stephan agree that California has already taken more steps than most places on criminal justice reform.
To Jones-Wright, it’s a good start. To Stephan, flaws in the measures passed so far are now being exploited, and need to be closed up.
So what does a reformist district attorney even look like in reform-minded California? Jones-Wright listed a handful of changes she’d make:
• One major area the district attorney’s office could make a difference, she said, is in pushing local law enforcement to adopt policies that make it easier to discipline officers who violate department procedure.
“We should start to instill a culture in San Diego that the state can follow,” she said.
• She said the district attorney’s office can effectively decriminalize low-level offenses simply by refusing to charge them.
She’d start by instructing her deputies not to charge any quality-of-life offenses that disproportionately target homeless people, like illegal lodging and public urination. She referred to a case, reported by Voice of San Diego, in which an officer testified in court that he saw a homeless man sleeping in the back of his truck at Mission Bay. Body camera footage showed that was not true.
“We have to stop it by not making it a crime – if it wasn’t a crime, officers wouldn’t lie and perjure themselves just to get a conviction. We have criminalized being poor,” she said. “We’ll see that when we address nonviolent, low-level offenses in a different way and treat people like humans — we already have an overworked police force and we have them arresting homeless people and doing clean-up. That’s not what they should be doing.”
• She said she’d stop charging “buy bust” arrests, in which undercover officers conduct minor stings to arrest street dealers and users for buying or selling small amounts of drugs.
“Our officers are running undercover operations, down by the Neil Good Day Center (for homeless people), walking up to people saying, ‘Do you have a rock?’ and they say yes because they smoke crack, taking $10 and arresting them.”
“We’re not doing it” she said. “This is where I talk about prioritizing violent crime. We won’t do this little stuff.”
Stephan said there were positive elements to many of the state’s major reforms, but that they all had flaws. She said her priority would be fixing those problems – and making them tougher on crime.
• Stephan was a chief deputy when Prop. 47, which made many non-violent felonies into misdemeanors, passed. Her boss, Bonnie Dumanis, was a vocal opponent of the measure.
Now, Stephan said she’d work with Gov. Jerry Brown to fix the most-cited complaint about Prop. 47.
One of the crimes it addressed was retail theft, which is a misdemeanor when the items stolen total less than $950. Stephan said it’s created a cottage industry for a small population of thieves to steal less than $950 worth of goods from stores every day, indifferent to how many times they’re charged with misdemeanors.
“Brown was a huge advocate of Prop. 47, but he’s asked me as a DA to help amend it so these persistent recidivists aren’t taking advantage of these loopholes,” she said. “I never had a view that it was all good or all bad; I want a seat at the table to negotiate with our experience with creating a carrot and a stick.”
She mentioned, for instance, charging people in these cases with a felony, but offering drug treatment to those suffering from addiction, with an opportunity to erase their conviction when they finish treatment.
“I want to be at the table at the beginning to offer my three decades of experience, so that we can fashion things with less loopholes,” she said.
• That sounds a lot like Dumanis did on Prop. 57, passed in 2016. Dumanis explicitly said she supported that measure so she could “have a seat at the table” to “address law enforcement’s concerns.”
Prop. 57 gave parole hearings to nonviolent felons who’ve served their sentences for their primary offenses, offered sentence credits to those who do rehabilitation programs while incarcerated and lets judges decide whether juveniles should be charged as adults.
Stephan said it has loopholes that need closing, too.
“Human trafficking is considered a nonviolent offense,” she said. “Rape of an intoxicated person is a nonviolent crime. There’s a lot of good in it, but these are loopholes where we’ll work on legislation to fix it.”
Chief Prosecutor – and Chief Prosecutor’s Lobbyist
Both Jones-Wright and Stephan think the DA’s role in major reforms is only partly reflected in prosecutorial decision-making. It’s also crucial to consider how they can lobby the state.
“Yea, California’s already got some of these things rectified, but the important thing is that they were mostly voted on by the people, and opposed by the current district attorney’s office,” Jones-Wright said. “We need our office to be headed by someone who understands the needs and is proactive, not reactive.”
Stephan said the DA’s office led the way in its implementation of some of the state’s boldest reforms.
Before AB 109 – the state’s landmark realignment legislation, which transferred convicts from state prisons to county jails and shortened parole and probation periods post-release, for instance – she said San Diego implemented a pilot program that began inmates’ post-release rehabilitation program while they were still incarcerated, and saw lower recidivism rates. She was part of an effort after realignment that toured the state telling other DAs to invest in something similar.
She said San Diego County, post-Prop. 57, has the second-lowest rate in the state of charging juveniles as adults.
“That’s a drastic difference between us and others in the state,” she said.
The Stephan campaign’s argument has not been subtle: It says Jones-Wright represents a distinct threat to the region. The campaign describes Jones-Wright as anti-law enforcement, says public safety is under attack thanks to her and has, for instance, characterized her as wanting “to close our prisons and let dangerous criminals walk our streets.”
Jones-Wright thinks California’s experience with recent measures – the state enacted criminal justice reforms, and San Diego remained a low-crime region and functioning society – should disprove the narrative that she’s promising radical ideas that should scare typical residents.
“She’s doing these scare tactics, and not understanding that what they’re trying to pin me on is where we’re going as a state,” Jones-Wright said, referring to Stephan. “I’m going in the direction that San Diegans have the will to go in. They’re painting her as a reformer – she’s a reactive.”
Stephan, for her part, said she stands by the allegation that Jones-Wright’s proposals are “fairly worrisome.”
“She made a pledge in writing that she’ll never seek the death penalty, even though over 60 percent of voters upheld the death penalty,” she said. “She took a pledge that no one under 25 would face the possibility of life without parole. It’s abdicating your duty to follow the law. I’ll leave it to the community to decide if that’s a threat to public safety.”
Correction: An earlier version of this story misquoted Jones-Wright. She said officers ask drug users or sellers, “Do you have a rock?” when making so-called buy-bust arrests.