Criminal Justice Reform in California: Five Bills That Could Dramatically Change the Golden State’s Criminal Law Landscape

Apr 18, 2019

In 2018, California ushered in a new era of criminal justice; both the cash bail system and the felony murder rule were abolished with the stroke of then-Governor Jerry Brown’s pen. Not to be outdone, state legislators have introduced 2,628 bills since December 2018. Here, we will focus on five criminal justice reform-related bills.

1.  Automatic sealing of criminal records – AB 1076

AB 1076 would automatically seal the criminal records of an estimated 8 million people arrested or convicted of non-violent misdemeanors and infractions. While California allows people to petition the court to seal their records, most people fail to do so. One of AB 1076’s supporters, San Francisco District Attorney George Gascón, observed, “The current laws allow people to get this relief” but most people are “unable to get the relief because they either don’t have the resources or they don’t have the time.” Supporters say that automating the process will increase the educational and professional opportunities available to low-level offenders. Assemblyman Phil Ting explained, “We know what the impacts are when you have something on your record. It’s hard to find a job, it’s hard to find housing, it’s hard to have a normal life.” However, skeptics have expressed concern that the automatic sealing of records will overwhelm local courts and prosecutors’ offices.

2.  Limits on when police officers can use deadly force – AB 392

Under CaliforniaPenal Code § 196, homicide is justifiable when committed by a police officer:

  1. If ordered by the court; or
  2. “in overcoming … resistance to … legal process”; or
  3. “retaking” escaped or rescued felons or arresting someone charged with a felony, who is “fleeing from justice or resisting arrest.”

The Supreme Court has traditionally treated deadly force cases as seizures under the Fourth Amendment. As a result, these “seizures” have been evaluated for reasonableness. AB 392, if passed, would change this standard. AB 392, or the California Act to Save Lives, allows “police to use deadly force only when ‘necessary’ to prevent imminent and serious injury or death as opposed to when ‘reasonable.’” When Assemblywoman Shirley Weber introduced the legislation, she argued that the bill will prevent unnecessary deaths because it will “clarify law enforcement’s obligations.”

Opponents claim that AB 392 will discourage proactive policing. The California State Sheriffs’ Association cautioned, “Fearing repercussions ranging from employee discipline to criminal prosecution based on this new standard, it is possible that officers who today would purposefully put themselves in harm’s way to do their job might tomorrow decline to act.”

3.  Creation of use of force guidelines and policies – SB 230

Similar to AB 392, SB 320 seeks to redefine justifiable homicide for police. Under this proposal, homicide is justified when arresting someone who poses a threat of death or serious physical injury. Further, the bill would require law enforcement agencies to implement regular training regarding use of force. While advocates argue that this measure ensures both officer and community safety, opponents have criticized the bill as superficial and vague.

4. Requiring jails to offer in-person jail visitations – AB 964

In recent years, jails throughout California have implemented video visitation programs. These programs can significantly reduce the burden of in-person visitations, for both staff and visitors, but they can also be costly. While California law requires jails with onsite visitation programs to not charge for visitation, there aren’t similar protections for video visitation. As a result, a twenty-minute video visit can cost $15. Under AB 964, all jails would be required to offer in-person visitation. Critics of the bill contend that this requirement would send jail facility costs skyrocketing. In response, supporters point to studies showing reduced rates of recidivism for inmates with regular, onsite visitation.

5.  Banning cell phones in “correctional facilities” – SB 694

Bringing a cell phone without authorization into any “correctional facility” is currently a misdemeanor. However, Senator Jeff Stone introduced SB 694 because he was concerned that the current law does not clearly define correctional facility. Under this proposal, “correctional facilities” would be clearly defined to include fire camps and juvenile halls. Support for this bill is high within the law enforcement community – the Chief Probation Officers of California sponsored the bill. Opponents, including the ACLU, have argued that the bill is unnecessary because the law is already clear.

Voting on the majority of these bills is scheduled for the end of April, 2019. In the meantime, what do you think of these five proposals? Do they go far enough or too far? Share your thoughts in the comments.

By:  Ashley Riser  At Jayne Law Group, P.C., Ashley Riser represents individuals and small businesses in both federal and state court. From complex, white collar litigation in federal court to misdemeanors at the local level, Ms. Riser is enthusiastic about criminal defense. She brings a combination of extensive courtroom experience and detailed-oriented research and writing skills to the Jayne Law Group team.