For months I have been writing about the misguided efforts of California leaders to “reform” the criminal justice system. Instead of trying to improve it, these leaders have made it worse for crime victims and their families. Many of these new “reforms” do nothing more than offer leniency to violent criminals. I postulated that perhaps California’s political leaders did not care about the plight of victims or the pain and suffering they have so unnecessarily endured.
I may have been premature in that assessment.
After learning about Senate Bill 81 (SB 81), which is sure to be signed into law by Governor Newsom, I have concluded that our elected officials have completely lost their minds. Law-abiding citizens and crime victims will suffer the consequences of their insanity, while criminals will benefit immensely.
The purpose of this bill is to make sentencing enhancements completely obsolete. This attack began with ex-Governor Jerry Brown, who once proudly declared that California should rid itself of all sentencing enhancements, or at least reform the penal code so that they could not be imposed. A sentencing enhancement is not a charged crime itself, but is added on if the circumstances and facts of the underlying crime warrant it. For example, a robbery — roughly defined as when a subject uses force or fear to take someone else’s property off of their person — can take place without the use of a weapon. However, if a weapon is used, a weapon enhancement will be added onto the charged crime. This is done because society wants to hold people accountable for their actions. Robbery is a violent crime, but if a subject were to use a weapon, that violent crime could turn deadly, and subjects who use weapons during such a dangerous crime must face a harsher penalty than those who do not use a weapon.
Sentencing enhancements cover a wide range of criminal activities, including the use of a firearm, the infliction of great bodily injury, and numerous sexual offenses involving children. However, California leaders no longer are interested in protecting people or holding criminals accountable for their escalated criminal behavior, as will be demonstrated.
When Governor Newsom took office, he formed the California Committee on the Revision of the Penal Code, which was created to comprehensively examine the penal code and come up with ideas on how to reform it. This committee was made of an assembly member, a retired judge, a retired California Supreme Court justice, a law school professor and State Senator Nancy Skinner of Berkeley, who authored SB 81. No prosecutors or anyone associated with law enforcement was asked to be on the committee. No one who currently worked in the criminal justice system was asked to contribute. No victims’ rights advocacy groups were ever consulted. This group began treading on the damaged lives of crime victims without even consulting the people who work in law enforcement. That is lunacy.
The abstract, or summary, for Senate Bill 81 offers an ominous tone for crime victims and their families from the very first sentence. It states, “This bill would, except as specified, require a court to dismiss an enhancement if it is in furtherance of justice to do so.” This means that a court would have to dismiss any and all enhancements charged and proved against a criminal defendant unless a really, really good reason was presented not to do so. The abstract continues.
The bill would require a court to consider and afford great weight to evidence offered by the defendant to prove that specified mitigating circumstances are present. The bill would provide that proof of the presence of one or more specified mitigating circumstances weighs greatly in favor of dismissing an enhancement, unless the court finds that dismissal would endanger public safety, as defined.
This means that at the time of sentencing, regardless of the crime or the circumstances that brought about the enhancement, if a defendant presented any evidence of a mitigating circumstance, the court would have to dismiss all of the enhancements unless doing so would put the public in danger.
Two questions immediately arise from this abstract. First, what are the mitigating factors the court is required to consider? Second, what does “endangering public safety” mean? I will address these questions in reverse order, because it is the answer to the first question that will be proof that current California leaders have no perspective regarding the real world.
“Endangering public safety” is defined to mean there is “a likelihood that the dismissal of the enhancement would result in physical or other serious danger to others.” In other words, criminal judges would now be required to become soothsayers, apparently being asked to stare into a crystal ball and only given the authority to sentence a defendant to enhancements if they could surmise that a defendant would physically harm others in the future. How would a criminal judge be able to do that? How would a prosecutor ever be able to prove that?
As crazy as that is, it is the mitigating factors list in SB 81 that is utterly without rational explanation. The existence of any one of these factors would require the sentencing judge to dismiss all of the enhancements. This list is extensive, so I will mention only a few of the more egregious factors. First, multiple enhancements were alleged in a single case. So, if during a robbery the defendant stabbed the victim and seriously wounded him or her, the defendant would be charged with the personal use of a deadly weapon enhancement as well as a great bodily injury enhancement. Now only one of those enhancements could be imposed, and only if other mitigating factors were not present. Thus, the more violent the crime, the less likely the defendant would be held responsible for those additional violent acts. This factor would actually reward defendants for being more violent by reducing their sentences. Does this make any sense? No. But it gets worse.
If the application of the enhancement could result in a sentence of over 20 years, the enhancement would have to be dismissed. Thus, if a robber shot a gun but did not injure anyone, he formerly could face an additional 20 years in prison. Not anymore. The judge would be required to dismiss that allegation. Criminals will now apparently be allowed to take free shots at their victims and not suffer any consequences.
It goes on. If the current offense were connected to mental illness, the court would have to strike all enhancements. SB 81 describes a wide array of mental illnesses, which includes, but is not limited to, whatever is listed in the Diagnostic and Statistical Manual of Mental Disorders. A whole host of mental disorders is covered by this publication, including mood disorders such as depression, eating disorders, anxiety disorders, phobias and any issues related to unemployment, relocation, divorce or death of a loved one, to name a few. This means that if a defendant suffers from any one of these mental disorders, the court must strike all of the sentencing enhancements.
If the current offense were connected to prior victimization or childhood trauma, the court would have to dismiss all enhancements. To establish this, all the defendant would have to do is get a doctor to write a letter saying the defendant suffered some yet-undefined childhood trauma that could have led to them committing the crime, and those enhancements, regardless of what they were or how violent the criminal act, would all have to be stricken. What child in today’s world hasn’t suffered some sort of trauma in his or her life?
Here are some other factors. All enhancements would have to be stricken, regardless of the other factors, if the current offense was not a violent felony. No juvenile could be sentenced to any enhancements no matter how violent the crime. Hence, if a juvenile were to commit murder, rape, child molestation, arson, mayhem or anything of this nature, he or she would not suffer any additional penalties.
An enhancement also would need to be stricken if it were based on a prior conviction that was more than five years old. Remember the Three Strikes Law, which punishes career criminals who continuously commit serious and violent felonies? Gone.
Lastly, if a firearm were used during the commission of a crime but it was inoperable or unloaded, regardless of the fact the use of that firearm assisted the subject in committing their crime, the related enhancement would be dismissed by the court at sentencing. Several months ago I wrote an article called “No Gun Control for Criminals” about how California legislators were continuously seeking to restrict gun ownership by law-abiding citizens but were giving huge breaks to criminals who used firearms during the commission of their crimes. SB 81 is yet more evidence of this.
Peter Espinoza, the retired judge who is a member of the committee and a strong supporter of SB 81, was quoted as saying, “SB 81 retains the authority of judges to impose sentence enhancements in order to protect public safety.” He went on to state that “SB 81 will allow California to finally restore the bedrock legal standard, ensuring the punishment fits the crime.” In actuality, SB 81 does the opposite. If a subject can establish, for example, that his parents were divorced and that made him sad at one point in his life, SB 81 will allow that subject to use weapons and inflict great bodily injury during the commission of any crime, including murder, assault, rape and child molestation, without fear that he will suffer any additional punishment. In truth, SB 81 is the free-for-all permission that criminals have been wanting for decades.
I would normally tell people to contact their state legislators to vote no on this awful piece of legislation. However, it has already passed both the senate and the assembly. Now it simply awaits the signature of Governor Newsom. These are truly dark days for crime victims as state legislators with no perspective or interest in actually protecting innocent people continue to steamroll through laws that only benefit criminals. We need the citizens of this state to get more involved in what is happening in the area of criminal justice, or these current political leaders will continue to enact laws that will make living in California far more dangerous for law-abiding people.
John Barrick has worked as a prosecutor in the Ventura County District Attorney’s Office for over 16 years, where he has prosecuted some of the most violent crimes committed in the county. He currently serves in the Major Crimes-Homicide Unit. He is also a 2022 candidate for District Attorney.