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Crime & Justice

Public opinion pendulum swings as rape bills counter Gov. Brown’s criminal reform




Gov. Jerry Brown answers a question concerning his proposed 2016-17 state budget at a news conference, in Sacramento, Calif.
Gov. Jerry Brown answers a question concerning his proposed 2016-17 state budget at a news conference, in Sacramento, Calif.
Rich Pedroncelli/AP

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Two bills have been proposed in the California Legislature after a Stanford student convicted of raping an unconscious woman received only a six month sentence for his crime.  

One bill, Assembly Bill 2888 would require mandatory minimum sentencing for anyone convicted of raping an unconscious and intoxicated person and removing probation as a sentencing option. The other, Assembly Bill 29, would require that anyone convicted of committing such a crime serve a full sentence without getting any time off for good behavior. 

However, this measure appears to be in direct conflict with a measure on the November ballot, Proposition 57, which allows offenders convicted of a “nonviolent felony offense” to be up for parole after they’ve served the full term for the primary offense. Trouble is, there is contention about the definition of what a “nonviolent felony offense” is and should be, as Prop 57 does not consider the rape of an unconscious person to be violent.

After Brock Turner -- the student convicted of the crime -- was given what many perceived to be lenient sentence, public opinion has begun to shift around the controversial issues of mandatory minimums and sentence shortening.

In 2014, the public voted in favor of lighter sentences for nonviolent drug offenders, passing Proposition 47. Mandatory minimums have long been out of vogue, after tough-on-crime legislation like the “determinate sentencing” bill Gov. Jerry Brown signed in the 1970s led to prison overcrowding. Prop 57, spearheaded by Brown, is an effort to walk back on the same legislation he previously endorsed.

AirTalk asked two California lawyers to break down the bills -- Stephen Wagstaffe, the District Attorney for San Mateo County, and William Weinberg, a criminal defense attorney from Orange County.

Wagstaffe is the president of the California District Attorneys association. He supports AB 2888, as does his organization. The California District Attorney’s association has no official stance on AB 29, though Wagstaffe personally is not in favor. 

Weinberg, who is based in Irvine, is suspect of both bills. He emphasized that sentencing discretion must remain with judges, and that public outcry can often lead to rushed -- and haphazard -- lawmaking.

Interview highlights

On mandatory minimums:

Stephen Wagstaffe: Nobody wants to [have mandatory minimums for everything]. Even prosecutors. We don’t want to go there. Because we do believe discretion is appropriate for a judge. But we’re talking about the rape of a person. That one is in what we view is in the higher level of crimes that should be dealt with the most harshly. We certainly don’t believe that we should be going back to minimums like that for the nonviolent lesser offenses. 

William Weinberg: A probationary sentence on the rape of an unconscious person is very rare...You don’t want to overreact and take that discretion away from the parties. It’s not just taking the discretion away from the judge, by the way. It’s taking the discretion away from a prosecutor who’s sworn to uphold the law. Not to always seek the maximum, but to seek justice.

On legislating after public outcry:

SW: It’s always a concern. But it’s not new. I’ve been a prosecutor for 39 years, and this has been going on from the day I got into the business. So often the legislature reacts -- and the public reacts -- to an individual case. And that’s why we have the system of the legislature evaluating it and making sure it’s not just on that and then a governor who acts as a safety net to make sure that we are not simply overreacting due to one particular case.

WW: There’s a very old phrase. “Hard cases make bad law.” The idea behind that maxim is that in high profile cases like the Stanford case it lit up so many people with anger that they launched several bills in the Assembly to tighten up the law or increase the penalty. That’s obviously within the ambit of the legislature’s authority to do that, and that’s great after a careful debate and consideration. One thing I’ve learned after practicing law for almost a quarter of a century is that each case rises and falls on it’s own merits -- both from the prosecution’s side as well as the defense’s side -- and there are many many nuances that are lost in the shuffle. If you eliminate the ability of a judge to sentence somebody under very specific circumstances to probation, you’re taking the power away from the people who are closest from the set of facts, and essentially handcuffing them and preventing them from doing their job as they are sworn to do it.

These interviews have been edited for clarity.

Guests:

Stephen Wagstaffe, district attorney for San Mateo County and president of the California District Attorneys Association

William Weinberg, criminal defense attorney based in Irvine, CA

This story has been updated.