A Vote of No Confidence in Proposition 21
The proposal to sacrifice prevention in favor of penalties does not advance the cause of justice
By Patricia M. Schnegg
Patricia M. Schnegg is president of the Association.
This President's Page was originally published in the March 2000 issue of Los Angeles Lawyer.
On March 7, you will have an opportunity to make a difference in the lives of thousands of youths in this state. When you cast your vote on Proposition 21, the so-called Wilson Initiative, you will be leaving your imprint on the future of our juvenile justice system and the many youths it affects. Because we view this proposal as a misdirected approach to the problem of preventing and punishing juvenile crime, the Board of Trustees of the Los Angeles County Bar Association-a body of public and private attorneys representing divergent political and social viewpoints-voted unanimously to oppose Proposition 21.
In doing so, our Association joins a growing and diverse group of community and civil leaders, law enforcement and judicial officers, and participants in or members of the juvenile justice system who are on record opposing this proposal. These include the League of Women Voters of California, the Chief Probation Officers of California, the California Council of Churches, the California Parent & Teacher Association (PTA), the Los Angeles City Council, the San Francisco Board of Supervisors, the National Lawyers Guild, and the National Black Police Officers Association.
The Board of Trustees arrived at its decision after considering a thoughtful and detailed report prepared by a subcommittee of the Association's Juvenile Court Task Force, chaired by Russell T. Ginise and including Elizabeth Calciano, Paul Freese Jr., Thomas Higgins, Miriam Krinsky, Eric Middleton, Hon. Stephen Marcus, Jedediah Minoff, and Cynthia Rayvis. These individuals represent diverse backgrounds, consisting of district attorneys, public defenders, attorneys representing children in the foster care system, civil litigators, and public interest attorneys. The subcommittee members are to be commended for their considerable efforts in analyzing the initiative. In the end, they all agreed that this multifaceted proposition contains problematic provisions that would fundamentally affect the manner in which juvenile justice is administered in our state.
To put the discussion in context, please keep in mind that Proposition 21 must be taken as a whole. California voters must accept or reject it on an all-or-nothing basis, and it will be difficult to undo once passed. If the proposed statutory changes are enacted, they can be amended only by a two-thirds vote of the legislature or by another initiative.1 Thus, these provisions will not be subject to refinement and revision by the normal legislative process of majority vote. Practically speaking, this means that it will be impossible to carve out those portions of the initiative that are worth keeping and discard those that are inappropriate.
The Los Angeles County Bar Association has major and fundamental concerns with this proposal.
First, the premise underlying Proposition 21-that juvenile crime is increasing-is based on outdated statistics. Recent figures show that juvenile crime is, in fact, declining. The latest FBI data indicate that juvenile arrests for serious and violent crimes fell nearly 11 percent from 1997 to 1998. Statistics from the California Department of Justice similarly reflect that the rate of juvenile felony arrests has decreased more than 20 percent since 1991 and more than 28 percent since 1980.
Second, passage of the initiative would result in certain significant and troubling changes in the law. Chief among them is the erosion of our time-honored system of checks and balances. The initiative requires an inflexible mandatory prosecution of certain juvenile crimes in the adult criminal system at the expense of judicial and prosecutorial discretion. Specifically, for certain crimes Proposition 21 would mandate the direct filing of cases into the adult system, taking away discretion from both the judge and the prosecutor and thereby precluding any consideration of the individual circumstances of the case or background of the minor. The initiative similarly takes the authority to remand minors to the adult system out of the hands of judges and places it with prosecutors, tipping the balance away from the judiciary.
Next, the initiative erodes those laws designed to safeguard the confidentiality of a minor during all stages of the juvenile justice process. For example, juvenile delinquency courts would be required to post a daily list of hearings, all of which would be open to the public. Moreover, Proposition 21 would allow authorities to disclose the identity of any minor who has been arrested but who has not yet been adjudicated to have actually committed a serious felony.
Additionally, the initiative provides that prosecutors need only prove the vague standard of "active participation" to establish a new felony conspiracy conviction for membership in a criminal street gang and to significantly enhance sentencing for gang-related offenses. Provisions such as these, which focus on gang-related crimes, are overbroad and likely to punish minors whose relationships to gangs are tangential. It also requires these juveniles to "register" as gang members after a conviction.
The initiative also significantly broadens the ability of law enforcement officials to seek orders for wiretapping, potentially permitting a much greater invasion of privacy.
Remember, such wiretaps will inevitably implicate the privacy rights of other members of the juvenile's household. Currently, courts may only grant orders approving wiretapping when there is probable cause to believe an individual is committing a limited number of very serious felonies. The initiative would allow law enforcement to request a court order for wiretapping for relatively minor felonies as long as such suspected felonies are "gang-related."
Lastly, the initiative shifts the emphasis of juvenile justice away from prevention to punishment-and at a very high cost. Recent studies by the Rand Corporation have found that early prevention programs are more cost effective than punishment in reducing juvenile crime. Despite its use of the word "prevention" in its title, Proposition 21 does not provide for any allocation of funds for front-end prevention work and will instead shift funding away from prevention and rehabilitation efforts.
According to the Legislative Analyst's Office, this initiative will cost local governments tens of millions of dollars annually and cost the state government hundreds of millions of dollars annually. We recognize that punishment and community safety play a critical role in the juvenile justice system. However, by focusing exclusively on adding punitive measures, the initiative emphasizes penalties at the expense of successful rehabilitation and prevention models that may actually account for the current decrease in juvenile crime.
In sum, the Los Angeles County Bar Association Board of Trustees believes that Proposition 21 will have an adverse effect on our juvenile justice system and will impair the progress that has been made in recent years to lower youth crime. Legislation approved last year (SB 334) has already enacted many of the provisions proposed by Proposition 21. Approval of this measure would thus be redundant in some areas and excessive in others. The cost, in dollars and in fundamental changes to our system of justice, is simply not merited and, in light of current data, not necessary.
As lawyers, we understand that an effective and fair juvenile justice system is critical to the well-being of our society. Unfortunately, the problems of that system are often overlooked or ignored. Our youth are important and we need to invest in our juvenile justice system. I urge you to become informed about Proposition 21 and to express your own views, whatever they may be, by going to the polls on Tuesday, March 7. Remember, voting is a privilege and a responsibility.
1 Cal. Const. art. II, §10.