Marin CountyCandidate for District Attorney

District Attorneys cannot equivocate on the number one issue in criminal justice reform: the death penalty. A District Attorney should not express a strong personal reservation or opposition to the death penalty while justifying the punishment as ‘unfortunately, the law’.

To imply that elected District Attorneys must passively ‘follow the law’ on the death penalty obscures the true discretion of District Attorneys in California. There is no law in California that requires a District Attorney to seek the death penalty. The death penalty is only available for first-degree murder convictions, where the prosecutor affirmatively requests findings of “special circumstances.” There is no law that requires a District Attorney to plead and request “special circumstances.” If “special circumstances” are filed, the District Attorney can inform the court that they won’t be seeking death, thus converting the maximum penalty to Life Without Parole (LWOP). In other words, a jury cannot impose the death penalty without express, intentional, and fully discretionary steps taken by the District Attorney. Phrases like ‘we must follow the law’ and ‘we will leave it to a jury’ shift responsibility for the imposition of the death penalty from the elected District Attorney, accountable to voters, to anonymous jurors.

One must wonder if a District Attorneys, publicly professing strong personal reservations about the death penalty, yet refusing to say they won’t seek it, equivocate for political reasons — catering to one segment of voters while fearful of alienating another. All sides of the electorate have a right to know what a District Attorney will do if elected. If you are personally opposed to the death penalty, but are willing to pursue it as an organization, you are effectively for the death penalty.

In addition, death penalty prosecutions require jurors who will carry out the potential punishment — in a capital case, those who steadfastly oppose the death penalty are excused from serving on the jury. In Marin County, this can mean hundreds, if not thousands, of people are summoned for jury duty, just to find 12 jurors who are able to serve and willing to impose the death penalty.

Being equivocal on the death penalty has significant immediate ramifications in a criminal prosecution. With the charge of “special circumstances” and a possible death penalty, a criminal defendant is entitled to not one, but two court-appointed attorneys, at the public’s expense. In Marin, we dedicate one to two of our top deputy district attorneys to work solely on each of these cases, monopolizing a tremendous percentage of our workforce, and forcing the reorganization of office personnel around each potential death penalty case.

Meanwhile, the court essentially schedules two trials – one for the factual determination of the murder, and another for the penalty phase. This penalty phase can be as long, if not longer, than the criminal trial as the defense presents mitigating factors to convince the jury to reject a death sentence. All these local costs occur before the endless appeals associated with the death penalty.

Even more than the financial costs, equivocating on the death penalty by ‘opposing it, except in the most egregious of situations’, contributes to an unarguable criticism of the death penalty – its arbitrariness.

When faced with a horrific crime, and every potential “special circumstances” case is a horrific crime, death penalty equivocation requires a District Attorney to rely on gut instinct about the victim, the defendant, and the facts of the case, when deciding if it’s ‘egregious enough’ to be worthy of the ultimate punishment. Over time, it is these gut-decisions that result in inconsistent, arbitrary and often racially-suspect outcomes about who will receive a death-eligible jury trial and who will have LWOP as their maximum punishment.

Many clamor for the mantle of “progressive prosecutor.” However, one cannot credibly claim to be a progressive prosecutor and equivocate on the death penalty, which has been the central point of reform agendas for decades. One cannot credibly talk about fiscal responsibility in the justice system and equivocate on the death penalty, which costs Californians an estimated $184 million annually, and an estimated $4 billion since 1978. And, one cannot credibly profess concern about equity in the justice system and be equivocal on the death penalty, which is disproportionately imposed on defendants of color.

This is not to minimize the most serious crimes worthy of a “special circumstance” designation. Multiple murders, murders committed by gangs, and yes, murders of children are undeniably heinous crimes and individuals convicted of them deserve to be punished. Pursuit of the death penalty in California is a gesture of consolation to victims’ families, a promise to pursue the harshest, most severe punishment as a measure of justice for their inconsolable loss.

However, it is time for District Attorneys to acknowledge that Life Without Parole is the harshest, most severe punishment that the state can credibly impose. Pursuit of the death penalty in California is a false promise to victims’ families that the punishment will occur and bring closure to their lives; and it’s an expensive, ineffective policy decision borne by taxpayers. In the last 40 years, there have been only 13 executions in California, and none in the past 12 years.

Marin County voters have spoken – twice showing their strong opposition to the death penalty and a desire to join 19 other states, the District of Columbia, and almost every other first-world country in opposing this practice. While the debate is often focused at the state and national levels, pursuit of the death penalty is fundamentally a local decision, reflecting local values and local criminal justice priorities. The death penalty can end, county by county, if voters elect District Attorneys who do not equivocate and commit to not seek the death penalty.

Unexpectedly, in progressive Marin County, California, I stand alone to unequivocally make this commitment.

A.J. Brady

www.ajbrady.com

The case for restorative justice is best exemplified in one of the more common crimes prosecutors face – residential burglary. Simply defined, it is the breaking into an inhabited dwelling with the intent to commit a felony, usually theft – in short, someone breaks into your house.

The impact on a victim of a residential burglary is incredibly complex. Nearly uniformly, victims feel a loss of security — someone has been in their home. This initial insecurity grows over time – they wonder, Were we targeted? How did the thieves know when we weren’t going to be home? They must have watched us; and if they were watching then, are they watching now? Will they come back? All of these thoughts lead to a perpetual fear of being retargeted.

The current criminal justice system does not alleviate these feelings. Once arrested, a defendant is afforded a defense attorney at public expense. Victims often ask, Why don’t I receive a paid attorney? The defense attorney can make a vigorous defense case by hiring investigators to talk to witnesses, visit the crime scene or subpoena the victim, often resulting in victims feeling re-victimized by the defense attorney and investigator. If a conviction is obtained and sentencing proceeds, the victim may choose to make an impact statement, but because defendants are advised to keep their eyes forward, the victim’s statement is addressed to the back of the defendant’s head.

On numerous occasions, I have had victims ask me something along the lines of, When do I get in the room with that ‘whipper-snapper’? and for years I’ve had to respond … We don’t do that.

Seeing this void of disconnect between the crime and the victim’s desire to meet face-to-face with the offender is what led to my interest and research in Restorative Justice. At its core, Restorative Justice is a mindset that seeks to define a harm or problem, determine the cause, and repair the damage done to the victim or community. Often in Restorative Justice programs, victims and offenders participate in a victim-offender dialogue – a facilitated meeting where victims attempt to understand why a crime happened and offenders attempt to understand how the crime impacted the victim and potentially, the broader community. At the conclusion, the victim, offender, and community members may reach an agreement as to how an offender can potentially repair the damage caused by their crime.

Restorative Justice is broadly used in our school systems as an alternative to suspension and expulsions; and in the juvenile delinquency system, as an alternative approach to youthful offenses. However, in the American adult court system its use is rare. In comparison, Restorative Justice programs are widely used in Canada, the UK, Germany, and New Zealand, and have been the subject of research to measure the efficacy of restorative justice versus solely traditional justice approaches.

Broadly speaking, researchers studied three main areas of potential impact: recidivism, satisfaction with the justice system, and effect on restitution. They found that compared to a solely traditional justice approach, the use of restorative justice lowered recidivism, uniformly increased victims’ feelings of satisfaction with the overall justice system and increased the likelihood that a defendant will pay restitution.

In 2015, I partnered with the Marin County Probation Department to bring restorative justice to the Marin County adult court system. Through this partnership, the Probation Department started offering restorative justice in post-judgment probation cases and the District Attorney’s office created a misdemeanor diversion program. This pilot program is still in its infancy, but the results are encouraging. Recently, upon learning of a defendant’s background during a face-to-face meeting, a victim agreed to forgive a large 5-figure restitution after the defendant completed substance abuse treatment. To this victim, assurances about future harm were more important than the monetary loss.

So where does Marin County go from here? If we accept the ample evidence that restorative justice can provide victims with a greater sense of satisfaction and that offenders are more invested and accountable through this process, then the answer is felonies.

In Canada, restorative justice exists as a parallel sentencing process. If a person is convicted, the case is referred to both a traditional probation department for a pre-sentence report and a Restorative Justice coordinator for recommendations to the Judge. The Restorative Justice coordinator determines if the victim and offender wish to engage in a restorative process. If the victim and offender meet, and reach an agreement, those non-binding terms, along with a probation department report detailing the background and prospects of the defendant, are forwarded to the Judge for consideration at sentencing.

Such a process is remarkably more informed than current felony sentencing in the United States. Unfortunately, in an attempt to determine whether a defendant is remorseful, Judicial officers and District Attorneys often grasp at sentences from a probation report or rely on in-court demeanor. With an additional restorative report that includes input from the victim, a Judicial officer can be confident that the victim has been heard. While parties must argue for their clients’ best interests, and the Judge has a duty to ensure some level of consistency in sentencing, restorative sentencing reports reflect a confident justice system, and one that is responsive to the persons most profoundly affected by the results.

This face-to-face accountability is what our modern criminal justice system lacks. It is only the ‘whipper-snappers’ who can truly alleviate burglary victims’ feelings of insecurity. Only the ‘whipper-snappers’ can tell the victim that they were not targeted, that the neighborhood was chosen because it was affluent and had a pattern of leaving doors or windows open. Only the ‘whipper-snapper’ can explain that no one was watching the victim, they walked up and down the street, ringing doorbells until they found one where no one was home and then tried the door or a rear slider. Lastly, only the ‘whipper-snapper’ themselves can truly explain to a victim that they are more than a ‘whipper snapper’, that they are a complicated individual, perhaps down on their luck or struggling with sobriety, and that they are deeply remorseful for all the pain they have caused.

In future years, Restorative Justice should play an even larger role in our criminal justice system. Marin County can better serve its communities by providing peace of mind to victims while reducing recidivism through a robust criminal justice system that embraces restorative justice and provides progressive public safety consistent with our local values.

A.J. Brady

www.ajbrady.com