Defining “Violent”

One would not think that defining “violent crime” is all that difficult. Yet in both federal law and California law, there are definitions of “violent” that are excessively narrow, excluding crimes that everyone with sense would consider violent. Dan Walters has this column at CalMatters, titled “California law treats some violent crimes as nonviolent, letting offenders off the hook.” He has an extended quote from this column by Emily Hoeven at the SF Chronicle (behind a paywall).

From Walters’ column:

Hoeven noted that earlier this year, the Assembly’s (perhaps misnamed) Public Safety Committee rejected a Republican bill to classify domestic violence as a violent crime, thereby making it easier to keep offenders behind bars.

This outrageous situation results from a 2016 ballot measure, sponsored principally by then-Gov. Jerry Brown and passed by voters, that purported to give those who commit nonviolent crimes chances to earn their way out of prison.

However, it was deceptive. Proposition 57’s indirect definition of a nonviolent crime was that it did not appear on a specific Penal Code list of 23 violent crimes.

That list only referred to particularly heinous crimes and omitted many offenses that ordinary folks would consider violent, including some forms of rape and domestic violence. The result is that those who commit some unspeakable crimes, including battering one’s spouse, are given kid gloves treatment in the penal system.

How did the definition get so screwed up? The problem in California is, in substantial part, the result of lazy drafting. (The federal problem is a topic for another post.)

As Justice Holmes famously said, “Upon this point a page of history is worth a volume of logic.”

Before 1976, California sentencing law provided that for most felonies the judge would sentence the defendant to an indeterminate term (e.g., X-to-life), and then the frequently renamed parole authority would decide when to let him out. There were problems with this approach. People who committed similar crimes with similar records could get wildly different times in prison in the unlimited discretion of the parole board. That was unjust and sometimes unconstitutional, and there were suspicions it was applied in a discriminatory manner. Further, the boundless faith in the “experts” underlying this approach was unjustified, as the parole board really did not know who would go straight and who would commit new crimes.

So in the bicentennial year, the Legislature passed a massive bill called the Uniform Determinate Sentencing Act of 1976, and it was signed by the state’s young governor, Jerry Brown.

Under the DSL, time in prison was the sentence imposed after the trial minus credits earned in prison, specified by statutes. Discretionary parole was limited to very few crimes. To this day, the bulk of the “indeterminate sentence” prisoners are in for murder.

Most felonies had three possible base terms, and the judge had discretion to choose among them. Added on to the base term were enhancements to differentiate people who commit the same basic crime with different levels of culpability. Some related to the crime itself, such as an enhancement for causing great bodily injury to the victim when that was not an element of the base offense. Another enhancement related to the defendant’s criminal history. Section 667.5 added enhancements for the “frequent flyers” of the California penal system, those who committed new felonies after release from a prior prison term. Many enhancements have been added since.

The 667.5 enhancement was one year in most cases (subdivision (b)), but in subdivision (a) a longer three-year enhancement was imposed “Where the new offense is one of the violent felonies specified in subdivision (c)” and also “the prior was one of the violent felonies specified in subdivision (c).” So far so good. The longer enhancement was not for all violent felonies but only those from a specified list thought to warrant the extra time.

But then the drafters got a bit lazy. Subdivision (c) might have begun “The violent felonies to which subdivision (a) applies are …” But it didn’t. It began “For the purpose of this section ‘violent felony’ shall mean ….”

This is a common but problematic technique in drafting statutes. Take a common word and give it a specialized definition for the limited purpose of a specific law. The problem is that the specialized definition may bleed over to other applications which ought not be so limited.

That is exactly what happened. In 1982, an initiative added an enhancement for prior convictions, as opposed to prior prison terms. It made sense to use the same list of violent felonies, but the drafters adopted the restricted, artificial definition of “violent felony” from section 667.5 rather than specifying the eligible offenses without using that technique.

In 1994, the Legislature put a cap on the credits that violent felons could get for working (or subsequently just behaving). Instead of defining violent felony in a way appropriate for this purpose, the lazy drafter just adopted the artificially constricted 667.5(c) definition. (PC § 2933.1(a).) The same year, the drafters of both versions of the Three Strikes Law did the same. (PC §§ 667(d)(1), 1170.12(b)(1).) A good case can be made that Three Strikes should have a restricted range, but its simple adoption of the 667.5(c) definition further cemented that notion that this is a overall definition of “violent felony” for California law.

Fast forward to 2016. California’s aged Governor Jerry Brown concluded that young Governor Jerry Brown had erred badly in signing the DSL four decades earlier. He grafted a constitutional amendment onto an unrelated initiative about juvenile justice. Then with a big pot of money from malanthropist George Soros, he sold it to the people of California with promises that its purpose was to release harmless non-violent offenders for the purpose of freeing up prison space to ensure that the dangerous ones were locked up, not released by a federal court order.

Here is a portion of Brown’s rebuttal to the ballot argument against Proposition 57:

Don’t be misled by false attacks. Prop. 57:
• Does NOT automatically release anyone from prison. • Does NOT authorize parole for violent offenders. The California Supreme Court clearly stated that parole eligibility under Prop. 57 applies, “only to prisoners convicted of non-violent felonies.” (Brown v. Superior Court, June 6, 2016). Violent criminals as defined in Penal Code 667.5(c) are excluded from parole. • Does NOT and will not change the federal court order that excludes sex offenders, as defined in Penal Code 290, from parole. • Does NOT diminish victims’ rights. • Does NOT prevent judges from issuing tough sentences.

Got that? Non-violent only, not for violent offenders, complete with italics and all caps. The catch is “as defined in Penal Code 667.5(c).” The section that Prop. 57 added to the Constitution does not expressly incorporate that definition, but by slipping it into the equivalent of legislative history Brown expanded the benefits of his initiative to a great many felons who had committed a great many crimes that most people would consider violent. He did it in a way that few people would understand. Outspent ten-to-one, the underfunded opposition campaign was unable to educate the people as to what was really happening.

Proposition 57 was sloppily drafted even by the low standards of initiatives, as Justice Ming Chin noted in his dissent from the decision that allowed it on the ballot. The constitutional amendment is section 32 of article I of the California Constitution, bizarrely misplaced in the Declaration of Rights article.

The new section provides, among other things, that “any person convicted of a nonviolent felony offense and sentenced to state prison” is eligible for parole after completing only the base sentence for his primary offense, not counting enhancements or consecutive sentences for other crimes. Crimes are cheaper by the dozen. This provision intentionally blew a big hole in the “determinate” part of the Determinate Sentencing Law, but Brown et al. emphatically promised the people that it was not for violent offenders.

Which gets us back to definition of “violent.” The section also authorizes the California Department of Corrections and Rehabilitation to implement it by regulations. Sure enough CDCR (under a secretary appointed by Jerry Brown) did so in April 2017 with a regulation that defined “violent felony” as only the artificially restricted list in PC § 667.5(c). (15 CCR § 3490(c).)

The catalog of violent crimes not on that list is staggering. Drive-by shooting, assault with a deadly weapon, hostage taking, and domestic violence involving trauma are not on the list, to name a few.

Human trafficking is not a “violent felony” by this definition. That’s right, outright slavery in the 21st century is neither “violent” nor “serious.” A bill to make it “serious,” but not “violent,” was introduced this year, but to get it out of the Senate it had to be watered down to enslavement of minors only. Sorry, adult slaves, your enslavement is not serious, the California Legislature says. Passage in the Assembly of even the watered down version is pending as of this writing.

As noted at the beginning of the post, Emily Hoeven makes a case for amending 667.5(c) to include domestic violence in SF Chron articles here and here. Dan Walters concludes his column with this observation:

Last year, for while running for a full term as attorney general, Rob Bonta declared that the state’s list of violent crimes should be expanded. Having been safely elected, however, he has not lifted a finger to make it happen.

Why is there so much resistance?

A big part of the problem, in my view, is the use of a single list of felonies for several different purposes. The original list was not intended to be a true definition of the term “violent felony” but only a list of felonies that triggered a longer enhancement. Expanding that single list simultaneously expands the prior prison term enhancement, the prior conviction enhancement, and the Three Strikes Law, while reducing the number of prisoners eligible for Proposition 57’s new kind of parole and those who receive the full one-for-one credits for good behavior.

It is the Three Strikes aspect that drives the pro-prisoner crowd into a blind rage. They are so vehement about opposing any expansion of Three Strikes that they are driven to endorse absurdities such as saying that domestic violence is not violent and slavery is not serious.

Ideally, “violent crime” should be defined to include all crimes involving physical injury, assault, restraint, or sex acts with people who do not consent or are not capable of valid consent. The definition should include conspiracies and attempts to commit violent crimes. A “violent felony” is any violent crime which is a felony. Anyone whose present prison commitment includes a violent felony should be ineligible for Proposition 57’s parole and should be limited to 15% maximum prison credits (unless subject to a more severe cap, such as the 0% for murderers). The sentence enhancement statutes, including Three Strikes, should define the felonies that trigger them independently of the “violent felony” definition.

But there is a problem. Three Strikes is an initiative and cannot be amended by the Legislature without a 2/3 vote or approval by the people. Proposition 57 is a constitutional amendment. Parole policy has no business being in the Constitution, and especially not the Declaration of Rights, but moving it to a statute where it belongs and fixing its problems requires another constitutional amendment. That requires a vote of the people triggered by either a 2/3 vote of the Legislature or a petition with a staggering number of signatures.

The optimum solution is clear, but it is not easy.