President Trump announced on Wednesday, April 4th that he planned to deploy the National Guard to patrol the U.S. – Mexican border to prevent illegal immigration. California Governor Jerry Brown, who is in charge of overseeing the deployment of National Guard troops in California, agreed to cooperate.

But why the request from the Trump administration to increase the number of troops on the border? The number of apprehensions at the U.S. border is at the lowest it has been in over 17 years. The Trump Administration believes that this number will increase in the future. Further, former Presidents George W. Bush and Obama both deployed troops to the border to enforce immigration, but at varied amounts of personnel, with the overall number of agents increasing dramatically since 1995.

The Trump Administration did not initially release any specifics about the number of troops, deployment times, or costs with Homeland Security Secretary Kirstjen Nielsen stating, “I don’t want to get ahead of the governors. This is a partnership with them.”

California has 55 border patrol officers assisting in the prevention of illegal drugs and Governor Brown on Wednesday April 10th, announced that he would send an additional 400 National Guard members to patrol the border in response to President Trump’s announcement.

However, Governor Brown wrote in a letter to Homeland Security Secretary Kirstjen Nielsen and Defense Secretary James N. Mattis. “This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life. And the California National Guard will not be enforcing federal immigration laws… Here are the facts: there is no massive wave of immigrants pouring into California. Overall immigration apprehensions on the border last year were as low as they’ve been in nearly 50 years (and 85 percent of the apprehensions occurred outside of California).”

President Trump himself tweeted: “California Governor Jerry Brown is doing the right thing and sending the National Guard to the Border. Thank you Jerry, good move for the safety of our Country!” Early Tuesday April 17th, President Trump changed his tune and criticized Governor Brown’s handling of the situation.

When asked about the disagreement, Governor Brown commented “Trying to stop drug smuggling, human trafficking and guns going to Mexico, to the cartels, that sounds to me like fighting crime. Trying to catch some desperate mothers and children or unaccompanied minors coming from Central America, that sounds like something else.” However, he announced that they were very close to an agreement about the National Guard troops to be sent.

The Many Roles of Your District Attorney

On today’s episode I sat down to speak with Ana Zamora. She’s the Criminal Justice Policy Director for the ACLU of Northern California and she is running their Meet Your DA campaign here in California. This is a slightly different take on our Policy Change in that instead of discussing the process of changing public policy, we discuss the process of implementing – or not implementing in some cases – a recently changed policy.

Meet Your DA is a slightly different kind of campaign. It’s not directly trying to elect particular candidates to District Attorneys’ offices across California. Rather, the campaign is focused on helping people get to know who their local District Attorney is, and highlight some of the positions those DA’s have taken on recent criminal justice reform ballot measures.

Ana and I also discuss the power and influence that a District Attorney has in local law enforcement and how that influence plays out in the criminal justice and prison systems in California.

We also dive into the different roles that a District Attorney plays. The most obvious is the role of prosecutor and representative of the people in court. But getting back to the Meet Your DA campaign, we also talk about District Attorney’s role as a policy implementer and how embrace, or not embrace, recent criminal justice reform measures that have been passed by California’s voters via the initiative process.

 

 

 

Policy Analysis in the Legislative Process

Today’s post is on policy analysis in the legislative process. Specifically, we’ll be exploring differences between the policy analysis process used in the California Legislature and the processes used in academia and elsewhere.

For anyone who has seen a bill introduced in the California Legislature that’s in print, one of the first items you see is a section titled The Legislative Counsel’s Digest. Is this actually an analysis of the bill? Not really. Instead, the purpose of the Legislative Counsel’s Digest is to succinctly describe what current law is, and then summarize the changes that are proposed in the bill.

Legislative proposals in California are analyzed by the staff of committees to which they are referred, as well as by the staff of the respective houses prior to a proposal coming up for a floor vote. As a result, a typical bill that makes it into law is analyzed as many as six times – by a policy committee in each house, by a fiscal committee in each house, and on the floor of each house.

In the California Legislature there’s no fixed policy analysis methodology, but there is one commonality that differentiates the policy analysis process in the Legislature from the process used in academia and elsewhere.  In the California Legislature, we find that policy analysis is generally focused on the evaluation of a specific proposal. In other words, rather than beginning the analysis with the definition of the problem, the analysis emanates from a proposed solution that is proposed in the bill.

The policy analysis methodologies that are taught in academia and used in other sectors tend to start from the definition of the problem and once the public policy problem is defined, then the analysis turns to identifying and evaluating various alternatives to address that stated problem. This policy analysis is usually a rigorous, multi-step process that involves a thorough analysis of the various alternative means of addressing the public policy problem.

While there are some practical realities that make it difficult, if not impossible, for legislative bodies and legislative staff to apply traditional policy analysis on each and every bill, this does not mean that traditional policy analysis cannot be infused into at least a portion of the legislative process. I explore some potential ways the California Legislature could do so in the podcast.

I think the legislative process would be better served in the long-term by providing greater policy analysis of both the problems and solutions being debated by members of the Legislature.

 

 

 

How to Start a Non-Profit

I sat down with McGeorge alum Aaron Brieno (’14) to talk about his new non-profit community based organization, Inspire California. Inspire California, to put it briefly, exists to help create and foster and college-ready and college going among high school aged students in the Central Valley, and in particular, the area of the Central Valley that Aaron is from, Hanford.

The quick background as to why Aaron decided to start this organization is that he read in his local newspaper one day in 2014, that the Central Valley had made a list of the top ten least educated regions in the country. Given all the different that California is a leader in, it was stunning to learn that any region in California would make that list.

So he decided to do something about it. At first, he thought it was a task he could tackle on his own. Aaron soon realized this would be an endeavor that would require more resources than he alone could muster.

You’ll need to listen to the podcast for most of the details on what resources you need and how to use them to get from idea to an established and operating organization. But the short answer for those looking for the short answer on resources, Aaron’s go to’s were: Nolo’s How to Start a Non-Profit in California, Google, the California Secretary of State’s website, and the California Association of Nonprofits’ website.

So, how does Inspire California achieve its mission? Thanks to a lot of legwork on Aaron’s part, Inspire California connects high school students in the Central Valley with college educated young professionals who are from the Central Valley. Those young professionals serve as mentors to these students, covering all the bases from taking phone calls to talk to proofreading college essays and personal statements.

There’s a lot more than Aaron and I cover in our conversation, and I hope you take the time to give it a listen and enjoy.

 

 

 

A first response to reports that California taxpayers have paid roughly $25 million in the last three years to settle sexual harassment-related cases is outrage. A closer look reveals a more complex picture. LAPD paid, on average, $30 million annually from 2012-2014 to resolve legal claims involving officers’ conduct. Since 2006, CHP has paid over $25 million in similar claims. Undoubtedly, California taxpayers pay far more than these amounts to resolve claims of negligence and misconduct by state employees. Taxpayer funded sexual harassment settlements aren’t anomalies; they’re part of a broader structure where the state, as employer, pays for injuries caused by employee actions.

Why does the law make employers pay for bad acts by their employees? One reason is that employers direct and control their employees’ actions, making them partially responsible for employee actions within their job’s scope. When employers have to pay out money for employees’ bad behavior they should be motivated to make the appropriate changes.

Another reason is that the purpose of civil damages judgments is to compensate victims – not punish perpetrators. Employers are in a better position to buy insurance or accumulate enough funds to pay for injuries.

What about employees who’ve engaged in egregious behavior? Shouldn’t they be punished by paying? In civil suits, juries may award punitive damages to punish an employee who’s found to have acted in a way that’s more blameworthy than workplace negligence or misconduct (acting with oppression, fraud, or malice); generally the employee, rather than the employer, pays. If the employee’s conduct is criminal, then they may be charged and, if convicted, punished with fines or imprisonment.

Back to sexual harassment…isn’t that bad enough that the perpetrator, rather than taxpayers, should pay? Again, a closer look reveals that it’s more complicated than it seems. For one, sexual harassment settlements are just that – settlements. They’re not adjudicated liability.  Even if we’re talking about sexual harassment judgments, the reasons mentioned above still apply.

Additionally, and importantly, another consideration is the impact that an “employee pays” rule would have on state employees doing their jobs, interacting with other employees and members of the public every day.  We want to deter bad behavior but we don’t want to “over-deter” it with a rule that makes employees frightened to act because if they – maybe – cross a line, or someone claims they did, they’ll be paying for a lawyer and a judgment, if it comes in. UCLA Law School Professor Johanna C. Schwartz, who conducted the aforementioned study of police department payouts, concludes that in most instances the departments, rather than the officers, should pay for misconduct claims because requiring officers to pay would result in this type of over-deterrence. She recommends transparency of payouts, and making the departments pay from their budgets rather than charging the taxpayers from the general fund..

Another note on “over-deterrence” comes from the Constitution. The Constitution provides the President absolute immunity from lawsuits for damages arising from his actions as President.  These lawsuits include claims by an employee of sexual harassment. The Supreme Court has also interpreted the Constitution to give different levels of immunity to different types of government officials. In doing so, the Court explains the Constitution creates “breathing room” around the actions of government officials, shielding them from paying damages even when conduct violates the law:

Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.”

Most state employees are not government officials entitled to constitutional immunity. Even state government officials entitled to immunity may lose it if their actions violate clearly established law. Nevertheless, the over-deterrence concern runs through legal and policy judgments about who should pay for employee misconduct and explains why often, when the employer is the state, the taxpayers pay.

 

 

 

The Partnership, the brain trust, and the activists working to end domestic violence

This week, I’m posting another conversation I had with Erin Scott – Board Chair of the California Partnership to End Domestic Violence. As we allude to in our conversation, she is also the Executive Director of the Family Violence Law Center, which is based in Oakland, CA.

Today’s conversation is related to last week’s chat that I had with Erin about The Partnership’s effort to double funding for domestic violence, which would allow for more prevention efforts in California. It’s also a follow up to the conversation we had a while back with Beth Hassett, the CEO and Executive Director of WEAVE, and the work that they do with coalitions, including The Partnership. We talked, in a broad sense, about the work The Partnership does to achieve its vision of “a California free of domestic violence.”

In addition to the coalition work that The Partnership does with its members all across California, they lean on and assist other ally organizations that don’t necessarily work on domestic violence issues but do work on issues that overlap with domestic violence like sexual assault, immigration, employment law, economic security, and many other issues. When thinking about useful tools to change public policy with, a brain trust of other experts that know the issues that overlap with yours inside and out is a very good tool to have.

The other thing that stands out to me about how The Partnership works is that their approach to public policy is designed to minimize unintended negative consequences of policies aimed at eradicating domestic violence. The process by which The Partnership does this is by pulling in input from their members all over California, which helps ensure that its policy decisions don’t inadvertently hurt some of its members. Erin said it better than I did,

One of the great things about that amount of input is … my agency is in Oakland, and something that might be very beneficial to my agency in Oakland might have a negative impact in a rural area that I might not think of if it was just me on the phone giving that input to The Partnership.”

It’s this balancing act that The Partnership pulls off – balancing the need and conditions of its member agencies and the domestic violence survivors that they serve – between the urban and rural parts of the state that I find special.

To learn more about CPEDV, please visit their website and specifically, their page on their policy priorities.

To keep up to date with the work The Partnership is doing, you can check out their page on Facebook and you can follow them on Twitter, @cpedvcoalition.

You can also follow Erin’s organization on Facebook and Twitter, @FamilyVLC.

By: Mike Vitiello

What Rescinding the Cole Memo Means

All use, possession, or sale of marijuana violates federal law. So, why did states like Colorado, Washington, and now California believe that they could legalize marijuana for recreational use?

In 2013, after Colorado and Washington legalized recreational marijuana, James Cole, an attorney in the United States Department of Justice, issued a memo stating the federal government’s policy concerning states’ efforts to legalize recreational marijuana. That position was that as long as states followed certain guidelines, like keeping marijuana out of the hands of minors and keeping drug cartels out of the business, the federal government would let states regulate as they saw fit. That memo, known as the Cole Memo, along with a similar memo in 2009 relating to medical marijuana, encouraged investors, who are now pumping billions of dollars into marijuana businesses.

In 2016, candidate Trump seemed to take a similar position, allowing states to regulate as they see fit. But, he chose Jeff Sessions as his Attorney General, and Sessions has a long history of opposing marijuana. After a year of the Department of Justice sending uncertain signals about the federal government’s position on state regulation of marijuana, the Attorney General announced that he is rescinding the Cole Memo. What does this mean?

It means that US Attorneys can resume enforcing federal marijuana laws in states with legalized recreational marijuana. The Department of Justice has significant tools to use if it chooses to use them, including criminal prosecutions that could lead to long prison terms, and forfeiture that would allow the government to seize assets of marijuana industry members. That said, the Department of Justice has other more important priorities, including immigration and the opioid epidemic.

Further, Attorney General Sessions’ actions may actually help supporters of legalizing marijuana. Democratic members of Congress, especially those from states that have legalized recreational marijuana, oppose Sessions’ action. But a number of Republicans have seemingly been galvanized by this as well, including Iowa Congressman Rod Blum and Colorado Senator Cory Gardner. In what I think is a sea change, we’re seeing many members of Congress speak out in favor of the Cole Memo, when until now, no member of Congress had done so.

My own prediction is that the industry is already too big to fail, and investors have political clout. Their money, and the money in the industry isn’t red money or blue money, it’s green money, and as we all know, money talks.

If you’d like to learn more about the marijuana industry in California, and particularly, if you are interested in joining the cannabis industry in California, I recommend that you attend the McGeorge Capital Center for Law & Policy’s upcoming Executive Training on The Essentials for Cannabis Businesses, which I will be presenting at. You can purchase tickets here.

The Partnership’s Push to Increase State Funding to Prevent Domestic Violence

As a heads up, this podcast was recorded early last week, before Governor Brown revealed his January budget proposal. Some of the conversation is dated in that regard, now that this post is going up after the budget proposal was revealed. That aside, the conversation I had with Erin Scott – Board Chair, California Partnership to End Domestic Violence (The Partnership) – is still very much relevant.

Erin Scott – Board Chair, California Partnership to End Domestic Violence – sitting down with Jon Wainwright at The Partnership’s office in Sacramento.

Funding for domestic violence work in California has remained steady for the past few years at roughly $20.6 million annually. That funding comes out of the General Fund. and covers emergency response for domestic violence survivors and has become a part of California’ social safety net. It’s essential funding, but there’s more that could be done. Put another way, current funding only allows nonprofit organizations that serve domestic violence survivors to react to the problem of domestic violence. The Partnership is leading a push this year to double the amount of money in the General Fund being spent on domestic violence work with the new $20.6 million being spent on domestic violence prevention and addressing the longer term root causes of the issue.

As I mentioned before, our conversation was recorded before the budget proposal was revealed. Since then, the Governor’s budget proposal has been revealed, and the state’s investment in domestic violence crisis services remained steady at $20.6 million. In a statement following the announcement of the budget proposal Kathy Moore, Executive Director for The Partnership said,

We appreciate the state’s consistent investment … over the last 10 years,  but it’s simply not enough. […] On any given day, about half of the 5,410 domestic violence victims being served in California access emergency shelter, while the other half receive non-residential services – things like legal assistance, children’s counseling and other complimentary services. Yet average data also shows there are over 1,086 unmet requests for services every day. Continuing to band-aid these families crises with inadequate resources isn’t the solution. Victims are telling us they need more.

No budget fight in the California Legislature is easy. The level of difficulty is only exacerbated when an organization is fighting for General Fund dollars – of which a minimum of 40% are already constitutionally earmarked for K-12 education. We said in the podcast that the funds The Partnership is going for comes out of one pot. It’s more like the funds are coming from half a pot, and there are numerous other groups angling for those same dollars. While Erin noted that “it’s never the perfect time for this kind of request,” I see a couple trends that point towards this being a good year to make the ask to double the funding for domestic violence work.

The first of those is the windfall – or surplus as some others are calling it – in this year’s state budget. It’s easier to ask for more funding in a year when there is more money available to the state to spend. The other trend that could help The Partnership is the #WeSaidEnough movement that has taken the California legislature by storm. While the issues of domestic violence and sexual harassment and assault in the workplace are most certainly not the same, my feeling is that the return to focusing on victims, and victims’ rights, and getting those victims the help that they need puts the political winds in a more favorable position for The Partnership in their effort to get the funding that agencies across California to start being more proactive, start addressing the long term root causes of domestic violence, and, hopefully, start reducing domestic violence in California.

Liah Burnley – Policy Advocate, Californians for Safety and Justice

 

 

 

 

 

 

 

 

Informing Criminal Justice Reform Policies by Engaging with Crime Survivors and the Formerly Incarcerated

I recently spoke with Liah Burnley, who is a Policy Advocate for Californians for Safety and Justice (CSJ), about the history of and work that CSJ does. CSJ works on criminal justice reform issues, with a particular focus on reducing wasteful spending in California’s justice system and breaking the cycle of crime by promoting policies and spending that help create safe communities and safe neighborhoods.

But what I found particularly interesting in our conversation was how CSJ informs itself before making decisions on various policies. There are two main groups that CSJ works with to get this information, crime survivors and the formerly incarcerated. It should be pointed out that – at least according to CSJ – a crime survivor is not the same as a crime victim. Crime survivors are those who are impacted by crime. Does that include victims of crime? Absolutely. But survivors also include the family and neighbors of those victims. If you think of water dropping, the crime is the drop and all the ripples that come from that drop are the impacted survivors.

The sense that I had after talking with Liah is that this second group, the formerly incarcerated, are really at the core of what CSJ works on. CSJ got started, and made a name for itself, by working on Prop 47 implementation. In doing so, they learned about multiple other inefficiencies in California’s criminal justice system and expanded their work accordingly so that, as Liah put it, when people are out there trying to pull themselves up by their bootstraps that “those bootstraps are actually there.”

There was one other thing that Liah shared with me that stuck. It’s something that she lives by and seems to encapsulate the criminal justice reform movement, “each of us is worth more than the worst thing that we’ve ever done.” I think that in the majority of cases, that mantra holds true.

If you want to learn more about Californians for Safety and Justice, feel free to check out their website safeandjust.org. You can also Like Californians for Safety and Justice on Facebook follow them on Twitter @safeandjust.

Using Amicus Curiae Briefs to Influence Judicial Decisions

I sat down with Brian Landsberg – Professor of Law at McGeorge School of Law – recently to talk about the work of an organization that he is a member of. That organization is the Lawyers’ Committee on Civil Rights, of which, Professor Landsberg is a member of the Board of Trustees and the Chair of the Amicus Section. We talked about the history of the 50+ year old organization and how their work has evolved over that time.

The Lawyers’ Committee was founded by leaders of the American Bar Association in 1963 after meeting with President Kennedy, who was concerned that there were now lawyers representing civil rights demonstrators in the Deep South. At the urging of the President, those leaders formed the Lawyers’ Committee to, basically, provide pro bono representation for African Americans in South during that time.

Members of the American Bar Association meeting with President John F. Kennedy

The work of the Lawyers’ Committee has since evolved to cover voter protection activities, equal education, fair employment, fair housing, and racial justice in the criminal justice system. The Amicus Committee, which Prof. Landsberg chairs, advances the Lawyers’ Committee’s interests through the filing of Amicus briefs with the United States Supreme Court. The cases that they file on aren’t necessarily all race discrimination cases, but include sex discrimination and religious discrimination as well.