What is a 'violent crime'? For California's new parole law, the definition is murky— and it matters
By Jazmine Ulloa
Los Angeles Times
January 27, 2017
SACRAMENTO -- Andrew Luster, the great grandson of cosmetics magnate Max Factor, drew global attention in the early 2000s when, after being accused of rape, he jumped his $1-million bail and was later captured in Mexico by a bounty hunter on TV.
Ventura County prosecutors said he drugged three women and videotaped the assaults, and a jury convicted him of 86 counts of poisoning, sexual battery and rape of an unconscious or intoxicated person. But with none of his offenses listed among the 23 crimes that California considers “violent” felonies in its penal code, does the state consider him a violent felon?
As California undergoes the largest overhaul of prison parole in a generation, determining which criminals are violent in the eyes of the state has taken on a new urgency among some lawmakers and law enforcement officials who argue it’s time to revisit how “violent crime” is legally defined.
Gov. Jerry Brown’s Proposition 57, which voters overwhelmingly approved in November, continues a statewide effort to increase rehabilitation services and decrease the prison population. Among its provisions, the initiative will give new power to the state parole board to consider the early release of prisoners who have served the full term of their primary sentences, and whose crimes are not designated as “violent” under the California penal code.
But since the early days of the ballot measure campaign, debate has brewed over just who the law will benefit, with prosecutors arguing the state’s short and porous violent felony list could allow dangerous inmates like Luster to walk free. Now the debate has moved to the state Capitol, as some lawmakers hope to expand the number of the crimes outlined in the penal code.
State Sen. Patricia Bates (R-Laguna Niguel), who filed a bill to reclassify more than 20 offenses as violent felonies, said there must be a public discussion about the criminal charges she is proposing to add to the list, such as inflicting injury on a child or assaulting an officer with a deadly weapon.
“There are many of them that really need a second thought,” she said. “If you put yourself in the position of a victim in any one of those crimes, you will say, ‘That was violent because that affected me physically and emotionally.’”
Corrections officials have until October to develop the most controversial details of Proposition 57: a set of regulations to expand prison programs that offer incentives for good behavior and participation in rehabilitation, and that govern who is eligible for early parole and when.
In a budget proposal unveiled this month, Brown excluded all sex offenders from early parole consideration, whether their crimes were designated as “violent” or not. Law enforcement officials called it an appropriate response to concerns over cases such as Luster’s.
But lawmakers and prosecutors remain intent on expanding the violent felony list, saying sex offender exemptions from early parole eligibility can be challenged in court, while the violent felony penal code will still be used to determine — and limit — how much credit offenders receive for following the rules and attending counseling behind bars.
The violent felony penal code dates to 1976 and has been expanded over the years through piecemeal legislation and voter initiatives. It includes obvious violent crimes like murder and sexual abuse of a child. But it excludes others, such as some rape crimes and domestic violence.
Debate over the offenses on the list has occurred since its inception. Lawmakers “didn’t want to add everything conceivable,” said San Mateo Dist. Atty. Steve Wagstaffe, who helped negotiate the penal code 40 years ago. “There was lot of give and take in Sacramento.”
The latest major changes came in 2000, when a juvenile punishment ballot measure backed by district attorneys revised the list of crimes and made them count as “strikes” under the state’s three strikes law, subjecting defendants with previous violent or serious offenses to longer prison sentences.
That ballot measure, Proposition 21, also made it harder to change the violent felony penal code by requiring any bill seeking to do so to receive a two-thirds majority vote in each house.
But in recent years, bills seeking to add more crimes to the code have died at the Capitol, as California has grappled with prison overcrowding and with finding a permanent solution to a federal court-ordered cap on its inmate population.
That might change this legislative session, as the list “has taken on a whole new meaning under Prop. 57,” said Wagstaffe, president of the California District Attorneys Assn.
“It has a whole new purpose,” he said. “Now it will help determine whether you are eligible for early release, and that’s what is causing this new discussion.”
The most heated discussion has been over sex offenders. In August, Brown called out a Fresno County sheriff over what he termed a “malicious” campaign mailer for Proposition 57, which featured Luster’s case and claimed he would be eligible for early release.
Meanwhile, the case of former Stanford swimmer Brock Turner stirred worldwide rage over the loopholes in punishment for rape and sexual assault. At least three bills filed this session seek to expand the list of sex crimes in the violent felony penal code.
A bipartisan proposal filed by Assemblywomen Melissa Melendez (R-Lake Elsinore) and Lorena Gonzalez (D-San Diego) would add to the list all forms of rape, spousal rape, sodomy, oral copulation and sexual penetration committed against a victim incapable of consent, including those victims who are intoxicated or mentally ill.
Bates’ bill also would revise the list to include certain rape crimes and human trafficking involving minors, but also seeks to reclassify crimes including vehicular manslaughter, assault with a deadly weapon and solicitation of murder. Assemblyman Kevin Kiley (R-Roseville) would add child abduction for prostitution to the list in addition to crimes against the elderly and cruelty to animals.
“I think it is particularly important to do this now,” Kiley said. “The initiative passed, and its language suggested that it applies to only nonviolent offenders. But the people who have been convicted of the type of crimes in my bill would be considered nonviolent, even though common sense shows they are acting out violence against their victims.”
But not everyone is in support of expanding the list. Even when debate over the Turner case was at its peak last year, some groups abstained from taking sides on sexual assault legislation, saying tougher sentencing laws have historically taken a toll on communities of color.
Among those organizations remaining neutral on changing the penal code is the California Partnership to End Domestic Violence, which says it wants to hold offenders accountable, but has been taking a closer look at other forms of intervention and rehabilitation.
“We keep hearing from survivors that criminal legal sanctions are not necessarily what they want,” said Jacquie Marroquin, the organization’s director of programs. “They tell us: ‘We don’t want to break apart our families. We want the abuse to stop.’”
EDITOR’S NOTE: Rape, a violent crime? NYPD has classified rape as “Illegal Entry,” a non-violent misdemeanor.
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