Law and reorder: Why next June’s Sacramento district attorney race is crucial

Next June, Sacramento will possibly elect its first new district attorney in two decades. Choosing a DA isn't “sexy,” like voting for a mayor. But the DA's impact arguably can be as far-reaching. And the current DA race is about more than just deciding who's tough enough to put the most bad guys behind bars. This is especially true today, because the world of criminal justice is experiencing a radical sea change.

Riding that wave is DA candidate Maggy Krell.

Krell is a Democrat who's corralled all the big party support while working under Kamala Harris as deputy attorney general. Her ideas speak to this shift; she says that we can't keep incarcerating people who'd be better served in community corrections and treatment programs.

“I disagree with the argument that we can't afford rehabilitation,” says Krell. “What we can't afford is continued mass incarceration.”

After decades of drug wars and unprecedented prison empire building, leaders in Washington agree.

The Supreme Court has told California that its prisons are criminally overcrowded. This fall, Attorney General Eric Holder surprised everyone by announcing that states have to stop prosecuting nondangerous drug offenders. Recent reports by Stanford University and The California Endowment show that growing prisons doesn’t make streets safer. In fact, it does the opposite.

Here in Sacramento, freshly appointed crusaders such as Sacramento County Sheriff’s Department Capt. Milo Fitch and Probation Chief Lee Seale are working to address the root causes of criminality and help people so that they don’t reoffend. They get that the status quo isn’t working.

It’s a huge departure from the lock-’em-up-throw-away-the-key ethos that’s dominated Sacramento law and order for generations.

Still, there are powerful opposing forces.

District Attorney Jan Scully, who’s stepping down after 20 years, and her chosen successor, candidate Anne Marie Schubert, continue to oblige hard-line, Republican policies at the DA’s office. Some local attorneys call their regime “unreasonable,” unwilling to adapt and stuck in an antiquated world of “rigid policy rules.”

Twenty years is a long time for voters not to think about these issues. That’s why next June’s vote could be the most crucial in Sacramento so far this millennium.

The cold of fall has arrived this Wednesday evening in November. Krell sneaks into a downtown coffeehouse, orders a cup of black (at 4 in the afternoon), then laughs about her crazy-hectic work schedule. Last night, she was at a white-collar crime event in Los Angeles. Later today, she has yet another meeting. Make that a double espresso?

Krell, who started as a DA in Stockton before coming to Sacramento, grew up in San Francisco, where her father was an attorney. He was also a big motorcycle fan, and she remembers parts scattered throughout the garage. Through his private practice, he even represented members of the California Highway Patrol. “He definitely instilled in me the idea of justice, of wanting everything to be fair,” she says.

After undergrad at UC San Diego, Krell returned north to the UC Davis School of Law, where, according to a classmate, she cruised through the bar exam with her “photographic” memory. At this time, she also met her husband, now a Board of Equalization attorney, at a bowling alley. Coincidentally, his parents also met while bowling. “So, I know where my kids are going on Friday nights,” she jokes of her young children.

It was at this time she figured out what she wanted to do. “I think at that point I was pretty sure I wanted to be a prosecutor,” she recalls. “To be the person who stands up in court for victims, who seeks justice for the community.”

But, not unlike how President Barack Obama inherited former President George W. Bush’s two wars and crappy economy, if elected as DA, Krell will have to do more than stand tall—she’ll have to deal with an unprecedented, sometimes confusing and always ever-evolving inheritance: realignment.

A quick primer: Because of the Supreme Court ruling, thousands of offenders have been moved from state oversight to the county; by next year, almost 100,000 prisoners will have been transferred.

“And that population is difficult,” Krell explains. “Right now, we’re releasing people from prisons and county jails and we’re not supervising them, and they haven’t achieved anything during their period of incarceration.”

That’s not a good thing, but it doesn’t mean that realignment is a failure. Some say moving prisoners and focusing on rehabilitation will save the state billions of dollars. Others, such as Sacramento County Sheriff Scott Jones, contend that not locking people up is a huge threat to California’s public safety.

A study released last month by Stanford University professor Joan Petersilia says that both sides are “talking past each other.”

We don’t know, for instance, if realignment worked, because there hasn’t been any study to evaluate it. And the report says powerful stakeholders with “a skin in the game”—such as the corrections unions—often won’t relinquish funds to invest in rehabilitative efforts (as has been the case in Sacramento County).

And there’s “huge discretion among counties, and counties face different realities,” the report states. This means that what happens in the Sacramento County DA’s office will be a lot different than, say, in Alameda.

Scully and Schubert’s embrace of realignment has been lukewarm. This past year, the DA partnered with Rancho Cordova-based Assemblyman Ken Cooley on a bill to move more nonviolent drug offenders into prisons. Their argument was that the local jails are too overcrowded for these criminals, many of whom are serving sentences of five years or more.

Critics say these offenders need help, but won’t get the rehabilitative treatment available at county jails, such as the mental-health services at Sacramento County’s Rio Cosumnes Correctional Center near in Elk Grove, in state prisons.

The law died in committee this past May, but the battle continues.

Krell says we can’t waste more time looking at prison-based solutions. “It’s time to pay the piper for all the incarceration-based approaches different counties have had over the past decades.”

But still, to this day, Scully's regime and DA candidate Schubert continue with policies that critics say aggressively incarcerate nonserious, nonthreatening offenders.

Former Justice Rick Sims, who sat on the 3rd District Court of Appeals based out of Sacramento for nearly three decades, has endorsed Krell.

“She has energy, a different viewpoint and smart priorities,” he said.

When asked of the biggest challenges facing the DA’s office in this post-realignment world, the retired justice didn’t hesitate:

“The greatest realignment that has to take place is to lay off the prosecution of certain drug offenses, particularly marijuana,” he told SN&R.

Sims recounted his 28-year experience as a judge. “I would see these cases come through … with three-strikes law in effect. And I would sit there on cases, and the third strike would be a possession of a small amount of cocaine, in their shirt. And they would get 25 to life.”

Proposition 36—opposed by the California District Attorneys Association, of which both Scully and Schubert are board members—was passed by voters last year, and in theory, it, along with realignment, should have changed things in Sacramento. To put someone away for life, the final strike must now be serious and violent. More than 50 offenders have been resentenced since its passage.

Yet this county’s DA office continues to go after nonviolent drug offenses, sometimes with the full force of the law.

Local defense attorney John Duree has worked on drug cases and with addicts since 1981. He says that most people who experiment with drugs don’t keep it up. “Lots of people play around with drugs and leave them,” he observed. “Drugs aren’t that much fun for a long period of time, and a lot of people quickly figure that out.”

Law enforcement’s tentacles, however, often capture large swaths of users. But do all these offenders deserve jail time?

Consider Duree’s client Robert Malone.

In 2009, the same year Obama’s Department of Justice stated that prosecutors should no longer target individuals complying with state medical-marijuana laws, local law enforcement pulled Malone’s van over and cited him for possession of marijuana plants.

Turns out, Malone—a 65-year-old retiree with zero prior convictions—was cultivating “clones,” a term for baby cannabis plants, in the Bay Area and selling them to Sacramento marijuana dispensaries, of which there were more than 100 at the time. These plants were extremely popular at pot clubs, and they would sell out in a matter of days.

As Duree explained, in the criminal-justice world, most cases are negotiated. “And in negotiations, the DA carries much more weight than the judge.”

For Malone and his cannabis plants, Duree tried to work with the Sacramento DA’s office, explaining that his client was a nonviolent man who was only trying to sell medical-grade cannabis by the word of the law to legitimate dispensaries.

“I was personally convinced that this guy was a bona fide medical producer,” Duree said. “He tried to follow every rule he could follow,” based on the state attorney general’s guidelines. In most counties, these types of cases are dropped, he said. But negotiations with Scully’s regime failed.

Instead, her office offered up a seven-year incarceration sentence.

Duree rejected, of course—but then the deputy DA threatened to take the case to the feds, which would mean certain conviction and a guaranteed multiyear sentence.

“I didn’t have any other option other than to resolve it,” said Duree, who pleaded his client earlier this year. Malone ended up receiving a two-year sentence, including a full year in jail, this past May—all for a nonviolent marijuana offender in his mid-60s with no priors.

“It’s just a waste of law-enforcement and prosecutorial resources to continue to make this a priority,” Sims said. He says with Krell, “There would be a difference in drug prosecutions and the way drug offenders are treated in the system.”

Krell says there’s a lot of “confusion” surrounding the state’s marijuana laws, but that prosecuting nonviolent, low-level cannabis offenders isn’t the answer.

Schubert, meanwhile, recently referred to the state’s laws an “excuse for individuals to get the drug.”

Imagine a 24-year-old with a wife and young child is arrested for stealing a thousand-dollar car stereo. Let's pretend this young man is a first-timer. If he goes to jail, he potentially loses his job, his family forfeits income and the offender will have a hard time finding employment upon release. If he spends enough time in jail, odds are that he reoffends. Or commits an even worse crime.

Now, an alternative: The DA sends him to a community corrections program under the probation department’s supervision. Maybe he has a drug problem, so he gets treatment there. Or perhaps he stole the car stereo to pay for a hospital bill—so, at probation, an eligibility specialist signs him up for expanded Medi-Cal under Obama’s Affordable Care Act reform law, and his family now has health care.

Which outcome do you prefer?

“We have a tremendous opportunity to make a person’s first crime their last crime,” Krell says of this different way. It’s a philosophy that’s taking root nationally—and even a little bit here in Sacramento.

Two weeks ago in Washington, D.C., the attorney general brought the former head of the East Palo Alto Police Department, Ron Davis, on board to lead up a new community-policing office. The attorney general argued that because prison populations have grown by more than 800 percent since the 1990s and consume more than 25 percent of the DOJ’s budget, the status quo isn’t an option.

Davis tried new approaches in the Bay Area. He reduced the homicide rate there by 50 percent during his tenure by getting to kids while they’re young, before they offend. Krell aims to do the same.

“My biggest priority is really focusing on the front end, on new people that commit crimes, especially juveniles,” she says.

She insists that this isn’t giving criminals a free pass. “I think under my watch, more cases will be filed, frankly,” she argues.

How’s that possible? As it stands, the Sacramento DA’s office won’t file a case if they don’t deem it serious enough. That means, basically, there’s no repercussion for a boatload of offenders. Krell says she’ll have deputies go after these small offenses. “Because, if you don’t, you’re sending the wrong message. You’re saying that you can get away with it.” Instead, they’re going to have to earn it.

New Sacramento Probation Chief Lee Seale will help dangle a carrot.

Probation is no longer just about guns, badges and making sure people aren’t hiding drugs in their apartments. That’s a part of it, for sure, but there are also Adult Day Reporting Centers that, recently, started helping probationers with anger management, job applications, even clothes for interviews. They hold graduation programs every other month. “It’s really promising,” Seale said, “because you see stories of success.

“And this is actually going to lead to better recidivism outcomes than banging on doors,” he added.

Krell believes in this approach, and says she would put on her advocacy hat to ensure further investment. “Our recidivism rates are very high. They’re definitely above 50 percent, and there’s an argument that they’re above 70 percent,” Krell says. She sees this as “a failure rate.”

“We can go around and be proud that we have a very high conviction rate. We prosecute people. They’re guilty. We can prove it. We get a conviction. That’s great.

“But the question I want to ask is, ’What is the impact of those convictions?’”

Every living sheriff, who tend to endorse Republicans with knee-jerk aplomb, has backed candidate Schubert. That's why, during a debate this past November at the sheriff's community service center in south Sacramento, it feels like she definitely has home-court advantage. It also doesn't hurt that the county's top law man Jones is the evening's opening speaker.

A 23-year veteran of the Sacramento DA’s office, Schubert describes herself as an “in the trenches” prosecutor who’s notched more than 100 jury trials. She says she “knows how to put people behind bars.”

A third candidate, former Assistant U.S. Attorney Todd Leras, who only recently entered the race, is also a Democrat like Krell—although she’s gathered all the major endorsements, such as Senate President Pro Tem Darrell Steinberg and State Treasurer Bill Lockyer, and to that end, all the big party donors.

Still, Leras (read SN&R’s recent interview with him, “Word of the law” by Jeff vonKaenel, SN&R News, November 21 at http://tiny url.com/ToddLeras) has a similar take on the Scully administration, for whom he actually used to work before leaving in frustration. “The listening stopped,” he said of his experience with Scully brass, “and criticism was somehow viewed as disloyalty.”

At the debate, the panel and audience questions have very little to do with issues mentioned in this story. They focus on human trafficking, gangs and even National Security Agency spying. Realignment gets but little air time, even though all three candidates agree that there will be no greater challenge.

That said, the night is not devoid of a fireworks.

For months, Schubert was the lone candidate in the race and, by turn, essentially Scully’s heir apparent. But when Krell announced her candidacy late last spring, there were suddenly two viable candidates with healthy campaign coffers. Schubert went into attack mode.

At the debate, she accuses Krell of “prosecutorial misconduct,” arguing that she made an error during a 2007 trial that caused an appeals court to overturn her conviction. Krell has denied this, but Schubert does not relent.

“Was a case not thrown out, yes or no?” Schubert demands.

Prosecutorial misconduct implies an ethical lapse, such as knowingly hiding information from the defense. In Krell’s case, she mistakenly referred to a defendant, who refused to testify, by name. In a recent story, Sacramento Bee courts reporter Andy Furillo asked local judges if they felt Krell’s error qualified as misconduct or just a mistake. The verdict was mixed. Former Justice Sims called it “a small error,” not an ethical hiccup.

What is clear is that next year’s race will be contentious, fiery and unrelentingly political.

“I know this is supposed to be a nonpartisan race,” Sims told SN&R. “But [Krell] is a Democrat, and her principal opponent is a Republican.” There are going to be partisan attacks.

Krell’s no stealth candidate. It’s the issues that matter, and she drives them home to the debate’s crowd of nearly 100:

Sacramento can’t continue filling up jails and prisons with low-level, nonviolent, first-time offenders.

The recidivism rate is embarrassingly high.

Increased drug rehab, mental-health treatment, and community and workforce programs are woefully needed.

And taxpayers literally can’t afford more of Scully and Schubert.

After, she tells SN&R a story about when she was DA, and how she “saw the same criminals recycling through the system, the same criminals repeating the same crimes again and again.”

She says she also saw families and family names that were familiar, because it would be the uncle, then the nephew, then the son who was in trouble. “We used to kind of say, ’Well, today’s witness is tomorrow’s defendant.’”

After 20 years, she says, this has to change.

“We need to be sort of dramatic, and drastic, to break that cycle.”