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The ACLU's Deceptive Anti-DA Campaign

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Guest post by David Boyd

The ACLU has rolled out a new campaign in California to help people learn about the "most powerful elected official you may not know"; the elected District Attorneys. Instead, the ACLU has managed to increase misunderstanding rather than enhance any knowledge.

The ACLU states that a California DA has the "sole" power to decide what charges to bring and the severity of those charges. This is not true. Many, perhaps even most of the felony charges that are filed in California, can be charged either as a felony or a misdemeanor and the court has the authority to reduce that type of charge even when the DA chooses a felony charge. This power under section 17 of the Penal Code is not mentioned, but most certainly relates to the severity of a charge.

"They alone decide who is deserving of a jail or prison sentence and who will instead be routed into a diversion program to help rebuild their life, or have charges dismissed." Let me count the ways in which this is false. Odd that the ACLU would not mention that most crimes, including some violent crimes such as robbery, are probation eligible. In those instances, the court gets the final say on who goes to jail or prison, not the DA. Of course, the ACLU does not mention the power of the court to dismiss charges, penalties, or both, under section 1385 of the Penal Code either--a section invoked by the court, over the DA's objection, every single day in trial courts throughout the state.
The website provides four scenarios where the public is invited to "be a DA for a day." The choices are extreme and binary; as a result, they are not particularly realistic. Most outrageous, however, is the ACLU's statement in a drug sales scenario that if the DA chooses the most serious charge, that the defendant will receive a prison sentence, for the maximum term, and with no good time credits to reduce incarceration time. Using a 21-year-old female as the example, which is hardly representative, the ACLU fails to mention the fact that California law grants generous credits for good behavior, and rarely does the court impose the maximum sentence, even if the DA asks for it.

Despite the vigorous use of collateral consequences as advocacy throughout the website, not a single word is dedicated to California's longstanding and generous record clearance procedures that have recently been expanded by the Legislature. It appears that the ACLU has gone out of its way to reduce the public's understanding, not enhance it.

The ACLU lawyers who designed this campaign must know all of this; however, they chose not to mention them. California lawyers have an ethical duty of candor and honesty to the court as well as a jury; it appears the ACLU sees no need to extend the same courtesy to the rest of us. If all the ACLU wanted to do was to show that some elected DA's were out of step with the voters of California based upon Props. 36, 47 and 57, the data presented at the website and the public positions of the elected DA's would be sufficient. However, given the rest of the ACLU's presentation, it is no wonder that the public might become misinformed with respect to those very same propositions.

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