BILL ANALYSIS Ó AB 1909 Page 1 Date of Hearing: May 4, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 1909 (Lopez) - As Amended April 19, 2016 ----------------------------------------------------------------- |Policy |Public Safety |Vote:|4 - 2 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: No State Mandated Local Program: YesReimbursable: No SUMMARY: This bill expands existing provisions of law which make it a felony for a peace officer to willfully and intentionally tamper with evidence, to include a prosecutor who willfully and intentionally withholds exculpatory evidence, and makes the felony offense punishable by 16 months, 2, or 3 years in a county jail. AB 1909 Page 2 FISCAL EFFECT: Likely minor fiscal impact to the Department of Corrections and Rehabilitation (CDCR). If one prosecutor were convicted per year for tampering with evidence, who had a prior or current qualifying felony that required state imprisonment, the annual cost to CDCR would be approximately $29,000 the first year and $58,000 the second year, $87,000 the third year. Minor, nonreimbursable costs for incarceration, offset to a degree by increased fine revenue, to the extent the misdemeanor results in incarceration. COMMENTS: 1)Background. Current law makes it a misdemeanor for a person to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. Current law makes it a felony for a peace officer to knowingly, willfully, and intentionally alter, modify, plant, place, manufacture, conceal, or move any physical matter, digital image, video recording, or other exculpatory material, with specific intent that the action will result in a person being charged with a crime, or with the specific intent that the evidence will be wrongfully produced as genuine or true upon any trial, proceeding or inquiry. 2)Purpose. According to the author, bad-acting prosecutors AB 1909 Page 3 tarnish the image of otherwise hard-working, justice-seeking, and law-abiding prosecutors, and they have a destructive impact on our criminal justice system. Their bad actions often send innocent people to prison for a very long time. These actions force the public to lose confidence in the system while costing the systems millions of dollars in costly appeals. The author further states, "AB 1909 would provide much needed oversight, accountability, and criminal consequences for these bad actors. Currently, there are no criminal consequences for prosecutors who violate the rules and send innocent people to prison. The sanctions currently in place rarely, if ever, are used against these bad actors. These bad-acting prosecutors must be held accountable for their life-altering misdeeds. This measure would provide a much needed deterrent effect and hopefully lessen the number of wrongfully convicted." According to a Yale Law Journal article, "[a] prosecutor's violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies. ? a recent empirical study of all 5,760 capital convictions in the United States from 1973 to 1995 found that prosecutorial suppressions of evidence accounted for sixteen percent of reversals at the state post-conviction stage." 3)Support: According to the California Attorneys for Criminal Justice, "Current law, as passed last year in AB 1328, requires a court to notify the state bar of such a knowing and intentional Brady violation. However, besides this option, there are no criminal consequences for such intentional acts. When a prosecutor intentionally withholds exculpatory evidence, an unknowing and innocent defendant can be convicted, sentence, and incarcerated for a long time. These bad-acting prosecutors rarely, if ever, face any actually consequences for their actions." AB 1909 Page 4 4)Opposition. According to the California District Attorneys Association, "AB 1909 would make it a felony for a prosecutor to "knowingly, willfully, intentionally, and wrongfully" tamper with or withhold physical evidence, along with "relevant exculpatory material or information". In the context of criminal discovery, courts have held that "knowing" violations may include negligent or inadvertent conduct. Therefore, this bill may criminalize prosecutors who unintentionally turn over discovery once trial has commenced. "Further, just last year, this Legislature passed AB 1328 (Chapter 467, Statutes of 2015), which requires a court to inform the State Bar when a prosecutor deliberately and intentionally withholds relevant or material exculpatory evidence or information in violation of law, and also allows for the disqualification of an individual prosecutor, or even an entire office, when this type of misconduct is found to exist. "Now, before the ink is even dry on the Governor's signature of that bill, comes an outrageous attempt to criminalize prosecutors for conduct that falls well short of criminal. Analysis Prepared by:Pedro Reyes / APPR. / (916) 319-2081 AB 1909 Page 5