An Honest Debate on Prop 36: Vern Pierson (El Dorado DA) & Matt SotoRosen (San Fran Public Defender)

We have simply made a decision as a result of Prop 47 to permit hardcore drug use to go unabated. We have no consequence for that. The drug courts were the most effective way of dealing with that to provide an incentive for people to get off the drugs. If you have someone that's accused of a felony, whether it's a petty theft for stealing $25 worth of food from Safeway or whether it's simple possession of a narcotic and they're going to be competing for court space with the rapes, robberies, and murders, and it's simply going to overburden the system to the point where it's going to collapse. One of the most important initiatives this election cycle in California is Prop 36. In today's special program, we have multiple perspectives on Proposition 36. My guests today are Vern Pearson, District Attorney of El Dorado County, and Matt Sodor-Roman, who's a public defender from San Francisco. Today, we dive into pros and cons of Prop 36. If this passes, what's going to happen the very next budget cycle, Vern has the District Attorney of El Dorado and other district attorneys and other folks are going to go to the legislature and say, we need more money to help fund this. What have you seen change in this state? Have you seen property crimes go up dramatically? Have you seen homelessness go up dramatically? Do we see the people overdosing going up dramatically in this period of time? I'm Siamak Khorrami. Welcome to California Insider. Matt, it's great to have you on. Welcome. Thank you, Siamak. Thanks for having me here. I really appreciate it. Vern, it's good to meet you today as well. Nice to meet you. And you're with the Public Defender's Office from San Francisco. You're here to discuss Prop 36. Vern Pearson, Vern, it's great to have you on. Welcome back. Thank you. Pleasure to be here. We want to talk to you about a really important ballot proposition that's coming up, Prop 36. A lot of Californians are wondering how this proposition will work out and what they should do with it. Vern, can you tell us what is this proposition about how it will work? Well, probably the best way to understand it is to go back in time 10 years and look at Prop 47. Prop 47 made significant changes in basically the ecosystem of the criminal justice system here in California, where largely hardcore drug use, the way it's enforced here in California, was essentially decriminalized. It wasn't made to be nothing, but it was made to be a misdemeanor, which, because of the way various rules work here, amounted to no enforcement. And then with property crimes, lower-level property crimes, they were essentially reduced to being decriminalized as well, but there's no real enforcement of this. What Prop 36 does is to not fully repeal Prop 47, but make some fairly significant revisions to it by saying the third time you're convicted of a property crime, a lower-level property crime, the third time you're convicted of a hardcore drug crime or use, sale, possession of fentanyl, that there are, in fact, penalties for it. And part of what Prop 36 does, in particular with the hardcore drug possessions, is create this thing called a treatable felony to where after the third offense, you can go to treatment and rehab or you get a felony. And probably the most effective thing within it is to bring back the ability to have drug courts here in California. If you look at the Obama administration under Eric Holder, one of the things that they studied was what's the most effective thing to deal with people who have become addicted to hardcore drugs? And it was the drug courts. The drug courts were very effective to where the judge essentially, in a collaborative manner, the public defender, DAs are there, probation departments. They come to court. The offender comes on a weekly basis or a monthly basis. They get drug tested. And the judge has the ability to say, hey, if you test dirty again, I'm going to put you in jail for 15 days. There is some type of a hammer. The carrot is your case will get dismissed if you complete the rehab. Those essentially went away as a result of Prop 47. And so what we were trying to do with Prop 36 is bring that back. Now, Matt, what do you think of this proposition? I do agree with Wern that you have to go back in time to kind of put this all in a larger context. Even before Prop 47, California was subject to a federal decree because of the United States Supreme Court saying that our prisons were overcapacity and it was a violation of the Eighth Amendment. And we had well over 180,000 people in California state prisons. And this is going back to, say, the year 2011. And the legislature's passed Assembly Bill 109, which is sometimes referred to as realignment, in order to change. One of the things it did was change the line between, say, a misdemeanor, petty theft, and a felony grand theft in terms of a theft crime, was to increase the dollar amount from $400 to $950. And that actually brought us California in line with the rest of the country. In California, the $400 amount had been on the books for decades. And even at the $950 level, which has been in existence since 2011, there are still 40 states in the United States that have a higher level above $950 to demarcate a misdemeanor, petty theft, versus a felony grand theft. So for example, the state of Texas, I think it's $2,000 or even $2,500. South Carolina, it's also $2,000. So there are 40 states that have a demarcation that's over $950. So even though we've had that now since 2011, that just brought us kind of into line with the rest of the country. There's also about half of the states, I think it's about 25 states in the United States, treat simple possession, we're talking about nonviolent offenses, of simple drug possession as a misdemeanor, as a straight misdemeanor. And so that also brought us in line with half of the states around the country. So our prison population was way over and we're still under that consent degree today. So the prison population was brought down and Prop 47 in 2014 simply kind of continued in that vein. It reclassified certain nonviolent property crimes like forgery, things that are theft related, if it was less than $950, then it was classified as a misdemeanor. And that was an effort to try to get our prison population down and our costs down. There was recent news articles that talked about the cost of incarcerating a person in California state prisons today is $132,000 a year. So just for example, with Prop 36, as Vern mentioned, there's something called a treatment mandated felony, which means that if a person is charged with a felony for simple drug possession, they have a choice under that law, they can take a felony and go to prison, or they can do drug treatment. Okay, fine. That's going to result in a certain number of people going to prison. It's just, that's just the odds, not every single person 100% is going to do felony, I'm sorry, do treatment, and they're going to end up with a felony. If just 2000 persons and they're talking about the entire state of California, right, we're talking about Los Angeles, San Diego, Santa Ana, all up and down the state, if just 2000 people went to California state prison for one year, that would increase our state's costs by $264 million. We're talking a quarter of a billion dollars to incarcerate those extra 2000 people. And the minimum sentence for a felony for drug possession under Prop 36 would be 16 months, it wouldn't be one year. So it'd be even more than that. It would be more like $350 million. So I think that the folks that have written Prop 36, they have really good intentions. I agree with the idea that people who have drug addiction that they should get treatment. I agree with the fact that homelessness is a is an issue in California, and it's a complex issue. But Prop 36 is what they call an unfunded mandate. There is not a single dollar attached to Prop 36. So we want to set up a situation where we're going to have treatment mandated felonies, where in 22 counties in California, there is no existing residential drug treatment. So I think it's important for your viewers and for voters to understand, look, if this passes, then what's going to happen the very next budget cycle is that Byrne as the district attorney of El Dorado and other district attorneys, and other folks are going to go to the legislature and say, we need more money to help fund this. And so the other thing that it would do if we if we change this is Prop 47 was entitled the Safe Neighborhood and Schools Act. And all the money that we've saved by not incarcerating people for low level theft offenses, and simple nonviolent drug possession offenses goes into the Safe Neighborhood and Schools Fund. And over the last decade since 2014, that has resulted in almost $1 billion in grants that have been given out to communities all around California. As I mentioned before we started, I'm a Californian. I've been here my whole life. I grew up in San Diego. In San Diego, if Prop 36 passes, the county is going to have to come up with an extra $150 million in increased court costs. And the money that they currently get from the Prop 47 grants is going to disappear. For example, there's a Rady Children's Trauma Recovery Center in San Diego that's a grant recipient. There's the Grossmont Community College Fund, there's grant recipients. All of that is going to go away if Prop 36 passes. And we go back to what we had in the 1990s, which was if you commit a third petty theft, it's a felony. If you commit a simple possession of a narcotic, and it can be a quarter of a gram of a narcotic, it doesn't matter. You can get a felony. We tried that in the 80s and 90s. It resulted in this huge overpopulation of our prisons. It strained our courts. It strained our municipalities' budgets. And we know that that doesn't work. So I don't see why we'd want to go back to that by passing Prop 36. I appreciate what you're saying. As one of the people who wrote Prop 36, I think it is well-intentioned. And most of what he said, the vast majority of it, I agree with. So AB 109 realignment was the product of prison overcrowding. And the practical reality is there were too many people that were going to prison for too long of sentences. It was a reaction to crime in the 90s, 80s, and 90s that was too high. And it was an overreaction. That's fair. Jerry Brown, the governor then, figured out that if you house inmates in a county jail, state inmates in a county jail, it's about 50% less expensive than it is in the state prison. As you correctly say, it is incredibly expensive for a whole host of reasons. It's incredibly expensive and not cost-effective to keep people in state prisons. So AB 109 took a percentage of those inmates that were people committing crimes, and they were housed in a state prison, and sent them back to the jail. Part of that, from state, from county to county route, rather, there's a little bit of variation, but it's somewhere approximately 20% of the people that are currently in county jails today and over the last 10 years are people who would have been instead in state prison. And from an objective cost-effective standpoint, it's fair enough to say, yes, it's less expensive for them to serve their time in the county jail than it is in a prison. But the problem, at the same time you did that, we already had jails that were largely full. Then you made them, you added more inmates, state prison inmates, higher risk, higher level inmates. And so you filled the jails up artificially with those, which means then that there's not enough room for misdemeanors, the classic misdemeanors. And to the point, very fair point in terms of saying, comparing us to say, to Texas or a number of other states where the threshold from a felony versus a misdemeanor. Here in the state of California, because of culture, because of litigation, because of a whole host of reasons, the practical reality is if a judge says, you've committed this property crime, I'm going to sentence you six months in jail as a misdemeanor, a misdemeanant defendant, convicted. Six months in jail in San Francisco is how long? A few days, maybe. In some jurisdictions, they won't even accept the booking for that. The sheriff will just say, we're not going to accept you on that. In some L.A. county, you get booked and then released. My county is a more aggressive county and tends to keep people more time in custody than others. Placer County is another county that's more like that. But others are not that way. So there's not enough room because of this realignment that took place to hold misdemeanor defendants the way we used to, so that you caused this artificially having to let more out. And there's other factors, and it is a complex problem that contributed to that. But the problem, the bigger problem in this, and again, factually I agree with most of what he's described, is that people right now, if you stop and look at what has happened in the state of California as a quality of life in the last 10 years, Stanford University, they studied homelessness. I spoke at a forum on homelessness a year and a half ago. They estimate there has been a 51% increase in homelessness in the state of California because of changes that were made in laws. There's no question that affordability is a major problem. It did contribute to that 51% increase in homelessness. But the rest of the United States during that same time period, homelessness went down by 9%, and that includes states like New Jersey, just as blue as California. But what New Jersey did not do that we did, was we decriminalized hardcore drug use because of this, because of the capacity issues with jail. In other words, the people that, and I've done it, I've made videos, I've walked around in homeless camps in Sacramento, in San Francisco, in Southern California, if you see, if you go and spend some time around the homeless, it's not just people that are suffering from an affordability issue. You see repeatedly people that are strung out on drugs that have been using, addicted to heroin, addicted to whatever. One of the other people that was most directly involved in drafting Prop 36 is the District Attorney of Yolo County, a good friend of mine, Jeff Reising. His nephew grew up in an affluent family, is a heroin addict that lives on the streets in West Sac. And he's perfectly content to live there because there is no consequence for him using hardcore drugs, heroin. He gets fed, he gets supplies, he's been arrested multiple times. He knows that he will be released almost immediately. And we have simply made a decision as a result of Prop 47 to permit hardcore drug use to go unabated. We have no consequence for that. The drug courts were the most effective way of dealing with that, to provide an incentive for people to get off the drugs. The harm reduction, all of the stuff that was all part of that idea, George Gascon coming out of San Francisco and moving to LA. I sat right down the street from him when he advocated for Prop 47. He was the mastermind of it, if you will, or one of the people. And he did a presentation on it with the DA's Association. And I said to him, you are about to engage in a large scale social science experiment. And if you're right, California will be all the better for it. We did, as you said, we had 100%, we had this problem of overcrowding. It was very costly. But if you're wrong, we're going to have an explosion of homelessness, we're going to have an explosion of drug addicts, overdoses, everything else that we've had. And he was wrong. He was, that is what caused this problem. Again, number of different contributing factors to it, expenses, expensiveness of housing, things like that. But the unabated drug use is what created this explosion in homelessness. And remember, the governor, unfortunately, just vetoed the legislature asking for an audit on how much money we're talking about, we're spending, the state of California spending on homelessness, estimated around $24 billion, with a B, in the last five years. The governor has made it its top priority every single year for the last five years, dealing with homelessness, dealing with homelessness, dealing with homelessness. And every year it has gotten worse, because we're not addressing the root cause of it, which is unabated hardcore drug use. So are you saying that the amount of money that's needed to put this in place is worth California spending this amount? I'm saying we're already spending it. We're spending it on housing people that are dysfunctional because of their hardcore drug use. We're spending it on all the other supportive services that we're dealing with the homelessness problem. It's all interrelated. And I hear this stuff where people say, well, what does Prop 36 really have to do with homelessness? And it's like, come take a walk with me. I will go walk with you in an area where there's a number of homelessness in your home, well, not your hometown, well, San Diego. San Diego, 10 years ago, very small problem with homelessness. They've suffered an explosion. And now all of a sudden what we're doing is the governor comes out. It's like, well, start moving them out. I'm for one, as an advocate for Prop 36, I don't think just going and collecting and picking up the homeless camps and moving them somewhere else, that doesn't fix the problem. That's not a compassionate way of dealing with a problem that we as a society created. I want to do something about what caused this explosion in homelessness. I want to deal with, and this has to be very clear, nothing to do with marijuana. It has to do with fentanyl, cocaine, heroin, hardcore drugs, where we have adopted a policy where we essentially say, we know that the drugs that you're using will kill you eventually, but we'll provide a nurse, we'll do harm reduction, a needle, things like that. It won't kill you today. It won't kill you tomorrow, but it'll kill you the next day. Reoccurring hardcore drug use will kill everybody who's using it eventually. It will render you dysfunctional, where you live on the street and you cannot function as a normal person in society. If you like California Insider and you'd like to know what's going on in California, make sure to check out Epoch Times. This is a newspaper that started by a group of Chinese Americans because of human right abuses in China, and now it's starting to grow here. Make sure to go to the Epoch Times website and check out the California section, where you can get a lot of fresh perspectives on what's going on in California. Now, let's go back to the interview. Now, Matt, the situation with drugs has changed in the last decade. Now there's fentanyl. It's a lot more addictive compared to a lot of, in the past, marijuana was part of the reason people were getting incarcerated, right? Right. Now, what are your thoughts on the drug side of this? Yeah, well, and this is maybe where Vern and I don't entirely agree on Prop 36. The idea that there's this nexus between the reduction of certain crimes to misdemeanors, and all we're talking about is petty theft. We're talking about shoplifting, and we're talking about simple possession of a drug, right? Whether that be fentanyl, cocaine, methamphetamine, those hard drugs, that's the only thing we're talking about with Prop 36, so I just want everyone to understand that. So, for example, in California, it has always been the law that if you sell, furnish, or give away any hard drug, that's a felony, and it cannot be reduced to a misdemeanor, even by a judge, and that's prison, okay? If you possess drugs with the intention of selling them, or intention of giving them away, that's called possession for sale. That is also a felony. It's always been a felony. That has nothing to do with Prop 47, or Prop 36. So those are just straight felonies. A judge, even if it was an 18-year-old kid and took empathy on someone, could not reduce that crime to a misdemeanor. That is that, okay? So, every X number of years, there's something that comes up, and there's calls to do something about it, right? Like, right now, that's with fentanyl. So, the thing with fentanyl is, yes, it's more addictive, and yes, there's a certain percentage of folks that are dying from that. My way of looking at it is, this is a drug that is a public health concern, because of the stories that we hear about folks dying. And the question is, where are we going to spend the money? Are we going to spend the money with, and not just needle exchanges, and not just distributing, say, Narcan or something to prevent people from ODing? Although, at least in the places in California where I go, social workers, firefighters, paramedics, everyone has Narcan, I'm sure, in your jurisdiction as well, Vern. And it does save lives. And the thing about fentanyl is, I think there needs to be a public education campaign, and I think it needs to start in the schools, because there was an article, I think in the LA Times, that talked about a high school kid that took something and then died because there was fentanyl in it, and no one knew that there was fentanyl in it, right? So, my understanding of fentanyl, and I'm not an expert on this, but that folks that are addicts and are used to getting a certain high from a drug, well, fentanyl will give you even more of a high, right? So, it's a dangerous business, right? Buying narcotics on the street and not knowing what's in them is a very dangerous game. And so, for example, a college kid who's experimenting with something, they take a pill, they don't know what it is, and that person ends up tragically suffering even death from that because it has fentanyl in it. That's something where we can have all the punishments in the world for the drug dealers, but those street-level dealers, they generally are not the ones manufacturing the drugs, right? I mean, we have, and this is, and you may have experience with this, Vern, I don't know, but really it's in the federal courts where a lot of the trafficking and sort of more of the cartels are prosecuted and the higher-level stuff. In state court, where Vern and I practice, we're talking about sort of low-level street dealers, or even, and it's not even, there's not a lot of sophistication to it, to be honest with you, especially in state court. Some of these folks are users themselves and they're selling to support their habit, etc. So, the question is, would a public education campaign to say, look, especially for even like high school kids, college kids, or even the general public, look, there's this out there, you don't know what's in thing, this is a dangerous game to be involved in, would that save more lives than saying, let's just increase the punishment on this? Because all that's going to do is saddle people with felonies and get them back into state prison. Vern mentioned, what about misdemeanors, it's decriminalized. I'm going to take issue with that only because it's not decriminalized. Misdemeanor is a crime, okay? You have a criminal record, it is punishable by either six months in jail or a year in jail for each offense. So, we already have tools at our disposal in the criminal legal system in order to provide like a stick, the carrot and stick approach with respect to misdemeanors. For example, if someone is charged with possession of a tiny amount of heroin or crack cocaine or even fentanyl, they're facing up to a year in jail. And in San Francisco, a year in jail means a year in jail with the credits that you get according to the penal code. It's not four days, it's a year in jail. So, that's a long time to be in jail on one count of simple possession of a narcotic. And so, if the criminal legal system is not enforcing the laws that are already on the books, how are we going to enforce a new law, which is Prop 36, where we're going to have to increase the punishment? Vern mentioned, oh, well, the jails are overcrowded because folks that were in prison on low-level felonies got transferred to the jails. Okay, we're kind of through that, we're kind of past that because that was in 2011. We're 13 years past that. So, now the jail populations have sort of leveled out. But if you have someone that's accused of a felony, whether it's a petty theft for stealing $25 worth of food from Safeway, or whether it's simple possession of a narcotic, and they're in felony court, and Vern knows this, they're going to have the right to have a preliminary hearing, they're going to have a jury trial, and they're going to be competing for court space with the rapes, robberies, and murders. And it's simply going to overburden the system to the point where it's going to collapse. The question is, when you're talking about someone who needs treatment, the question is, is the criminal legal system the best way to address somebody who is an addict, who's living in West Sacramento, and is in need of treatment? Do we need judges, bailiffs, court reporters, public defenders, prosecutors, spending all of that type of money with that apparatus in order to treat someone who has an addiction? There are other ways to do it that are outside of the criminal legal system. I'm all about cause and effect. We can draw a line, it's not me, Stanford University looking at it and saying, we had a major change in the law, we went up 51% in homelessness, we went up staggering amounts in deaths due to hardcore drug use overdoses, we went up in terms of the dysfunctionality of people, we doubled the incompetent to stand trial population. In other words, people who are such a mess, that due to mental illness, due to drug use, whatever it is, they come into custody after committing a crime, and they're incompetent to stand trial. Since Prop 47, that population has doubled. What caused it? You can try to isolate out, as Stanford did, was it this, was it this, is a contributing factor, the expensive, how expensive it is in here, in the NIMBY-ism, everything else. Sure, it contributed to some of it, but not all of it. The most large, the largest contributing factor is this change that we took place, where as a culture, we basically said, we're okay with people continuing to use hardcore drugs, and there's no consequence for it. That is the single biggest change. All I would say to people watching this, to you, anybody else watching this, what have you seen change in this state? Have you seen property crimes go up dramatically? Have you seen homelessness go up dramatically? Do we see the people overdosing going up dramatically in this period of time? Yes. I would look at one of the country's leading experts from Stanford University, Anna Lemke, her book, Dopamine Nation, she's one of the leading experts on addiction. You cannot fix addiction by telling somebody, hey, go to rehab. You have to have a consequence. In her opinion, typically it's 30 days of a locked facility. That is the most effective way to get somebody off of it, which is what the drug courts permitted the judges to do. In this measure, in Prop 36, as you say, it means something becomes a felony that wasn't a felony before, becomes a misdemeanor. But the judge still has discretion, like they did in the drug courts. The judge can say, well, I'm going to put you in the drug courts, I'm going to put you in temporarily for 15 days, for 30 days in custody, and then drug testing. The chief probation officers here in the state of California, originally they were in favor of AB 109 realignment, some of the changes that we're talking about. Now they've come out and endorsed Prop 36. They at least have recognized, we engaged in this giant social science experiment, and it failed. It didn't work. Look at Oregon. Oregon did the same thing. They did it a different way. They came out and actually said, well, we're going to legalize hardcore drugs. Now they're walking back on that and saying, we've had this explosion of homelessness and drug addiction and overdoses that took place. This is a really balanced measure. I can tell you, when we originally put together Prop 36, we looked at, again, Jeff Reisig, for example, his nephew, and said, you can care about somebody and not want them to die in prison, and also not want them to die in the streets. It's a disgrace what has happened to the streets of the state of California. This is the most beautiful place in the world. I've traveled all over the world. I'm sure both of you have as well. Yet, if you walk around in our cities and you see people that are totally dysfunctional, Santa Monica, Santa Monica is one of the most beautiful places. It is a mess. I went to Target not long ago, and a brand new Target in downtown Santa Monica with my son and my daughter-in-law. I had to go to the bathroom, and I ran into the manager, and I said, hey, can you point me to the bathroom? This is a Target. Targets have kids, bathrooms, everywhere else. The place where there isn't a public bathroom is any of our beach cities, which are exploding with homelessness, because, like in Santa Monica, beautiful brand new Target, no public restrooms, because they say they cannot permit them, the homelessness, the people that are strung out, whatever the circumstances, to destroy the bathroom, and so they just have no public bathroom. That is the consequence. Ultimately, we have to ask ourselves, are we okay with that? I'm not. I don't want to see people dying on the streets. I don't want them dying in prison. I'm not in favor of mass incarceration at all. I'm not in favor of putting drug addicts in jail or prison. I am in favor of giving a consequence that says, we have to do something to make you get off the drugs before it kills you, before you become dysfunctional. We already have those tools. As Vern just pointed out, let's say that you have a person who's charged with a misdemeanor, and it's a non-violent possession of drug offense. The case gets charged, and they go to court. They're facing up to one year in the county jail. According to the California Penal Code, that means that you would serve six months. We're in October right now. Six months. Imagine that you were taken away from your family for six months. You were taken away from society for six months. You're going to miss Halloween. You're going to miss Thanksgiving. You're going to miss Christmas. It's not an insignificant amount of time. We already can have the judge offer somebody treatment through a drug court on a misdemeanor. If a person wants to be granted probation, and they're not going to go to jail, you can have the probation department give them drug treatment on a misdemeanor. If we're not going to be sending people to prison for simple possession of narcotics, then why do we need to make it a felony? We already have the tool, which is that it's not decriminalized like Oregon or that experiment in Oregon. In California, it's against the law to possess these drugs, and the punishment is up to one year. As far as the explosion of homelessness goes, I would suggest to folks, look, since the 1990s, property crimes and crime in general has been steadily going down in California. I think where there's some confusion potentially is that since 2020, there's been a slight uptick. I would invite folks to think about the fact that in 2020, we had a worldwide unprecedented pandemic where a lot of folks lost their job, lost their housing, etc. The question is whether that may have caused an uptick in folks living on the streets in the last couple of years. If you think about it, there are 40 states around the country that have a higher threshold than $950 between a petty theft and a grand theft, which is a felony. There's 25 states, including South Carolina and other states, where simple possession of a drug is a misdemeanor. Is there a causal link between those laws that are in all of those states and homelessness? There isn't. If you go back to the 1990s, those crimes were felonies back then. What's to say that when we go back to felonies now, we're not going to just return to the over-incarceration of folks in the prisons? If we're not going to send folks to and we're going to give them treatment, then all we need is to have a misdemeanor, right? Because there's a consequence for that. Let's be straight. You work in the criminal justice system. You're saying what the law permits. You're not seriously saying in the state of California, a judge sentenced someone on a low-level property crime, possession of narcotics. Judge says it's 90 days in jail. You're not seriously saying that those people are actually serving that type of sentence in California. Because if you are, you are mistaken. That is not happening. That has not happened in many, many years. Why isn't it happening? Well, because of various reasons. Overcrowding in the various jails. In San Francisco. San Francisco was, for a period of time, about two years ago, San Francisco, the main jail, was not even accepting low-level felons into the jail for booking. They would say, nope. There's a case of a guy that did a robbery on BART, took a felony robbery of a cell phone and some other property on BART, going from San Francisco to San Mateo. He was taken into custody and arrested by SFPD. They tried to book him into the jail on a simple felony robbery case. SFPD said, we're not accepting, we're overcrowded, we're not accepting a felony robbery case, which is a serious, relatively serious case. Instead, they had to take him to San Mateo County. San Mateo took the booking. They ended up, because of the ability with jurisdiction, to prosecute the case in San Mateo County, right next door. That is the practical reality. And I agree with some of what you said, in terms of, from a legal standpoint, I would like to see the state of California return to days where, if a judge says, you're going to 60 days, or six months, or whatever the sentence is, on a misdemeanor, and you actually serve that. But that is not the case in the state of California, and it has not been for 20 to 30. I've been practicing for more than 30 years. Early on, yes, the people were getting sentences like that. But that is, those days have long since gone, and they have not been the case since AB 109, or realignment. It has only gotten worse. First of all, I got to be honest, this story that you, and I've heard you tell this story before, about this person who was arrested for a robbery, and was not booked into the San Francisco jail. If, you know, after this is over, you want to provide me a name or something, I can- Steve Wagstaff, the DA of San Mateo. No, the person who was arrested. Well, just ask Steve Wagstaff. Okay, I'll ask Steve then. I'll ask Steve. He, so, yeah. People are booked into the San Francisco jail 24 hours a day, Sunday, Saturday, one o'clock in the morning, it doesn't matter. We have a unit in our office in San Francisco that we have investigators and attorneys go talk to folks after they're booked, before they appear in court, and we get a list of all the bookings that happen. Bookings are happening 24 hours a day in San Francisco jails. As far as whether folks can be sentenced to jail on misdemeanors, folks are sentenced to jail on misdemeanors, and according to the penal code, they serve one half of the time. For example, if you're sentenced to six months jail, if you have good conduct while you're in the jail, you serve three months. You're saying they're actually serving that on misdemeanors in San Francisco? Yes. There is not, we don't have a situation where there's overcrowding in the jail. When 2020 happened, and folks probably don't remember this because I've tried to forget a lot of things about 2020 myself, but COVID, before there were vaccines, there was a lot of fear about COVID and the lethality of it. People were getting COVID, and people were getting very sick, and people were dying, and it was a factor of whatever, a factor of five or whatever it was in penal institutions, whether that was California State Prison or that was county jails. I don't know what it was like in the El Dorado County Jail, but in San Francisco, there was a collaborative effort between the prosecutors, the judges, the sheriff's department, probation, and the public defenders to reduce the county jail population to stop the spread of COVID. That was in 2020. Now we've kind of come out of the pandemic, and our jail population has gone up. We have a new DA in San Francisco who was elected two years ago, and there's more emphasis on punishment, and our jail population has gone up as a result. People are sentenced to county jail. They're serving county jail sentences, and there are issues all across the board and all across the state of California with staffing, whether it's police staffing, whether it's sheriff staffing. I don't know what it's like in your county, but the great resignation, as we can talk outside the criminal legal system for a minute, that happened after 2020, it's affected every sector of employment, including probation officers, including police, etc. We used to have, you know, in the old days, community policing. Now police don't want to walk beach. They don't want to do that. Folks have decided that they don't want to be police officers, maybe. I don't know. Enlisting or enrolling is lower. So if we're going to do all of these things that we're talking about, it's going to cost more money, right? And I think that we already have the tools. We already have the laws on the books to enforce all of the things that we're talking about, which is basically petty theft, shoplifting, and simple possession of a narcotic. We don't need to go back in time and create felonies out of those crimes. Brooke Jenkins became the DA two years ago, as you said, exactly right, and she started enforcing the law again in San Francisco. Drug overdoses have dropped almost consistently every month since then. Homelessness is not going down dramatically, but it's definitely going down. Crime is going down in San Francisco because of everything that we're talking about here. So you have a DA in San Francisco now that's actually enforcing the law. Again, I just say it in terms of that on so much of this we can agree but then disagree because this is a social science experiment. Brooke's predecessor believed in harm reduction, believed in, well, he inherited policies of harm reduction, things like that, not enforcing the law, not prosecuting people, not having crimes be prosecuted really very much at all unless they're the most serious of crimes. And as a result, in the last several months, homelessness is down, drug overdoses are down, the addiction and some of the problems in San Francisco are down. I'm sure you've seen the numbers. But that just proves the point. That's all happening now. We haven't had Prop 36 passed and with a prosecutor who's using the tools at their disposal right now as the laws as they are right now, to your point, crime is down, homelessness is down, all of those things. That's what I'm talking about. In San Francisco. San Francisco is among the worst homelessness, among the worst overdose deaths in the United States. Brooke comes in, she starts enforcing the law to the extent that she can, and it suppresses those same overdoses, the homelessness and things. They do not go away because there is, again, I'm saying the cause and effect thing. What we're saying is we need to expand that. We need to give Brooke and other DAs like myself more tools to get more people off the drugs, to get them into rehab. And I really do think, I mean, it's, I mean it when I say I am not, I was not in favor of mass incarceration. I did see that there was mistakes where people were going to prison for relatively low level crimes. I think the example you used was $25 theft, but they've had repeats. That shouldn't have been happening, but that's not what Prop 36 does. Prop 36 gives judges the ability to exercise discretion and say, you've had five dirty tests, you're going back to jail for 30 days as a consequence. Human behavior is driven by consequence. We all know that. We learned that as, hopefully we learned it as kids, that if there are no boundaries from your parents, kids get wilder and wilder in the behaviors that they engage in, which is what happened in California. We created an environment of lawlessness here in the state of California by, in large part, Prop 47. Prop 109 contributed to it and other things contributed to it. But the thing is, and the one thing I would take issue on, I know you're very careful with your wording. Yes, the judge is sentencing the people on misdemeanors, but they are not serving real sentences on misdemeanor offenses in the state of California. It is not happening. My county is more than most counties, Placer County right next door. Anybody, if you Google El Dorado bro, we did a video where we had a conversation between two, an inmate and his friend, and he cannot understand the guy that's been arrested. He's talking about all the different jurisdictions where he's been arrested and talking to his friend and his friend is saying, don't cross the line because those guys take things seriously. The place is full, but they'll keep you in custody. And the guy says one of the best lines in that entire exchange between, remember, this is an inmate in custody talking to his friend on the outside, and he's saying, that's the way it's supposed to be. There would be a lot less crime if people were held accountable. Okay, look, if someone is going to serve, let's take Jeff's brother in West Sac and he gets charged with the new, sorry, nephew, excuse me, with the Prop 36 mandated felony. You know, I've been working in the criminal courts for 26 years, and I'm sure Vern has for at least that amount of time, and I've participated in every court there is. Felony court, drug court, mental health diversion court, veterans justice court, et cetera, et cetera, et cetera. And the success rate of folks that are seeking treatment through the criminal legal system is low. And part of that is because, and there's a million studies, and I'd be curious what Dr. Lemke from Stanford would say about this, that it's a two steps forward, one step back kind of a thing. It's not as simple as you get popped for possessing a quarter of a gram of heroin, you go into this Prop 36 treatment mandated felony court, and six months later, you're cured, and it's fine, and it's good, and your case goes away. That's not what happens. Under this law, if you read the actual code sections that's proposed by the law, it leaves total discretion to the judges and the prosecutors of like, how well is this person doing in this treatment court? When are they going to be terminated from the court? How many chances are they going to get? In other words, you talked about someone having a dirty urinalysis sample, and they get 30 days or whatever the case may be. You have 58 counties in California, and I'm telling you right now, one of the things that's going to happen is you're going to have uneven application of this law. Maybe it's the case that Vern is a very compassionate district attorney, but in other jurisdictions, you're going to have folks saying, okay, you did two dirty urine tests. You're out. It's a felony, and so we'll see you. You're off to state prison. So that's the problem with this. We already have tools at our disposal, which is a misdemeanor. It's not lawlessness. There's a law. It's a misdemeanor, and it carries up to one year in jail. And within that, you could have, maybe there's a middle ground where there's, like with the post-release community supervision, you could have a flash incarceration aspect of it within the context of a person facing a misdemeanor if they're participating in a drug court and a treatment court, that if there's a certain consequence, if they do something like relapse, then they get a 10-day flash or whatever the case may be. There are ways of doing it within what we already have. If the county jails, if Vern thinks that folks are not actually serving time in county jails that judges are sentencing them to, I don't know legally how that's happening, to be honest. If the sheriff's offices, who are the ones who administer the county jails, if they are releasing people before they're sentenced due to overcrowding or whatever, if they have legal authority to release people, if that's because of budgetary concerns, then this is what I'm talking about. We're already a financially strained system, and we're talking about more incarceration and with felonies, longer incarceration, and it's already a strained system. So you live in San Francisco, or you work there, but I don't know if you live there, right? I don't live in the county of San Francisco, although I did live there for 20 years. Okay. So you've seen the homelessness that has increased there, and I'm assuming, I would like to think that you've gone and looked at the population that's there. They're a dysfunctional mess because of hardcore drug use. What I'm saying is we have to do something about that. That is, I want to, I don't, if we could consistently get sheriffs to, judges to sentence people to actual jail time under the existing framework, sheriffs to have the capacity and ability to hold people along those lines and not simply release them because a misdemeanor defendant or a misdemeanor inside of a county jail, the sheriff has all these competing things going on in terms of capacity, in terms of who they can be housed around, in terms of lawsuit liability, what happens to that person should they become injured, assaulted by a felon, all of those types of things. So the sheriffs are in this difficult position where they're constantly within the classification system that they have to follow. They're trying to decide, do I let this person out? Do I keep them out? Whatever. And in most Los Angeles, one third of the people committing crimes in the state of California, in Los Angeles County, if you get sentenced to six months on a jail, I don't know the exact number as of right now, it varies, you are not serving very much time. You will be in perhaps for a couple of days. And Prop 36 won't fix any of what you just said. So you just listed off a whole bunch of problems with incarcerating people in county jails. Sounds like there's financial concerns, other concerns, but Prop 36 won't fix that. In other words, if someone flunks out of the treatment mandated felony program that Prop 36 proposes, they're going to go to prison and there's no treatment for them in prison. There's not even AA or NA for them in prison. And so you're kind of saying that it's difficult to incarcerate people. And this is kind of what I'm on about, is using the criminal legal system is going to be one of, so this is where we agree. We want people who have fallen on hard times. We had a worldwide unprecedented pandemic in 2020. To me, that's at least a contributing factor, if not the reason that we have increased homelessness. Or certainly contributed to it. Absolutely. Folks that were on a lower lung hanging on for dear life with their housing and they lost their job or whatever, or their job was reclassified or all the things that happened, they're now on the streets, right? And all of those people, right now, there's 22 counties that don't have a residential drug treatment program. So what's going to happen? There's 25 counties that don't have a parole office or a parole agent assigned to them, yet they managed to supervise them. So yes, I agree, and I've heard the governor talk about that. The governor knows that he supported Prop 47. We drafted Prop 36, all seriousness, we drafted Prop 36 as a balanced approach to looking at this, trying to deal with this problem, to have an incentive to bring people back into custody as a threat, as a threat or a hammer, whatever you want to call it, a stick to say, go to rehab. The pushback that we got when we first floated the language of Prop 36 from the more conservative DAs and some, you know, to use that side of it was, this isn't tough enough. We need something a lot tougher than that. It's like, this is the reality is we're in the state of California. We hoped to have the governor embrace Prop 36, just like Mayor Mahan, San Jose, city of San Jose, Mayor Mahan, a progressive Democrat who came out in favor of Prop 36. He is on the streets, seen it for himself and says, we have to do something different. Prop 47 wrecked the city of San Jose. It wrecked San Francisco. It created this environment where people believe there will be no consequence for their actions. And we need to bring back a consequence of some kind. Yeah. So you and I agree on this in terms of getting folks help and having compassion for our fellow human beings who are folks that have had to steal to subsist, talking about shoplifting and using drugs and are addicted. The most expensive way to go about it is to use the criminal legal system to do that. So that's sort of like, there's a bit of a sort of a myopia, like we have to do it through the criminal legal system in order to achieve those ends. And talk about who's supporting Prop 36 and who's not. So the Retailers Association of California has withdrawn their support for Prop 36 because of the laws that Governor Newsom just signed in terms of dealing with organized retail theft. So just to be clear, the organized retail theft was like groups of people that are going into stores and some folks may have seen videos about that, et cetera. Recent ones. Yeah. Well, that's already, well, that's been a felony since 2019. And then Governor Newsom just signed some additional laws that are increased punishments. We're not, Prop 36, we're not talking about that. We're talking about increasing punishment. Prop 36 is talking about increasing punishment for shoplifting, right? So again, the person that steals $25 of food to subsist is potentially facing a felony. That's something that I had to deal with when I was starting out as a public defender. I had folks who were charged it was called petty with a prior. You had a petty theft conviction, prior conviction as a misdemeanor. And then the second one was a felony. And I had folks go off to prison for 16 months or two years. This is back in the late 1990s, early 2000s. And those folks literally had stolen something, a bottle of alcohol from Safeway. You've seen all the cases. We're talking about just shoplifting folks to subsist. When counties and folks that run municipalities have gotten wind of what exactly Prop 36 is, which is an unfunded mandate, and we're going to lose all of the grant money for all the community programs, the trauma recovery centers, the funding for truancy programs, the funding for rehabilitation, the funding for housing that Prop 47's Safe Neighborhood and Fund Grant Program supplies, these municipalities are voting to not endorse Prop 36. My hometown of San Diego, they realize there's going to be over $150 million shortfall in San Diego. The Board of Supervisors of San Diego just voted not to endorse Prop 36, as did the Board of Supervisors for Los Angeles County. So folks that are in the business of helping run municipalities and know exactly how this is all going to work, they're all voting no on it. I think it's important for viewers to understand that. Sure, solving homelessness, it's a great idea. Reducing drug addiction, absolutely laudable idea. Not having rampant theft by organized groups, great idea. But we're addressing all of those issues bit by bit, and Prop 36 won't change any of that if it's implemented. Well, so you're addressing it. The governor of the state of California has said consistently for the last five years, homelessness is his top priority. His policies are the policies that you're talking about. It has gotten worse, not better. So for five years, it has gotten dramatically worse. But it didn't start then. It started back with Prop 47 and it's gotten worse over a period of time. So it's like when I hear that it's like, well, we're working on it. We're going to do that. It's like, you know what? You have been working on it. Your policies did not work. LA, and I don't know about San Diego, the Board of Supervisors, I do know Summer Steffen very well, the DA there. She's very much a moderate and very much in favor of Prop 36 because she's seen the same thing I have. I don't want people who are drug addicts, who are mentally ill, I don't want them in jail or prison. I also don't want them dying on the streets, which is what happened. Look at the population, the studies that have gone into in terms of what's happening in cities like Sacramento. The number of people that are dying while homeless, and 50% of them roughly are drug addicts. When they die, they're dying, something relate either for a drug overdose or something like that, or connected to it, I guess is what I should say. That is the problem. And we keep dumping more money into homelessness. The governor's solution to everything is to throw money at it. He vetoes a bill that required an audit of how we're spending the money on homelessness. I quoted the one, I think it's very reliable number to say it's in excess of $24 billion in the last five years being spent on the homelessness problem. And it keeps getting worse because the policies are simply misguided and wrong. In the cities of California, housing costs have exploded over the last 10 years. And so when you talk about folks that are living on the streets, I don't think it's all due to the fact that folks are addicts. You talked about visiting homeless encampments, this kind of thing. I think we need to understand that the unhoused population in California, they're not all drug addicts. There's folks that are simply down on their luck, et cetera. And so the idea that there's this causal relationship between drug use and homelessness, yes, some folks that are unhoused are struggling with drug use. But in California, it's become an exceedingly expensive place to live. Prop 36 is not going to change all of that. Prop 36 is being offered as a magic cure-all to all of these problems, which are very complex. Homelessness, drug addiction, et cetera. It's an unfunded mandate. There's not a single dollar that's behind this. And when this gets passed, if it gets passed, the very next session, Vern and other DAs are going to go to the legislature and say, give me more money. Sheriffs are going to say, go to their board of supervisors, give me more money because the rates of people going in jail and prison is going to go up. And we've already tried that in the 80s and 90s. And it didn't work. And there's no reason that we should go back there now. Matt Sodorosan with the Public Defender's Office from San Francisco, it's great to have you on. Thank you for having us. Vern Pearson, District Attorney of El Dorado County, it was great to have you on. It was a fantastic conversation for our audience. Thank you. Thank you. Yeah, thanks for having us.