In a recent op ed, UC Berkeley Dean Erwin Chemerinsky criticized the legal challenges filed against SB 1391 by multiple District Attorney Offices in California. These legal challenges were based on the grounds that the legislation was an unconstitutional amendment of Prop 57. As detailed in a letter from Santa Clara County District Attorney Jeff H. Rubin, those challenges were made because the legislature amended a statute created by the initiative process. California law prohibits legislative amendment of statutes created by initiative unless the initiative permits such amendment; otherwise an amendment or replacement of an initiative statute requires a new vote of the citizens via a new initiative.
Prop 57 stated its purpose of balancing the interest of public safety with the interest in the rehabilitation of juveniles. This interest, it stated, would be served by requiring “a judge, not a prosecutor, to decide whether juveniles be tried in adult court.” Ballot arguments in favor of the initiative reiterated that claim. As Santa Clara County District Attorney Jeff Rosen noted, when initially submitted, Prop 57 limited prosecution of juveniles to those age 16 or older but was revised after public comment (and before being placed before voters) to specifically include 14 and 15-year-olds as subject to prosecution in adult court. Finally, the initiative changed the statutes in the Welfare and Institutions Code to expressly authorize prosecution of 14 and 15-year-olds in adult court for specific crimes if transfer to adult court was approved by a judge.
Against this backdrop of express voter will, SB 1391 eliminated this provision of Prop 57 by prohibiting the prosecution of any 14 or 15-year old in adult court. This legislative action is clearly inconsistent with the intent of Prop 57, as demonstrated above. Voters recognized that some crimes required accountability in adult court.
In the face of this clearly expressed voter intent, Chemerinsky begins with the false premise that SB 1391 is a “common sense” and “desirable” law. The surviving family members of those murdered by a 14 or 15-year old, such as Oliver Northrup, age 87 and his wife Claudia Maupin, age 76, who were viciously stabbed to death, disemboweled and mutilated by a 15-year-old, would certainly disagree that a law requiring such murders be prosecuted only in juvenile court with a required release from custody by age 24 was either “common sense” or “desirable.”
Chemerinsky’s fact-free argument was followed by various false assertions. Among them, Chemerinsky claims that prosecutors who have raised legitimate challenges to the constitutionality of SB 1391 have “manufactured” their legal challenges when, as noted above, serious questions about the legislative amendment of an initiative have been raised. He rails that prosecutors are attempting to substitute their own policy preferences for the democratic process, when, in fact, the democratic process was the enactment of Prop 57 by voters. In contrast, SB 1391 was the product of the policy preferences of certain legislators. Chemerinsky then complains that the prosecutor challenges are a “cynical move with no legal basis,” shockingly (he is a law professor, after all) ignoring the California Constitution, the Victims Bill of Rightsand well-established case law which form the basis of the legal challenge.
In the world view of Chemerinsky and his paternalistic ilk in the legislature, anyone who attempts to interfere with their usurpation of the legislative process is motivated by ill intent. None should dare to challenge the eternal wisdom of our elected officials. Yet challenging our elected officials is the core of the democratic process. Even when done by other elected officials.
To conclude with an ironic quote, it is Chemerinsky who said, “The Constitution is no more than words on old parchment that is kept under glass unless there is the power of judges to enforce it.” As the professor should know, the court’s power to enforce the constitution must be predicated by a legal challenge to place the issue before the courts.Fortunately, in California, the courts, and not pontificating law school deans, get to make the determination of whether the legislature violated the law.