I figure that I must be in a good mood today. I reach that conclusion based upon wholly objective indicia. In particular, earlier today, I read this opinion by Justice Willhite, and thought: "Wow. That's a wonderfully written opinion. It's not only correct, but the sentences are crisp, concise and clear. Well done."
This does not mean that I must be in a good mood because everything that Justice Willhite writes is, in fact, utter crap. Far from it. But I usually don't have that reaction to someone's writing, so it's somewhat unusual.
Still, that wouldn't be sufficient to convince me that I was in a state of 46-year old euphoria. But right after I read Justice Willhite's opinion, I read this one -- which also came out earlier today -- from Justice Werdegar and had the very same reaction. What are the odds that two incredibly well-written opinions would just so happen to be issued on the same day? Surely, it can't be the California judiciary. It must be me.
But then I got to footnote 9 of Justice Werdegar's opinion. At which point I realized that, no, it wasn't me. I'm my usual self. Because that's when the following thought crossed my mind: "This sucks."
Not the overall opinion, mind you. That's still really good. Just the footnote. Inexplicably, in the middle of an otherwise very good (and, again, correct) opinion, there's this huge stinker of an argument. Something that's just flatly wrong.
The central issue in the case involves a straightforward statutory construction issue. The Legislature passed a statute -- designed to cut down on prison overcrowding (and save $) -- that says that most prisoners are entitled to good conduct credits while in prison if they behave themselves, but that various inmates (e.g., sex offenders) can't. Simple enough. The complexity is that there's a different statute -- one that we use all the time -- that allows courts to "strike" various counts and/or allegations of a criminal complaint "in the interest of justice." Courts use that latter statute all the time to avoid the Three Strikes laws, enhancements, etc.
So the simple question is: Can courts do the same thing with respect to the good conduct provisions? For example, here, the defendant had been previously convicted of burglary. But when it sentenced him, the Court struck that provision (pursuant to its discretion) "in the interests of justice," which it was indisputably entitled to do. That same prior conviction, however, bars the defendant from getting good time credits. Is the court empowered to strike that prior conviction for good time credit purposes as well?
The California Supreme Court unanimously holds that the two situations are different. And I think that's right. Sentencing is different than good time credits. There's lots of judicial involvement in the former, and little in the latter. When the Legislature says that people with X can't get good time credits, courts don't have the power "in the interests of justice" to say that a defendant doesn't have X when he really does. Is there a tolerable argument to the contrary? Sure. But I think the better view, consistent with principles of statutory construction as well as institutional responsibility, is the one articulated by Justice Werdegar.
So given that I pretty much agree with everything Justice Werdegar says, what's my problem with footnote nine?
Rather than describe what she says there, I'll just quote it in full:
"Today local prisoners may earn day-for-day credit without regard to their prior convictions. (See § 4019, subds. (b), (c) & (f), as amended by Stats. 2011, ch. 15, § 482.) This favorable change in the law does not benefit defendant because it expressly applies only to prisoners who are confined to a local custodial facility 'for a crime committed on or after October 1, 2011.' (§ 4019, subd. (h), italics added.)
Defendant argues the Legislature denied equal protection (see U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) by making this change in the law expressly prospective. We recently rejected a similar argument in People v. Brown (2012) 54 Cal.4th 314, 328-330 (Brown).) As we there explained, 'the obvious purpose' of a law increasing conduct credits 'is to affect the behavior of inmates by providing them with incentives to engage in productive work and maintain good conduct while they are in prison.' This incentive purpose has no meaning if an inmate is unaware of it. The very concept demands prospective application.' (Brown, at p. 329, quoting In re Strick (1983) 148 Cal.App.3d 906, 913.) Accordingly, prisoners who serve their pretrial detention before such a law's effective date, and those who serve their detention thereafter, are not similarly situated with respect to the law's purpose. (Brown, at pp. 328-329.)"
On first glance, I thought that footnote made sense. But something about it struck me as funny, so I read it again. At which point I concluded that it couldn't be more wrong.
It's not that the result is wrong. It isn't. Any date limitation is inherently arbitrary. The Legislature wanted to further ease overcrowding (and, again, save $), but it only wanted to free so many people. So it decided to free those who committed future crimes rather than those serving time for past crimes. Some decisions in this regard would violate equal protection; e.g., releasing only people with last names starting with A through L. But the time limitation imposed by the statute isn't like that. It satisfies the rational basis test -- a test that is not very onerous at all.
So I agree with where the Court comes out. But not for the reason it provides. A reason that is flatly inapplicable.
It's true that it giving good conduct credits for people who had already served their time wouldn't serve the legislative purpose of encouraging good conduct for precisely the reason that Justice Werdegar identifies; i.e., they didn't know about the statute when they decided to be good. But that's not what the statute does. The statute doesn't say you don't get good conduct credits for time you already served. It instead says that even if you're still in prison, and even if giving you future good conduct credits for time you spend in prison in the future would encourage you to be good, we're not going to give them to you if you committed your crime prior to October 1, 2011. That's the potential equal protection violation. That's why the statute is arguably irrational: because it makes no sense to say that the guy in the next cell --who was convicted of the exact same offense as you were -- is entitled to get credit for being good but you are not. Contrary to Justice Werdegar's assertion, the incentive effects apply equally in both cases, to people committing offenses prior as well as subsequent to October 1, 2011. So say otherwise -- that people still in prison can't have their conduct influenced by the statute -- is simply wrong.
Now, again, I think that the equal protection challenge likely fails on other grounds. The Legislature might conceivably think, for example, that applying the statute only prospectively is a good idea not for incentive reasons, but rather to enable judges and prosecutors to know at the outset how much time the defendant will actually serve when deciding sentences and pleas. That's at least a possible basis for deciding to do what the statute does, and that's enough under rational basis. (I might add that, as a policy matter, it's somewhat bizarre to give people who commit future crimes good conduct credit but not those who committed past crimes; that seems to incentivize future crimes and diminish deterrence. But that's up to the Legislature. A potentially stupid statute is not an unconstitutional one.)
I still like this opinion. But how something like the argument in footnote 9 garners the assent of all of the justices -- and presumably the chambers staff as well -- is beyond me. Especially when its flaws seem so obvious (at least to me) even after only thirty seconds of reading it.
So I really think the court needs to revise footnote nine if it wants to be intellectually honest. We'll see if that in fact matters.
I was worried that I was getting irrationally exuberant. It's good to know that I'm instead as cranky at 46 as I was at 45.
