How Does One Go About Changining or Amending California Law?
May 17, 2012 5:12 PM   Subscribe

A good friend of my wife lost her brother in a vehiclular hit and run. The accused was convicted of felony hit and run resulting in death. At sentencing it was discovered that felony hit and run resulting in DEATH falls under the same law/statue as felony hit and run resulting in INJURY and so the felon was sentenced to only four years in prison, three with good behavior.

She wants to have this law changed so that perpetrator can be sentenced more appropriately. Simply put, so the penalty fits the crime.

I think that here in California, she can start a petition and if she gets enough signatures it will go to a state wide vote.

Is this true? If not, how can she go about changing this law?

FWIW, I cannot disclose or discuss anything more about the case. What we really need to know is how to pursue this endeavor.

Many thanks in advance!
posted by snsranch to Law & Government (26 answers total)
In my experience, a good place to start would be simply by talking to her state legislator (ie: whomever represents her town or district in the CA state assembly). The petition process is long and time consuming, wheras simply convincing her state rep that this would be a good law, and having a personal story to tell, would be an easier path. The state rep then submits a bill, your friend and the rep might have to talk to some legislators ... it will take some time, but all in all an easier path than the signatures.

My condolences to your friend.
posted by anastasiav at 5:15 PM on May 17, 2012 [6 favorites]

I think that here in California, she can start a petition and if she gets enough signatures it will go to a state wide vote.

Is this true?

Yes, it is. However, you're talking about 5 percent of the population providing signatures -- nearly 2 million people.
posted by Cool Papa Bell at 5:17 PM on May 17, 2012 [1 favorite]

Excuse me, I read that wrong. It's "5 percent of the number of people who voted in the most recent election for governor." That would be significantly less than 2 million, as obviously, not everyone in the state is eligible to vote.
posted by Cool Papa Bell at 5:19 PM on May 17, 2012

You can't pass a law and then convict someone of breaking that law afterwards, that would be ex post facto (after the fact).

She can try changing the law to convict others in the future.
posted by Neekee at 5:19 PM on May 17, 2012 [30 favorites]

And the prosecutor was probably or should have been aware of the sentencing for the crime charged, whether or not he told your friend.
posted by Neekee at 5:21 PM on May 17, 2012

You should probably start with an advocacy group rather than with a legislator.
posted by SMPA at 5:25 PM on May 17, 2012 [2 favorites]

I agree that congressperson is probably the best first step.

I am almost 100% sure ballot propositions can't be used to set criminal laws

I'm almost positive this is wrong. Definitely can overturn criminal laws (see marijuana legalization prop), etc. This proposal is to change sentencing which is allowed and already one initiative for this election is on the ballot to do so.

I would think that would be a useful template since it is very similar. But it will be hard to get anything on the ballot without support from some related advocacy group since it will still require hundreds of thousands of signatures.
posted by wildcrdj at 5:39 PM on May 17, 2012 [1 favorite]

(Specifically, it needed 504,760 signatures so thats probably the number you're looking at, which is why a legislative approach might be better).
posted by wildcrdj at 5:40 PM on May 17, 2012

How long is the sentencing period for involuntary manslaughter? I suspect the hit and run aspect here is not as important in sentencing as the intent of the driver. If the driver intended to hit and run I suspect the sentencing would be much longer and the charge would have been different.

If this is true, the sentencing guidelines for involuntary manslaughter might be the place to start - it might also draw a larger audience (and a greater potential for visibility) than focusing on hit and run specifically.
posted by NoDef at 5:41 PM on May 17, 2012 [1 favorite]

I am almost 100% sure ballot propositions can't be used to set criminal laws

This is wrong. Here's an example. Here's another. And another.
posted by Cool Papa Bell at 5:43 PM on May 17, 2012 [5 favorites]

Also, though I'm not a lawyer, I am almost 100% sure ballot propositions can't be used to set criminal laws. Otherwise we'd have absurd things like people wanting to make being gay an actual crime punishable by jail time.
You should reduce your certainty, because that's incorrect. For example Proposition 18 in 2000 made "lying in wait" a death penalty eligible murder circumstance. That same year the state passed Proposition 19 which increased the penalty for 2nd degree murder of a BART or CSU officer. Any aspect of the California code can be modified in this way.
posted by Lame_username at 5:43 PM on May 17, 2012 [1 favorite]

If the way she wants to respond to this tragedy and to honor her brother's memory is to work for changes in the laws so that future perpetrators of the same crime will receive more rigorous minimum sentences, then that's her path and it's ridiculous for any of us to second-guess it.

Agree with SMPA that speaking with folks at relevant advisory groups is probably the best way for her to start. Another group to look at is Mothers Against Drunk Driving--even if the driver in this incident wasn't under the influence, the local chapter will probably have a lot of information about the laws relating to traffic fatalities, and about the state legislators most responsive to the concerns of the families of victims.
posted by Sidhedevil at 5:44 PM on May 17, 2012 [2 favorites]

Response by poster: She knows that this guys conviction and sentencing is a done deal. She just doesn't want others in the future to witness or feel the same injustice. From what I heard, even the sentencing Judge was flummoxed by the legal constraints and apologized for not being able to give a harsher sentence.

Thank you guys very much! I think you've provided enough information to get her on the right track.

MetaFilter: You guys NEVER let me down!
posted by snsranch at 6:00 PM on May 17, 2012

After reading up on the laws, I'm left wondering how much greater a sentence you could argue for. It only comes under the same sentencing (2-4 years) if it is "death or permanent, serious injury" where the second part means "loss or permanent impairment of function of a bodily member or organ." If it is not a serious injury, the punishment is only one year. And for comparison, driving drunk and killing someone in CA is sentenced to 4-10 years in prison.

To effect change, you would have to come up with a convincing argument that this particular sentence is inappropriate given other sentences for related crimes. Also consider that the law was probably amended to add the serious injury because someone other victim felt one year wasn't sufficient for permanent injury. What you see as an outrage is the solace of some other.
posted by smackfu at 6:13 PM on May 17, 2012 [3 favorites]

I agree with SMPA - you really want to find or found an advocacy group to do this. Its something that one person can lead, but not that one person can do on their own. It take an organization.

And I would not see this as a ballot initiative kind of thing - even if it is feasible - its something that would be much easier to do through a state legislator. I would start calling them and their staff. They would probably also know other organizations that are lobbying on similar issues like, as someone suggested, MADD.
posted by RandlePatrickMcMurphy at 6:15 PM on May 17, 2012

Something I'd do first is to look into what the law says killing someone in an accident while drunk vs. hit and run. If the sentencing is more aggressive for drunk driving then, basically, the law is telling you that if you've been drinking you should go ahead and flee - they won't spank you any harder and you just might get away with it. If that's the case, and sometimes that sort of moronic situation occurs, fixing that would be the logical way to frame reform.
posted by Kid Charlemagne at 7:27 PM on May 17, 2012 [1 favorite]

Sorry if this is too much of a derail, but would it be possible for the victim's family to sue the perpetrator? That is, criminal proceedings are done, but is it possible still to pursue an additional civil case? I recognize that this still won't make up for anyone's death, but it could at least give the victim's family *something* more.
posted by amtho at 8:03 PM on May 17, 2012 [3 favorites]

Another thing also for your friend to consider: this is California, where the prisons are bursting at the seams. She may want to take some time and really sort out what exactly she'd really like to see happen, and why, because lengthening prison terms in this environment is more or less a non-starter. At best you'll get an increase on paper, and they'll get out just as soon.

(And you can't effectively pay restitution, fines, court judgments, child support, or anything else working in prison industries.)
posted by SMPA at 8:19 PM on May 17, 2012

Sorry if this is too much of a derail, but would it be possible for the victim's family to sue the perpetrator?
Assuming that it is not time barred, a wrongful death suit is always an option. With a criminal conviction, the odds of getting a judgment are pretty good. The odds of collecting are another matter. California probably also has a victim's compensation fund.
posted by Lame_username at 8:42 PM on May 17, 2012

California State Senator Joe Simitian's There Oughta Be a Law
posted by Long Way To Go at 8:51 PM on May 17, 2012

Mod note: Some comments deleted. Sorry, guys, this is not the place to discuss your general thoughts on sentencing, etc.; the post is specific, so please limit answers to addressing the question asked. Thanks.
posted by taz (staff) at 11:10 PM on May 17, 2012

Consider other forms of punishment rather than prison, also. The punishment that fits the crime of killing someone through dangerous driving is to have your driver's license revoked for X years, or perhaps permanently if it ends up killing someone.

Also, quite agree your local state legislator(s) are the first place to start, and advocacy groups as well. Bicycle & pedestrian groups are often quite interested in finding the right penalties for dangerous drivers:
posted by flug at 11:58 PM on May 17, 2012 [1 favorite]

I think first talking to someone experienced in how and why laws are written the way they are would be the way to begin.

That said, I am sure that your argument presented as it is would be appealing to many California residents fond of the initiative process.
posted by pianomover at 12:16 AM on May 18, 2012

Nthing - a civil suit is the place to go - 2nding Bike/pedestrian groups. I used to be in one, and they're sometimes very organized and zealous about these kind of cases.

Before striking out on this quest, you might also research whether there were/are already harsher laws on the books. The prosecutor might well have accepted a plea deal for a lesser charge, or might have decided (rightly or wrongly) to charge the perp with a lesser charge than what they could have (for example, most states have an involuntary and/or vehicular manslaughter statute(s) that broadly cover(s) acts that are so negligent as to warrant criminal prosecution).

Keep in mind that regardless of how you slice it, this person did not commit a premeditated crime. Yes, it's heinous, especially the hit and run aspect, I'm not trying to downplay that. I was struck by a drunk driver while stopped at a red light myself - my car was totalled and, looking at similar crashes later on the internet, I kinda got a retroactive case of the heebies because I realized I could have been killed. So I'm not much on leniency on cases like this.

That said, I don't know what you think is fair, but life in prison or something like that is just not realistic.
posted by randomkeystrike at 6:13 AM on May 18, 2012

Your wife's friend may find inspiration in the story of Kim Schlau, whom I've met and can tell you is a damn fine person. After the state trooper who pled guilty to reckless driving and reckless homicide charges in the deaths of her daughters tried to collect workers' compensation from the state for the injuries he sustained in the crash that killed Kim's children, Kim succeeded in getting a bill passed in Illinois that prevents employees from collecting workers' compensation for injuries sustained while the employee was committing a crime.

Kim got it done by talking to her state rep, talking to her governor, talking to the media again and again, and basically not taking no for an answer from anyone. This of course meant telling her family's story over and over, which was hard. Your friend should be prepared for that.

(Kim also, by the way, has gotten a portion of highway dedicated to her daughters, created a scholarship in their honor, and now regularly speaks to police officers' associations about safe driving.)
posted by BlueJae at 8:12 AM on May 18, 2012 [3 favorites]

As others have said, you will have more success if you are clear what law you wish to be changed, and indeed if it's the law that needs to be changed at all.

From what you've said, the offender was convicted of failing to report the accident. Penalties for offences are not set in a vacuum: legislatures look at them in relation to other offences, to ensure they are proportionate compared to the type and severity of offending behaviour. If you can gather evidence from prosecutors and courts that penalties for this offence do not adequately reflect the harm it caused or the culpability of the offender, you may be able to make a reasoned case.

But bear in mind that this specific offence is not causing the death of another, much as you may feel it is. The penalty has to fit the offence as charged and convicted, not the crime you feel he has committed. By way of comparison, the maximum penalty for the equivalent offence in England is 6 months' custody. Still, that's not to say you can't go down the other route of putting political pressure on legislators, and that's where linking up with families and advocacy groups will be of benefit.

The other thing to bear in mind is that what you may actually want in practice is for him to have been charged with a different offence. So this may actually be an issue of operational practice by prosecutors rather than a case of the law being flawed. This may have been what the judge was getting at.
posted by greycap at 11:00 PM on May 18, 2012

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