“If we don’t think we’ll get an appropriate sentence in state court, we’ll seek an appropriate sentence in federal court.”
Under the new approach, San Jose detectives, working with local prosecutors and the FBI, will more routinely consider certain crimes when a gun is used — regardless of whether it’s fired — for federal prosecution. At the federal level, mandatory minimum sentences are significantly longer, and served in out-of-state detention facilities.
“There are loopholes in the (state) system,” San Jose police Chief Eddie Garcia said. “There are individuals released back into our communities arrested with loaded handguns or selling large quantities of meth. If federal agents can help us take these criminals off the street, we’re going to use that tool.”
The new strategy centers on four specific crimes: armed robberies, armed carjackings, felons arrested for possessing handguns, and drug trafficking.
Santa Clara District Attorney Jeff Rosen, whose office normally prosecutes such cases, is on board with the new tactic and notes his team already meets with federal prosecutors over where cases should be tried.
“We view gun crimes very seriously. With felons who possess loaded guns, I consider that a violent crime because of the potential for serious harm,” Rosen said. “If we don’t think we’ll get an appropriate sentence in state court, we’ll seek an appropriate sentence in federal court.”
While they have previously voiced concerns about a criminal-justice changes over the past decade that reduced state incarceration — to fulfill a U.S. Supreme Court order — Garcia and Rosen specifically mentioned Proposition 57, an initiative California voters approved in 2016 that gives nonviolent offenders a chance at early parole and more opportunities for early release if they successfully complete rehabilitation programs.
Advocates of Proposition 57 and related policies, who assert they are bringing equity to a criminal-justice system that historically has been unfairly punitive to minorities and poor people, see the move toward increased federal prosecution as a defiant act.
“California has rejected a failed model of mass incarceration, which has disproportionately impacted communities of color,” Santa Clara County Assistant Public Defender Damon Silver said in a statement. “We hope the public and the counties’ will to reform our justice system isn’t hijacked by our federal government.”
Mayor Sam Liccardo, a former federal prosecutor, echoed Rosen’s contention that the San Jose Police Department’s practice is simply using an already available path in response to changing circumstances.
“There’s nothing new under the sun here,” Liccardo said. “What’s changed is that we’ve seen a rollback of state law protections that have created unintended consequences.”
The office of Gov. Jerry Brown, who heavily advocated and promoted Proposition 57, declined to comment on the San Jose policy.
Garcia referenced a few cases — taking care not to identify specific offenders — as examples of gray areas his department has encountered. They include a man convicted of hiding and then selling a gun used in a gang shooting in 2010, who later left a loaded handgun in a car he abandoned during a traffic stop. He served four years of a 15-year sentence in part because he did not fire the gun. The chief also mentioned a similar case in 2012 in which a man convicted of distributing cocaine and carrying a gun served 2 years of a 12-year prison sentence.
“We’re looking for those really violent actors who are going to be such a problem in the community,” said John Bennett, special agent in charge for the FBI San Francisco division. “We want to be very surgical with this. This is not for your average offender on the street.”
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