A California Sheriff And Prosecutor Want To Jail Homeless People. Their Plan Is Unlawful.

In March 1966, Senator Robert F. Kennedy came to the small impoverished town of Delano, California, in Kern County to hold a Senate Migratory Labor Subcommittee hearing. At that hearing, Sheriff LeRoy Gaylen, with his 10-gallon Stetson hat on the floor beside him, testified about his office’s recent arrest of 44 United Farm Workers strikers who were threatened by strikebreakers.

“How can you go arrest somebody if they haven’t violated the law?” Kennedy asked. “They’re ready to violate the law,” Gaylen answered. Slamming the table for emphasis, Kennedy replied, “Can I suggest during the luncheon period of time that the sheriff and the district attorney read the Constitution of the United States?”

In the 53 years since that hearing, it seems that neither the Kern County sheriff’s department nor the district attorney’s office has taken Kennedy’s suggestion.

In September, Sheriff Donny Youngblood and District Attorney Cynthia Zimmer announced that they were considering addressing Kern County’s lack of low-income housing and healthcare by charging homeless people and those who have substance use disorder with possible misdemeanor drug possession and trespassing, and jailing them. Zimmer has already spoken to Kern County Superior Court judges about her office’s plans, according to the Los Angeles Times. 

Prosecuting people because they have a substance use disorder would violate the Constitution. The U.S. Supreme Court held in Robinson v. California that doing so violated the Eighth Amendment’s proscription against cruel and unusual punishment. 

More important, Youngblood and Zimmer ignore case law from their very county. In 1975, the California Supreme Court ruled in Murgia v. Municipal Court that a case can be dismissed if the prosecution intentionally discriminates against defendants.

Because it is often extremely difficult for defendants to make that case, Youngblood’s and Zimmer’s statements to the press are gold to future defendants: They have publicly announced their intention to engage in discriminatory prosecution—to prosecute people because they are homeless or because they suffer from a substance use disorder. Their sheer incompetence in stating that they intend to act unlawfully is as shocking as it is welcome. They are true heirs to Sheriff Gaylen.

The six defendants in Murgia were all United Farm Workers members, like the strikers in 1966. They were charged with minor offenses including driving without a license, disobeying a court order, malicious mischief, and reckless driving—all of which occurred while the workers were engaged in union activities.

Prior to trial, defendants filed motions for dismissal. They argued that the charges against them were part of a deliberate, systematic pattern of discriminatory enforcement of the state’s penal laws against UFW members and supporters, executed by Kern County District Attorney Albert Leddy and the sheriff’s department. This discriminatory prosecution violated their right to equal protection, they argued.

The Murgia defendants also filed a discovery motion, supported by over 100 affidavits, seeking to obtain evidence that law enforcement officials had discriminated against them. The bulk of these affidavits concerned the sheriff’s deputies. UFW members alleged that deputies not only failed to protect them from assaults by the agents of growers, Teamsters, and “private security groups,” but also encouraged such conduct. Sheriff’s deputies used excessive force, brutality, and racial slurs against UFW members, the affidavits said. They unjustly arrested workers, then treated them brutally in jail. Other affidavits made clear that the district attorney’s office was intimately involved with the deputies’ war against the UFW members and even, shockingly, acted as counsel for the growers in their fight against unionization.

(Disclaimer: My parents were UFW organizers. They were physically threatened, including once when shots were fired into our house, nearly killing my sister. My parents certainly did not bother to call the Kern County Sheriff’s Department to report any incidents. Lupe Murgia, the lead defendant in this case, is my godfather.)

Neither the sheriff nor the district attorney ever disputed the truth of the affidavits. Rather, they claimed that the UFW members were not entitled to discovery to prove their claims of discriminatory prosecution because there was no rule against it. The municipal court judge agreed. The state Supreme Court, however, unanimously disagreed.

“Neither the federal nor state Constitution countenances the singling out of an invidiously selected class for special prosecutorial treatment,” the court wrote in its opinion. “If an individual can show that he would not have been prosecuted except for such invidious discrimination against him, a basic constitutional principle has been violated, and such a prosecution must collapse upon the sands of prejudice.”

Since Murgia, criminal defense attorneys have moved to dismiss charges based on discriminatory prosecution. It has been successfully used when police departments and district attorney’s offices engaged in the discriminatory prosecution of gay men for “lewd conduct,” or when prosecutors targeted a man because of his medicinal marijuana activism. However, it is very difficult to show that the prosecution acted with the intent to discriminate against a particular person or a group of people. 

But Youngblood and Zimmer have stated up front how and why they intend to discriminate. Knowing this, judges must uphold their constitutional oath and dismiss any prosecutions that may result from their plan to “address” homelessness. Attorney General Xavier Becerra, too, must decline to defend any resulting convictions. 

The threat to arrest the poor for being poor is merely the latest abuse of power in Kern County. It has the highest rate of summary executions by police officers in the nation. A Guardian US series found that the district attorney has not filed murder charges in those cases nor investigated them, leaving it to the shooters’ colleagues in law enforcement. Similarly, some deaths in Kern County jail have gone uninvestigated and unprosecuted, as have some sexual assaults. Youngblood has also instructed an employees union to execute people rather than merely shoot and wound them because deaths result in lower civil judgments. 

Extensive investigation has been done over the years detailing this abuse and yet nobody in a position of power in Kern County has been held to account.

On the way to Delano, Kennedy reportedly asked an aide, “Why are we going to California?” After touring Delano, witnessing the treatment of farmworkers in the fields, and hearing of their treatment by law enforcement, however, he knew exactly why he was there. These workers and activists became the core of Kennedy’s organizing movement in Los Angeles and won him the California primary. He is still revered in a way he would not be were it not for that day in March 1966. 

But who will take the place of Kennedy? What person or which people in power in Sacramento will come forward now and stand against the abuse of power from law enforcement still endemic in Kern County? To those who would consider taking on this rogue law enforcement establishment, I assure you, while your reward may be great in heaven, it will also certainly be great in this world.

Kate Chatfield is a senior advisor for Legislation and Policy at The Justice Collaborative. The Appeal is an editorially independent project of The Justice Collaborative, which is a fiscally sponsored project of Tides Advocacy.