Prop 47: The Full Employment Act for Solo Appellate Defenders

By Paul Katz

Passed by California voters in November 2014, Proposition 47 provides that various theft and drug offenses can no longer be charged as felonies. The law also allows defendants with prior felony convictions for those offenses to have them reduced to misdemeanors. These changes have reduced the state’s prison population and saved millions of taxpayer dollars.

Ambiguities in the law have also caused a bumper crop of appellate cases. These cases have mainly involved the law’s retroactive application to defendants who were convicted of felonies possibly covered by the law before its passage. For instance: Can vehicle theft be covered by the law even though the law doesn’t specifically list that code section? Or can a defendant eliminate an enhancement based on a prior felony conviction if that underlying conviction has been reduced pursuant to the proposition? Each of these questions—and a host of others—affect thousands of criminal defendants.

There have already been about 2,000 Court of Appeal cases involving Proposition 47, about 10 percent of which have been published.

This proliferation has led several Court of Appeal Justices to dub the proposition as the “Full Employment Act.” There have already been about 2,000 Court of Appeal cases involving Proposition 47, about 10 percent of which have been published. The California Supreme Court has also granted review in numerous cases to resolve these outstanding issues—and has also held scores of Court of Appeal decisions in abeyance until those issues are resolved. Because the state’s top court has issued only a few Proposition 47 decisions thus far, many pending questions remain. The ripple effects of the two-and-a-half-year old law, then, are still being felt today in the state’s appellate courts.

And behind the vast majority of these cases are state-appointed solo practitioners who represent criminal defendants on appeal. These “panel attorneys,” who are paid an hourly rate by the state, act as independent-contractor public defenders at the appellate level. Once the Supreme Court resolves the outstanding Proposition 47 questions, though, these cases will subside. But it’s likely that future voter-enacted laws affecting criminal defendants will keep appellate courts—and panel attorneys—busy in years to come.