3 Strikes Thoughts - I'm Baaaaack!!!

Alright, I know it's been forever since I've posted, I'd like to claim that I've been exceedingly busy (I've been a little bit busy), or that I've had writer's block (I haven't), I've been mostly preoccupied - by the election, and by the possible ending of Public Defender Dude and the beginning of Private Defender Dude. I was thinking of not saying anything (and I've done a good job of that), but ultimately, this site is a catharsis at times as well, so I'll out myself in that respect.

Before I go into that (a post later this week), I want to talk about Proposition 66 in California, the proposition to amend 3 strikes. SoCalLawBlog is having an online symposium about Prop 66, and I think much of the press going out about it is distorted against it (especially by talk radio in California - no surprise there), so I figured I'd weigh in. This is going to be a thick one, so, here goes.....

California's 3 strikes law was passed first by the legislature in 1994, and then passed by the electorate as an initiative (making it almost impossible to amend later in the legislature) at the end of that same year. The 2 laws are 99% the same. The only amendment to the law came in the form of Proposition 21, the Juvenile Justice bill in 2000, which added numerous crimes to the list of violent or serious felonies.

As the law now stands, it works like this: If you have been convicted of one enumerated felony ("serious" or "violent") and you pick up any new felony, your sentence is doubled, and you are not eligible for parole until you have done 80% of your sentence (inmates generally are eligible for release after serving 50% of their sentence). If you pick up a new felony and have 2 or more prior "serious" or "violent" felonies, you sentence is tripled, or you get 25 years to life, whichever is greater. 25 years to life means you are not eligible for parole for 25 years, and only then after going through a lengthy and uncertain parole process (very few lifers are released each year, but for at least another 15 years, there will not be any lifers facing parole who committed non-serious non/violent offenses, so who knows what will happen in another 15 years).

By comparison, in California, 2nd Degree murder is punished by 15 years to life, 1st degree murder is punished by 25 to life, and special circumstance murders are punished by life without parole (LWOP) or death. Kidnapping for robbery, rape or ransom is "simple" life (generally, eligible for parole in 7 years), as is attempted 1st degree murder.

All "strike" sentences are meant to be fully consecutive, so if you write 2 bad checks with 2 strike priors, your presumed sentence is 2 consecutive 25 to life sentences (parole eligibility unknown - presumably you have to finish your first 25 to life sentence, which no one has done yet, and then do your second one).

Now, where the rubber meets the road - what are strikes? Ostensibly, just about every bad crime you can think of is a strike - rape, robbery, murder, kidnapping, assault, child molestation, and about 40 others. In 2000 several new charges were added - criminal threats (this includes things like saying "come here again and I'll kill you," it used to be just a misdemeanor, but was later made a felony, and then a strike), intimidating a witness, and any crime done for the benefit of a gang (from as serious as murder, to as mundane as graffiti).

While most of the crimes on the list are truly terrible crimes (within the pantheon of crimes, that is, obviously just about all crime is bad), the bulk of the cases I get involve strike priors that are not that bad. Prior to 2000, we used to frequently plead people to criminal threats under the theory that the case was very weak, the prosecution wanted to give the store away, but couldn't get rid of the felony, so they'd offer this, which was generally considered "felony disturbing the peace." Many people would plead to charges which later became strikes, often to extremely low deals, as they never anticipated that this could later result in their getting a life sentence. One client of mine had a prior attempted murder that was reduced to an assault and released frmo jail immediately because it was clear that he had defended himself against gang members. 12 years later when he picked up that dope case, though, the facts of his prior case didn't matter, he had a prior strike. Had he considered that this may come back to him as a strike, he would have gone to trial, or worked out a deal that was not a strike, as it was clear he would probably have won at trial and he only plead to get out of jail right then and there (this doesn't go into the obvious moral and ethical issues raised by DAs offering great deals when they have people that are likely innocent). Residential burglaries are strikes, but the victims need not be home, and if you enter an underground garage for an apartment complex, that is considered a residential burglary, and a strike.

The fact that people pled to something that later became a strike has no effect on whether it is a strike.

Prior to 1994, the number of convictions out of one prosecution did not really matter, so frequently people would "plead open to the Court," which meant pleading to all charges instead of just one of them, in return for the Court cutting a year off of the person's sentence. After 1994, many people who did that came to regret it, as it made the difference between a 4 year sentence and life in prison after 3 strikes was enacted.

Offenses committed as a juvenile are strikes (except residential burglary, in an oversight by the drafters), even though the juveniles never had a right to fight their case in a jury trial.

There is no statute of limitations on strikes, one of my clients had robberies in the 1950s and 1960s and faced life for drugs in 1998. Most people with strikes tend to be older, as those who are younger still tend to be in custody. The vast majority of cases in which someone faces life due to strikes involves petty offenses - possession or sales of tiny amounts of drugs, petty theft, forging a small check, resisting arrest, driving a stolen car. Most of my clients prior strikes tended to be relatively minor affairs - stealing something from a garage, purse snatching, criminal threats, breaking into a house when no one was home (it used to be that for a 1st degree burglary someone needed to be home or it had to be at night).

Many counties have enacted policies in which they only seek life sentences when the new case is violent or serious. Some have not. Until 2000, Los Angeles, under DA Gil Garcetti, aggressively sought life sentences in all cases. His successor, Steve Cooley, made a policy only to seek them in serious or violent cases, but to seek the enhanced "doubling" sentence for nearly all cases. Use of strikes as a coercive plea bargaining method (which was always done under Garcetti - "take this deal or get 25 to life if you lose) was supposed to end under Cooley, it has to a large extent, but not completely and not everywhere in the county.

Proposition 66 seeks to make 3 strikes somwhat like Cooley enforces it, but even less harsh. Prop 66 would only apply strike priors to a new offense that is either serious or violent. Also, you could only get 1 strike per case (unlike now, when some people get all of their strikes from one case decades ago). Also, a few of the more recently added "serious" or "violent" felonies would be removed. These include criminal threats, intimidating a witness, commission of ANY offense for a gang (in contrast to serious or violent offenses for a gang, which would still be a strike), and residential burglaries where no one was home.

Prop 66 would allow for resentencing (and likely release) for people serving life sentences for non-violent/non-serious offenses that would no longer be eligible for life sentences under the law. Opponents of Prop 66, like California's DA association, contend it would also allow the far more numerous people sentenced as "2nd strikers" (or those with only 1 strike prior serving just doubled, not life, sentences) to be released. However, the act does not say that, even though there is an argument that this should happen under equal protection. You can rest assured that the DAs arguing that all of these people WILL be released under Prop 66 will be arguing like crazy that, if the law passes, it says no such thing about "2nd strikers" in opposing their release. But hey, no one has ever said they weren't duplicitous in the past.

The last provision of Prop 66 was pure marketing genius, the proponants realized that as long as they could claim to be tough on crime, perhaps they could get this to pass, so they doubled the sentence for one child molestation section. Since that section rarely is charged alone, and most people charged with it also face life sentences on other counts, it really has little practical effect, but it allows them to call this a "Child Molestation Punishment" proposition as well. Absolutely genius (just like the Juvenile Justice bill that added all of these adult strikes that had nothing to do with Juvenile Justice).

My thoughts are as follows: I think that giving life sentences to people convicted of non-violent offenses is violent in and of itself. The message is spread far and wide - your life (as a criminal) is worth a slice of pizza, or a forged check, or a rock of cocaine. When you diminish the value of criminal's lives, they will surely respond by diminishing the lives of their victims. How do you turn more petty thefts into shooting matches with the police? Tell them that they face life in prison if they're caught. One may argue "not all of them have strikes." Guess what, most of these people have no clue what their records are, legally speaking. They don't know what strikes are, they find out when they get arrested. I've had dozens convinced that they had multiple strikes when they had nothing worse than suspended license convictions, and I've had plenty astounded to find out they had strikes from decades earlier. Many will be deterred from doing crime by fear of strikes, but we had better be very afraid of those who will not. As we ratchet up the potential punishments, we had best be prepared for ever more horrific actions from those prepared to continue their lives of crime. This doesn't mean we shouldn't punish, we should, but we need to practice proportionality. We expect it from our criminals, they should expect it from society.

I am ambivalent about the provision that multiple strikes cannot arise from the same case. In some cases that is correct. DAs have abused their ability to charge multiple strikes from one incident. Thus, someone robs someone with a knife, they have done a robbery (1 strike) and an assault (another strike). This is only one action, and it is only through creative charging that it becomes 2 strikes. That is wrong, the action was violent, it is a strike. If they do 2 separate violent actions, that should be 2 strikes. So, if they hold up 2 separate people on separate incidents, then that should be 2 strikes. I think it could've been worded differently, but if separate strikes are so important, then DAs can simply charge people for the separate actions on separate complaints. There is no problem doing this.

All in all, this is needed reform. It is absurd to fill our prisons with older, non-violent petty thieves who have violence in their (often) distant past. It is about time something like this passed, and it could only pass through an initiative (something I think are overused and poorly done) because it was originally passed by initiative, and thus nearly impossible to amend.