Have I mentioned before that I love my job? Only 10,000 times? Well, let me mention it again. So why am I leaving it in January? God only knows, I mean, I guess I have to try this new gig out to see if I like going private, and I'd be lying if I said that money didn't matter at all to me, so I guess I'll hope that I don't lose any of the great social and personal aspects of my job when I leave the office. But, I digress.
I'm meeting with the son of a client who's brought some stuff by for his dad's case. Client is facing 13 years for hitting his wife, his grown son is trying to help his dad out (the victim is his step-mom, but she can't be more than 10 years older than him). I'm in the office talking with the son, and while I'm there I get about 4 other calls related to work. A couple of DAs, and we discuss our cases, I posture to them how I'm going to kick their butts in trial if they don't back down, stuff like that. I also have a couple of clients or doctors call and I discuss the case. The client's son is still sitting there, watching the whole thing, mouth agape.
I finish about 20 minutes of calls and the client's son (a really cool guy who I just enjoyed hanging around with because I he was so interesting to talk to) says "you have the absolutely best job ever!"
I sort of grinned, and said to him, I really do. Afterwards I was thinking about it, and I don't think this is PD or private speaking, but I really do have a great job. It is so cool to have this responsibility given to me where people entrust me with their lives, and I can fight for them without concern for anything except helping them out (I guess that's sort of limited to PD life, as I'm going to have to be more concerned about money when I'm private). It's just a great job.
Civil lawyers out there who hate your jobs, take heed. This is the best job in the world.
Monday, November 29, 2004
Sunday, November 28, 2004
The Drug Scourge - Moral or Practical Problem?
From Catastrophic Victory:
For those of you who have HBO, and are addicted like me to just about every show they make, you are probably also fans of The Wire. I think this is just about the greatest show I've ever watched. Generally, it follows a group of Baltimore police officers (they were all at some time in the same unit, but have scattered over time), and a few different drug gangs in Baltimore.
In the present series, a Major who is in charge of the western district decided that he'd had enough of the idiotic cyle of policing and violence that he'd dealt with in trying to stop the drug trade in his district, a battle he realized he was losing. After having one more series of citizen complaints about the whole area being controlled by drug dealers who prevent people from leaving their homes safely, he finally decided on a radical solution. He found 3 neighborhoods in his district that were uninhabited, and he pushed all of the dealers in his district into those 3 neighborhoods (the local kids called it Hamsterdam, when one of the officers pushing them there mentioned Amsterdam and the dealers garbled it). The result, that area turned into hell, with every ill you could imagine in the inner city bunched up into one area with the police turning a blind eye to all except crimes of violence. The 95% of the rest of the district that he pushed them out of? Paradise by comparison. Citizens are writing letters thanking them, crime's dropping by 15% in just weeks, people are able to go outside in the middle of the day, everything is just peachy.
This got me thinking, I've been in favor of legalizing drugs for a long time, but here's the question that The Wire raised for me. Do most people believe that drug use is a moral or practical problem. Here's the difference. Murder, rape, robbery, theft, these are all moral problems. Whether or not you personally are victimized, all of society is hurt by those actions, and they are clearly a moral wrong any way you look at it. Therefore, if someone only murders, or rapes, or beats their wife in the privacy of their own home, it is still a moral problem.
What about drug use? Is that a moral problem, in that someone smoking a joint or shooting up in the privacy of their own home (and not doing anything else wrong in their life), or is that only a practical problem, in that practically, it leads to future moral problems? You see, if you ask the question about murder, one would never say we can't allow murder because of the practical implications: the practical implications are that a moral wrong is occurring that destroys the fabric of society. But, drug use? Can we say that the use itself is the evil society is trying to prevent, or it leads to evils we wish to prevent, like murder, rape, etc....?
If drug use is a moral problem, then there is only one solution, we must fight it like we fight other true evils like rape. But, if it is a practical problem, then it is like
traffic, or pollution, or drinking (and driving, which is drinking's big attendant problem). If it is a practical problem, shouldn't we find a practical solution, rather than a zero sum game solution that involves either winning completely, or losing completely? What if we compromised so as to reduce harm as much as possible?
If drug use is a practical problem, then the solution would be to try and reduce the problem as much as possible, not to go to war. Methods of reducing harm are so obvious, too, that it hurts to see us chase our own tails trying to "fix" things by doing the dumb stuff we're doing. Now, instead of being able to focus on moral problems, we've created a greater market for moral problems, and we focus greater attention on the practical problem of drugs than we do with the moral problems of true crime.
Clearly this could be a rallying point for liberals and conservatives alike. I just don't see how it can be considered to be a moral problem what people do in the privacy of
their own lives that doesn't specifically hurt someone else. Will we ever get real on this?
Friday, November 12, 2004
MSNBC - Scott Peterson convicted of murder
MSNBC - Scott Peterson convicted of murder
I told you so.....
It was a no-brainer, and all those who thought he'd walk, puuuleeeeese.
Not in the real world. He's not a celebrity, no special treatment. He's done.
It will be even tougher for him in penalty now since they argued he didn't do it. It's one thing to argue for mercy in that the homicide was accidental, and that's the issue in the case, or heat of passion, or insanity, or something where you are arguing mitigation in the case in chief, but at least where you admit the fact that the defendant did the action alleged (and the issue is intent or state of mind).
I told you so.....
It was a no-brainer, and all those who thought he'd walk, puuuleeeeese.
Not in the real world. He's not a celebrity, no special treatment. He's done.
It will be even tougher for him in penalty now since they argued he didn't do it. It's one thing to argue for mercy in that the homicide was accidental, and that's the issue in the case, or heat of passion, or insanity, or something where you are arguing mitigation in the case in chief, but at least where you admit the fact that the defendant did the action alleged (and the issue is intent or state of mind).
Wednesday, November 10, 2004
Prop 66 (3 Strike Reform) RIP
Well, I knew it was too good to be true. I couldn't fathom the state making 3 strike less severe, no matter what the polls suggested. In this day of right wing radio (and elections, for that matter), I didn't see how common sense would prevail over pure emotion and lies.
In the end, our governor, Arnold, stumped big-time for the end of 3 strikes. One of the best reasons I saw that prop 66 would pass was that there were so many big-money propositions on the ballot, including all of the Indian Gaming initiatives that Arnold opposed so much, I thought they would drown out prop 66 and it would slide under the radar. It did, for all but 2 weeks of the campaign. In the end, lies won out.
What lies? Well, Arnold went on wall to wall TV suggesting that 27,000 violent criminals, like rapists and murderers, would be released under prop 66. As I explained earlier, this is a complete fabrication. First of all, no one convicted (in the present offense) of a violent crime was eligible for release consideration, only people who may have that in their past (and it could be way in their past). The opponents of reasonableness found a few people who had done really bad things in the past, done their time, gotten out of prison, and now were serving time for minor offenses enhanced due to their prior convictions and alleged that "murderers and rapists" were getting released. Well, guess what, they were already released and weren't murdering or raping (that we know of, or yet, I guess they would retort), they were doing small time thievery or using drugs.
The other large lie was that 27,000 of these people were going to be released. A judge in Sacramento had already struck that language from their argument against the initiative on the sample ballot mailed out to voters. The true amount was about 4,000 (perhaps as much as 7,000) non-violent offenders would possibly be released under this law.
Ultimately, though, complex discussion has no place on 15 second ads (in a true testiment to the intelligence and honesty of our governor, he couldn't even come up with 30 seconds of lies, and had to restrict his ads to 15 seconds so as not to give too much information to the voters). I have TIVO, so I rarely watch commercials, but I was watching a rerun of Columbo (the greatest detective TV show ever) the night before the election and happened to stop and see an ad, so I looked out for them, and guess what, they were wall-to-wall anti-prop 66 ads. Sometimes I saw 2 or 3 ads per commercial cycle, they were so short they couldn't have cost that much to run. I'm sure that it was the same on other channels. I've always held that you could probably try to pass an initiative called "Tough on Crime, mandatory Dog-shit eating" proposition, and it would pass by virtue of the name. Hell, execute all murders, all felonies, all crimes, all traffic infractions, they'd all pass far as I can tell.
In the end, our governor, Arnold, stumped big-time for the end of 3 strikes. One of the best reasons I saw that prop 66 would pass was that there were so many big-money propositions on the ballot, including all of the Indian Gaming initiatives that Arnold opposed so much, I thought they would drown out prop 66 and it would slide under the radar. It did, for all but 2 weeks of the campaign. In the end, lies won out.
What lies? Well, Arnold went on wall to wall TV suggesting that 27,000 violent criminals, like rapists and murderers, would be released under prop 66. As I explained earlier, this is a complete fabrication. First of all, no one convicted (in the present offense) of a violent crime was eligible for release consideration, only people who may have that in their past (and it could be way in their past). The opponents of reasonableness found a few people who had done really bad things in the past, done their time, gotten out of prison, and now were serving time for minor offenses enhanced due to their prior convictions and alleged that "murderers and rapists" were getting released. Well, guess what, they were already released and weren't murdering or raping (that we know of, or yet, I guess they would retort), they were doing small time thievery or using drugs.
The other large lie was that 27,000 of these people were going to be released. A judge in Sacramento had already struck that language from their argument against the initiative on the sample ballot mailed out to voters. The true amount was about 4,000 (perhaps as much as 7,000) non-violent offenders would possibly be released under this law.
Ultimately, though, complex discussion has no place on 15 second ads (in a true testiment to the intelligence and honesty of our governor, he couldn't even come up with 30 seconds of lies, and had to restrict his ads to 15 seconds so as not to give too much information to the voters). I have TIVO, so I rarely watch commercials, but I was watching a rerun of Columbo (the greatest detective TV show ever) the night before the election and happened to stop and see an ad, so I looked out for them, and guess what, they were wall-to-wall anti-prop 66 ads. Sometimes I saw 2 or 3 ads per commercial cycle, they were so short they couldn't have cost that much to run. I'm sure that it was the same on other channels. I've always held that you could probably try to pass an initiative called "Tough on Crime, mandatory Dog-shit eating" proposition, and it would pass by virtue of the name. Hell, execute all murders, all felonies, all crimes, all traffic infractions, they'd all pass far as I can tell.
Wednesday, October 27, 2004
PD Dude No More?
Believe it or not, PD Dude may no longer be a PD before long. It's looking increasingly likely that PD Dude may be selling out to the highest bidder. At least the bid was high (it had to be in order to get me to reconsider what I had always considered the greatest job in the world). I'm still here, and will be for another 2 months, but it looks as if PD Dude will soon be Private Defender Dude pretty soon. I was considering keeping it a secret, and just keeping on as if I was still a PD, but hey, honesty is pretty important to me, so I'm coming clean. I guess that I'll always consider myself a PD at heart, but not in pocketbook or paycheck (or client base, I guess).
I think representing wealthier clients wil be a large change, for better and for worse. One of the things I've always loved about PD work is that I'm representing the underdog, I guess most of my clients won't be underdogs any more. On the other hand.... What other hand is there? Well, I'll probably still post as PD dude, if anything because I'll be doing the same type of work in the same locations, but it will just be for a different boss.
I think representing wealthier clients wil be a large change, for better and for worse. One of the things I've always loved about PD work is that I'm representing the underdog, I guess most of my clients won't be underdogs any more. On the other hand.... What other hand is there? Well, I'll probably still post as PD dude, if anything because I'll be doing the same type of work in the same locations, but it will just be for a different boss.
Tuesday, October 26, 2004
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.
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.
Wednesday, September 15, 2004
New Blog to Check Out
Check out the new blog Catastrophic Victory (named not only after Bush's phrase "catastrophic success" in the war in Iraq, but also after Bush's victory over Al Gore, and, for that matter, about the North's victory in the Civil War, which has given us our present political alignment).
There's a cool post on the state of the Axis of Evil, almost 3 years after Bush's speech. Here's an excerpt:
Check out the site, it's worth a read.
There's a cool post on the state of the Axis of Evil, almost 3 years after Bush's speech. Here's an excerpt:
All in all, it's good to see that the axis of evil is alive and well, perhaps
even prospering. Sure, Hussein's gone now, but Bush actually called Iraq the
axis of evil, and by all signs, Iraq seems to be more evil than ever. Our troops
die there at rate of a couple per day, terrorists have begun using it as a new
Afghanistan, as if our failures there didn't make the new Afghanistan almost as
hospitable as the old one. I'm sure that the neo-cons who have run our foreign
policy by political theory rather than political reality are thrilled with the
rhetoric, unfortunately, the rest of this country will be struggling with the
reality long after the neo-cons are a bad memory.
Check out the site, it's worth a read.
MSNBC - Stewart to start jail term as soon as possible
MSNBC - Stewart to start jail term as soon as possible
I'm all about admitting errors when I'm wrong, and I was wrong on this one. I really thought she'd never see a day in the clink, but, as Reagan said about arms for hostages, the facts have proved me wrong (of course, Reagan wasn't making a prediction at the time). She is continuing with her appeal, and I actually think that she has good issues for her appeal.
I've often thought, if I could be safe and financially secure, that a few months in prison wouldn't be that bad - catch up on the reading, have some alone time, you know, some people, good and bad, have found it a cathartic experience. People like Malcolm X, Martin Luther King, Adolph Hitler and others had time in jail to develop their thoughts and think in prison in a way that they never would have if they were dealing with life's daily give and take. Of course, our world has been made better and worse by that time away, I'd like to think I'd make it better.
Maybe that's what Martha's thinking, it's time to have some alone time. Let's face it, in a woman's minimum security prison, she's not going to face much, if any, danger. She'll probably be able to pay off people to keep her safe as well. Maybe she'll end up all the better by this time away.
I'm all about admitting errors when I'm wrong, and I was wrong on this one. I really thought she'd never see a day in the clink, but, as Reagan said about arms for hostages, the facts have proved me wrong (of course, Reagan wasn't making a prediction at the time). She is continuing with her appeal, and I actually think that she has good issues for her appeal.
I've often thought, if I could be safe and financially secure, that a few months in prison wouldn't be that bad - catch up on the reading, have some alone time, you know, some people, good and bad, have found it a cathartic experience. People like Malcolm X, Martin Luther King, Adolph Hitler and others had time in jail to develop their thoughts and think in prison in a way that they never would have if they were dealing with life's daily give and take. Of course, our world has been made better and worse by that time away, I'd like to think I'd make it better.
Maybe that's what Martha's thinking, it's time to have some alone time. Let's face it, in a woman's minimum security prison, she's not going to face much, if any, danger. She'll probably be able to pay off people to keep her safe as well. Maybe she'll end up all the better by this time away.
Tuesday, September 14, 2004
Los Angeles Times: L.A. Police Captain Gets Probation
This from Saturday's LA Times, how this stuff goes by without a peep from the public is beyond me: Los Angeles Times: L.A. Police Captain Gets Probation
I've said it before, and I'll probably say it to my grave. If you want to commit a crime and get away with it, put on a police uniform, because it gives you virtual immunity. I've handled a couple of these counterfeit cases before, and I remember how they worked. The industry would investigate the case, they'd tell the DA what to do, they'd tell the court what to do, and everyone would do exactly what they asked for. Most of the small-time people (like people who run clothes stalls at swap meets and things of the like) would not face much jail, but they certainly never got misdemeanors out of the cases.
Regardless, one of the essential calculations has been missed. Is the fact that a person is law enforcement a basis for a lower sentence or a greater one? I think that if they used their law enforcement position to further the crime, it should be a reason for more, not less, punishment. However, it appears as if it is routinely a basis to give people a pass. It just goes to show that there are two classes of citizen, most of us grunts, and those in blue who can do whatever they want. This is how a society slouches towards autocracy.
I've said it before, and I'll probably say it to my grave. If you want to commit a crime and get away with it, put on a police uniform, because it gives you virtual immunity. I've handled a couple of these counterfeit cases before, and I remember how they worked. The industry would investigate the case, they'd tell the DA what to do, they'd tell the court what to do, and everyone would do exactly what they asked for. Most of the small-time people (like people who run clothes stalls at swap meets and things of the like) would not face much jail, but they certainly never got misdemeanors out of the cases.
Regardless, one of the essential calculations has been missed. Is the fact that a person is law enforcement a basis for a lower sentence or a greater one? I think that if they used their law enforcement position to further the crime, it should be a reason for more, not less, punishment. However, it appears as if it is routinely a basis to give people a pass. It just goes to show that there are two classes of citizen, most of us grunts, and those in blue who can do whatever they want. This is how a society slouches towards autocracy.
Thursday, September 09, 2004
Idiotic Gang "Expert" Opinions
I know I've written on this borderline criminal notion of police gang "experts" who will say just about anything to make a defendant to look bad, making stuff up wholesale under the guise of "expertise." I've probably bored quite a few of you with this. Well, I have a case going now that is going to blow the top off of this at some point. A few months ago a DA elicited gang testimony in a shooting case I have, coming up with some absurd theory of retaliation against a snitch where 2 gang rivals collaborated to punish this snitch, who was from my client's gang (BTW - It is highly doubtful that my client is a gang member, but I'll just accept the cop's absurd premise for the sake of showing how absurd it is. However, no reasonable doubt can exist that the co-defendant is from a rival gang to my client and the victim's gang). I always thought the theory was idiotic, and I think I exposed much of the theory as bogus.
Well, fast forward a couple of months, and what do I get dumped on me? Multiple CDs of wiretaps, wiretap motions with affidavits by detectives and reports on the wiretap results. Furthermore, I got recordings of jail visits of people related to the case (none of them for my client). What do these show? They show pretty obviously that the "theory" and "expertise" testified about by the detectives was simply put - absurd. They show that a much more reasonable explanation shows what happened, one that no expertise was really needed for, about what rivals shot this victim. Unfortunately, they cannot fit that into some nice little package to also pin it on my client.
So what do I do now? I believe that there was outrageous government conduct - the DA elicited opinions that contradicted evidence that she had which would tend to exonerate my client. The DA did this with knowledge (constructive or actual - constructive knowledge means that the DA should've known, in this case the DA's boss actually filed the wiretap motions months before this DA elicited these opinions, and the investigator in this case worked on those wiretaps) that contrary information existed to show the information was false. Furthermore, the DA withheld exonerating information from me at the preliminary hearing, a violation of my client's constitutional rights (some people still think that stuff matters, although those people are becoming an ever smaller minority). Finally, it just violates honesty and fair play to present what the prosecutor knows to be a false theory. I guess in the DA's defense, perhaps the prosecutor could be so hard-headed, dishonest or mean spirited to still believe in the theory that harms my client but is unsupported by any actual evidence as opposed to the contrary theory which exonerates my client and is supported by mounds of evidence. But at least this should be turned over before they presented their contrary theory.
I'll keep people updated on this case. Could it be that I actually have 2 completely innocent people in just a year that I'm representing in gang shootings? These almost never happen, how could that be?
Oh, I forgot to mention, the DA is the same one I had on my other "innocent" client case.
Well, fast forward a couple of months, and what do I get dumped on me? Multiple CDs of wiretaps, wiretap motions with affidavits by detectives and reports on the wiretap results. Furthermore, I got recordings of jail visits of people related to the case (none of them for my client). What do these show? They show pretty obviously that the "theory" and "expertise" testified about by the detectives was simply put - absurd. They show that a much more reasonable explanation shows what happened, one that no expertise was really needed for, about what rivals shot this victim. Unfortunately, they cannot fit that into some nice little package to also pin it on my client.
So what do I do now? I believe that there was outrageous government conduct - the DA elicited opinions that contradicted evidence that she had which would tend to exonerate my client. The DA did this with knowledge (constructive or actual - constructive knowledge means that the DA should've known, in this case the DA's boss actually filed the wiretap motions months before this DA elicited these opinions, and the investigator in this case worked on those wiretaps) that contrary information existed to show the information was false. Furthermore, the DA withheld exonerating information from me at the preliminary hearing, a violation of my client's constitutional rights (some people still think that stuff matters, although those people are becoming an ever smaller minority). Finally, it just violates honesty and fair play to present what the prosecutor knows to be a false theory. I guess in the DA's defense, perhaps the prosecutor could be so hard-headed, dishonest or mean spirited to still believe in the theory that harms my client but is unsupported by any actual evidence as opposed to the contrary theory which exonerates my client and is supported by mounds of evidence. But at least this should be turned over before they presented their contrary theory.
I'll keep people updated on this case. Could it be that I actually have 2 completely innocent people in just a year that I'm representing in gang shootings? These almost never happen, how could that be?
Oh, I forgot to mention, the DA is the same one I had on my other "innocent" client case.
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