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July 30, 2010

California's three-strikes law and its 2010 race for state attorney general

Thanks to the always great Prison Law Blog, I just saw this interesting article from The Economist, which is headlined "Cooley's law: A Republican district attorney seeks to make three-strikes more humane." Here are excerpts:

The current [Los Angeles DA], Steve Cooley, has other ideas about Three Strikes, which he values as a “powerful recidivist tool” but also considers “draconian”.  Mr Cooley has become the first DA in California to have a written policy not to invoke the three-strikes law when neither the current crime nor the previous strikes are violent or serious.

His approach is especially noteworthy because Mr Cooley is also the Republican candidate for attorney-general of the whole state.  As a conservative, he need not be as paranoid as his Democratic rival about being called soft on crime.  The son of an FBI agent and a proponent of the death penalty, Mr Cooley can point out the obvious — that the law is often egregiously unjust — and still be considered tough.

His Democratic opponent, Kamala Harris, agrees with him on three strikes, but has so far been more circumspect.  As district attorney of San Francisco, which many Californians consider quasi-Jacobin, she has to work harder to seem tough.  Her Jamaican father and Tamil mother went to Berkeley in the 1960s and marched in the streets.  And her sister once lobbied for a (failed) ballot initiative that would have reformed the three-strikes law to exclude non-violent crimes.

Both Ms Harris and Mr Cooley opposed that reform.  But Mr Cooley then proposed one that was only slightly more conservative.  It would have stopped counting non-violent, non-serious crimes as third strikes, unless a previous strike was heinous.  That initiative also failed.  Ms Harris thought it “went too far”.

And so, with a Republican unexpectedly in the lead, the debate about the three-strikes law has been set in motion.  Its injustices have become embarrassing even to right-wingers. Elaine Howle, the state auditor, recently reported that of the 171,500 inmates in California’s overcrowded prisons last year, a quarter (43,500) were sentenced under the three-strikes law. More than half of these are locked up for crimes that were not serious, at a cost of $7.5 billion.

This story reflects an aspect of the modern politics of sentencing reform that should always be remembered: Republicans and conservatives may be both more willing and more able politically to urge "soft" reforms than Democrats.  (The story also reflects the cool reality of writing for The Economist, where the adjective "quasi-Jacobin" can be used without fear of losing its readers.)

July 30, 2010 at 04:45 PM | Permalink


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123D is about the status crime of being a career violent offender. If judges could be trusted, it could be made discretionary. However, California judges are so biased in favor of criminals they cannot be trusted. The remedy is to remove all judges, try them for their betrayal of their oaths, execute them, replace all of them with professional judges pledged to protect the public safety.

So, a drug kingpin caught shoplifting a pack of gum as strike three could be executed for public safety. Someone who is OK sober, but beat up the police for the third time, while drunk, could be sent to rehab. These outcomes would serve public safety and justice. However, the judges of California are such an abomination, none can be trusted with the slightest sentencing discretion. These are absolute internal enemies, responsible for the 90% of crime by repeat offenders.

The other remedy is to end all judge immunities, and make them all liable to the future victims of the criminals they loosed, and to criminals they overly or falsely punished, outside of judge standards of due care.

Posted by: Supremacy Claus | Jul 30, 2010 11:25:10 PM

Is Mr. Cooley a lawyer? No lawyer should be allowed on any bench, in any legislative seat, nor in any responsible policy position in the executive. Nothing he says has the slightest merit or validity, no matter what political credentials. He beleives in supernatural core legal doctrines and is basing his utterances on Medieval church garbage.

All lawyers are the same, victims of the criminal cult enterprise indoctrination, and dedicated to only one value, the rent for the CCE. For example, the Roberts court, called conservative, preserved the multi-billion dollar death penalty appellate business. There is no substantive difference between the most left and the most right leaning lawyer.

Posted by: Supremacy Claus | Jul 30, 2010 11:31:20 PM

supremacy, remember the pills: 3 blue in the morning, one yellow at noon, and a big fat purplse one at night, you lunatic.

Posted by: anon | Jul 31, 2010 1:12:27 AM

Anon: Go ahead, mock away. I know you need help.

Remember, we earth people do not believe in future forecasting, mind reading, and truth detection by the use of gut feelings of twelve strangers after excluding any with knowledge. Nor do we believe our behavior standards should be set by a fictional character with the overly anxious personality of Mickey Mouse, but who is really a thinly disguised avatar of Jesus Christ, in brazen and open violation of the constitution of our secular nation.

You must be a lawyer dumbass. Here, the word, dumbass, is not an epithet. It is a lawyer term of art describing the mental crippling of intelligent modern students by their law school cult indoctrination into supernatural doctrines. Not even the Medieval church believed in these. I am here to help you liberate yourself from the abject slavery of being a dumbass. Also, thank you for being the only one here stupid enough to reply.

Posted by: Supremacy Claus | Jul 31, 2010 4:28:27 AM

my recollection from Justice O'Connor's opinion in Ewing was that by definition one of the previous strikes had to be "serious" or "violent." Is that right, somebody from California? Kent?

If that is the case, the DA's position is disingenuous.


Posted by: bruce cunningham | Jul 31, 2010 12:25:19 PM

bruce, the 3rd strike need not be serious or violent. Any felony will do. So Cooley would not charge a non-serious, non-violent felony as a 3rd strike "unless a previous strike was heinous."

Posted by: George | Jul 31, 2010 12:51:27 PM

From a former resident of LA area, now practicing criminal defense in Midwest. Re: adjective "quasi-Jacobin." As in, "somethin' like Robespierre's 'Committee of Public Safety.'" Some people in the rest of the state might have various names (including "leftist" or "left-liberal")to pitch at Bay Area people, but I doubt that "quasi-Jacobin" is one.

Posted by: rcd | Jul 31, 2010 1:06:46 PM

To their credit, the Jacobins ended the Inquisition 1.0 by beheading or expelling 10,000 high church officials, a group of blood sucking rent seeking parasites, demanding fees for rituals at every event of life, seizing the assets of middle class people for the slightest infraction of an infinity of rules known only to them. The Church never recovered its sentencing law and policy powers after that. I would like to see the Jacobins 2.0 end Inquisition 2.0 by the same method. The lawyer just picked up the Inquisition gotcha methods, doctrines, and business plan, nearly unchanged. It is time to end this abomination. The Republican offers a false choice, and Bush exploded the Federal Register, increased the confiscatory effect of taxes, as his oil cronies did very well at the expense of the public interest. An independent force will have to arise from the middle class, and wipe the lot out of power. Any revolutionary excesses were worth the termination of the Inquisition. Out of their work came that masterpiece of jurisprudence, the Napoleonic code, at the time, a major advance in civilizing the savages he conquered.

Posted by: Supremacy Claus | Jul 31, 2010 3:58:55 PM

yep i've seen new articles of the 3rd strike in calif being the theft of children's video's or a galf club!

Posted by: rodsmith | Jul 31, 2010 11:26:49 PM

The Prison Law Blog comment about Three Strikes left out material information. While the number presented as to the total prison population incarcerated under 3K is technically correct, it left out a key fact. Of that number, 32,660 were serving second strike (determinate or non-life) sentences and only 8,454 were serving three strike (minimum 25 years to life) sentences. Please reference the Fall 2009 CDCR report, page 19.
The positions of both Ms. Harris & Mr. Cooley on 3K similarly omit a key fact that must be referenced as to any discussion as to the "draconian" nature of 3K. If the DA feels a 3K or 2K sentence for a particular defendant is inappropriate, they are free not to charge the prior(s). Even more importantly as a guard against an overzealous DA, if the sentencing judge feels that such a sentence is inappropriate for that defendant, that judge has the power to strike one or even all such qualifying serious or even violent felony prior convictions.
Speaking from personal experience as a California prosecutor with over a quarter-century of experience, there are some hard-core criminals that must be taken off the streets whether they are charged with murder or only petty theft with a prior. Our current Three Strikes law, which now gives discretion both to the prosecutor and to the bench, is an effective tool to fight such criminals while allowing those who do not deserve a life sentence to be given only a doubled sentence or even a grant of probation when appropriate.

Posted by: Blake J. Gunderson | Aug 2, 2010 12:32:31 PM

"Speaking from personal experience as a California prosecutor with over a quarter-century of experience, there are some hard-core criminals that must be taken off the streets whether they are charged with murder or only petty theft with a prior."

Horse Hockey! If they are such harded violent criminals...THEN get them for those crimes. Don't comitt a crime YOURSELF when you sandbag someone using a JOKE charge to lock up someone you COULDN'T convict any other way.

Sorry if that's what your doing your a bigger THREAT then they are!

Posted by: rodsmith | Aug 2, 2010 12:54:56 PM

I completely agree with Blake Gunderson! I wish there were more of you out there to speak up for the injustices going on DAILY in California courts.

Posted by: Andrea | Sep 23, 2010 1:16:04 PM

I apologize the above comment was for "rodsmith" you called it with that a**hole Blake

Posted by: Andrea | Nov 2, 2010 7:55:25 PM

I'm just a house wife but when my husband was given 25 to life for smoking weed in his cell, in prison; l was in shock. He should of been home in 2002 now his release date is 2028 and that is if there let him come home. waste of state money. and only for someone to have a state job. what a pity of a state we live in.

Posted by: linda cameron | Mar 10, 2011 11:25:06 PM

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