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May 30, 2011

Could SCOTUS Plata ruling grease path to reform of California's tough 3-strikes law?

The question in the title of this post is inspired by this new local piece headlined "Opponents of three-strikes law see hope in prison ruling." Here are excerpts:

The U.S. Supreme Court’s ruling last week requiring California to cut its prison population by more than 33,000 inmates within two years could boost efforts to modify or repeal the state’s three-strikes law, which some say keeps nonviolent offenders in prison for far too long. The law, approved by voters and the Legislature in 1994, significantly increased prison terms for repeat offenders with previous convictions for violent or serious felonies as defined by state law, putting some behind bars for life.

Opponents of the three-strikes law have argued for years that it is overly harsh and keeps people in prison decades after they stop being dangerous — because of age, medical problems or both — exacerbating the state’s prison overcrowding problem.

A main argument against the law has been that a person with two strikes can be sentenced to 25 years to life for a nonviolent offense, such as petty theft. “We over incarcerate in California, and this U.S. Supreme Court decision is an impetus to change that,” said Erwin Chemerinsky, founding dean at the University of California Irvine Law School....

Supporters of the three-strikes law, including San Diego County District Attorney Bonnie Dumanis, insist it’s a good law, if applied correctly. They note that judges and prosecutors now have the discretion to decide when it should be applied, which wasn’t the case immediately after the law was approved. “Most district attorneys aren’t sending people to prison for 25 years to life on a nonviolent offense,” Dumanis said.

She acknowledges that the three-strikes law has affected prison overcrowding but it wasn’t a major factor. A bigger contributor, she said, is California’s 70 percent recidivism rate. The people convicted under the three-strikes law “weren’t the large numbers that everybody was anticipating,” Dumanis said.

According to a report by the state Legislative Analyst’s Office, roughly 41,000 inmates — about 25 percent of the total prison population — were serving time in prison under the three-strikes law as of Dec. 31. Of those, more than 32,000 were second-strikers and about 8,700 were third-strikers.

The report says that although the population of inmates incarcerated under the three-strikes law grew quickly in the first years it existed, the rate of growth has slowed significantly over the past decade as second-strikers finished their prison terms and were released on parole....

“The reality is that California has to release some inmates,” [Chemerinsky] said, noting that it would be wise to look at nonviolent second- and third-strikers as candidates. “We are paying ($40,000) to $50,000 a year on average to incarcerate people,” he said. “When they get older, the cost increases dramatically.”

Members of Families to Amend California’s Three-Strikes have talked about getting a measure on the 2012 ballot that would modify the law. But such an effort requires money and it’s not clear where that might come from.

Alan Mobley, an assistant professor of public affairs and criminal justice at San Diego State University, said the U.S. Supreme Court’s ruling, and the attention it has generated, could help. “It provides a good argument for activists to approach funders and say the tide is on our side,” Mobley said.

Still, any measure to repeal or revise the three-strikes law is likely to be met with resistance. “No elected official wants to touch it,” said Paul Pfingst, who was the county’s district attorney from 1994 to 2002 and is now a criminal defense lawyer....

In 2004, California voters rejected an initiative that would have required an offenders’ third strike to be a violent or serious felony and eliminate second-strike sentences for most offenders. Only 47 percent of the state’s voters supported the measure.

May 30, 2011 at 05:02 PM | Permalink


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Under 123D,each prisoner could be provided with Ritz-Carlton standard accommodations. There would be 95% less crime. Real estate would beworth at lest twice what it is today, especially in the inner city. The economy would grow at its natural 10% a year, not the anemic rate of this century. There would be only half the lawyers of today, paid 4 times today's salaries.

Why? All the criminals would be deceased before age 18. What is preventing this utopia? Lawyer rent seeking and selfishness, presentism.

Posted by: Supremacy Claus | May 30, 2011 7:25:01 PM

Concerning prosecutor Dumanis' statement that prosecutors and judges have discretion as to whom the three strike law applies, I believe such discretion violates the equal protection clause, as well as separation of powers and arbitrariness concerns. The three strike law is a SENTENCNG provision. In the only three US Supreme court cases to address an equal protection challenge to three strike laws, Moore, Mcdonald and Graham, all three cases held that the statutes passed equal protection muster because they applied to all persons similarly situated.

I have said this many times, and not many folks concurred, but I believe the notion of a "wobbler" is blatantly unconstitutional.

bruce cunningham

Posted by: bruce cunningham | May 30, 2011 9:46:56 PM

I agree Bruce. In a situation in the state I practice, the PD's raised this issue. Of course, they only raised it on their clients that actually received the sentencing enhancement, and not on the ones we decided deserved a waiver. So, to allay any concerns they might have for their clients, we simply charged all eligible defendants with the enhancement. Now, the PD's bitch we charge the enhancement with no discretion. We say, "you wanted equal protection, you got it!"

Posted by: josh | May 30, 2011 10:32:30 PM

Here is a plan for reducing the prison population:

For analytical purposes, I propose that each sentence now in force be thought of as having two parts that run in tandem, accountability and risk control/reduction. That part that imposes the greatest level of restraint should control at any given point in time. The less restrictive part can be nested within the more restrictive part, thereby accomplishing both categories of deprivation objectives. Accountability is fixed, risk control is variable, but with an outside limit. Risk control decisions should be made periodically; say yearly or when circumstances change.

For population reduction purposes, first categorically reduce the accountability part of all sentences by a set percentage; e.g., twenty percent to start. In that way all offenders who are similarly situated as to accountability would be treated similarly. This will create a pool of cases that can then be reviewed for risk. Conduct hearings, case by case, using criteria based on policy judgments about the amount of risk that is acceptable at different restraint levels. In that way those who are similarly situated as to risk will be treated similarly and would be accorded due process. By this means, those with lower levels of risk who have finished the accountability part of their sentences can be moved to programs with lower levels of restraint, thereby reducing the overcrowding problem. Low risk offenders would be discharged.

Posted by: Tom McGee | May 31, 2011 12:33:21 AM


States already have trouble meeting their review requirements. Grits has pointed out that the state has been failing to provide parole revocation hearings that the courts have ruled mandatory. And there are a great many offenders who got hit with sexual offender release conditions despite not having a sex offense as part of their convictions (the state can impose the conditions in such cases, it just requires adversarial hearings that weren't/aren't being held). In both cases the state argues that it would simply be too cumbersome to provide these constitutionally mandated hearings.

I doubt that adding more review bureaucracy that would have to fight for every dime of its budget would really help matters. The boards we already have in place spend a short period as it is to make their decisions, I just don't think yet more decision points in the tree would prove helpful.

Posted by: Soronel Haetir | May 31, 2011 9:28:36 AM

Soronel, you are probably right, given the current management of the California system. But if you consider cost-effectiveness and the need to act quickly and responsibly, I believe my proposal makes a lot of sense. Reducing the current population is just half the problem. The sentencing system also needs to be restructured so it does not continue to overload the state's programming capacity. To do this they need to distinguish between the two categories of objectives--hold offenders accountable and control their risk. I believe the voters would choose to give priority to the latter, over the former, when resources are limited. California just needs to be smarter about how they manage this problem, which is a tall order I grant. They need to break away form the same old, dumbed-down way of doing business.

Posted by: Tom McGee | May 31, 2011 12:43:04 PM


I should have made it clear I was talking about Texas not meeting its obligations. This problem is endemic, California is just leading the trend right now.

And yes, you're absolutely right that CA needs to change how it sentences in order to have any chance of first complying with Platter and then remaining in compliance.

Posted by: Soronel Haetir | May 31, 2011 2:31:01 PM

It's a problem when a state prison guard gets pay more than a teacher.

Posted by: Ryan | Jun 22, 2011 12:20:41 AM

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