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November 27, 2011

Noting the impact of three strikes on plea practices in California

This local article from California, headlined "The hidden impact of three strikes: State law is widely used to coerce plea bargains," does a very effective job spotlighting the relationship between a consequential state mandatory minimum sentencing provision and plea practices.  Here are excerpts:

Across California, hundreds of criminals convicted of non-serious, non-violent, non-sexual crimes last month were no longer sent to prison under the state's massive inmate realignment — but this group of "low level" offenders does not include more than 2,200 inmates currently imprisoned for the exact same crimes.  They are serving life sentences under California's three-strikes law.

It is this incongruity that again has inspired a reform effort aimed at requiring that an offender's third strike be a serious, violent offense.  "Most people don't realize a petty theft with priors is a third strike and can get you life in prison," said Salinas-based defense attorney Brian Worthington.

Men in Monterey County have been sentenced to 25 years to life for crimes ranging from petty theft to drug possession to second-degree burglary, the same offenses that now qualify others for county jail, probation and rehab programs.  A third strike doesn't have to be serious, violent or sexual. It can even be what criminal attorneys call a "wobbler" — a crime that's allowed to be prosecuted as either a misdemeanor or a felony.

In Monterey County, where the overall numbers are small, such relatively minor crimes have put more than 10 percent of the county's third-strikers in state prison for life.  Of the county's 41 third-strikers in state prison as of June, five are serving life terms for offenses that fall squarely under realignment's definition of non-serious, non-violent and non-sexual....

Worthington and other defense attorneys acknowledge that Monterey County prosecutors tend to reserve a third strike for serious, sexual or violent crimes.  But what third-strike conviction numbers don't reflect is how often the mere threat of applying the law — and therefore, a life sentence — is used to coerce plea agreements and prison time in low-level cases that otherwise could have ended with a few years' probation.

That, says Worthington, is the hidden impact of three strikes.  "I think people would also be surprised to know that you can get multiple strikes in one offense.  They think it's for someone who has a long, illustrious career (in crime).  But it could be one event with no prior record and it doesn't have to be their third or fourth time in front of a judge."...

Monterey County public defender Jim Egar calls three strikes "an overwhelming coercive tool.  It discourages innocent people from going to trial.  The risk of conviction and punishment causes people to plead guilty....  You have a situation that is ripe for unfair results.  Mistakes happen because people are afraid of the risk."

"I don't discount that they may feel leverage," said Monterey County District Attorney Dean Flippo, who has been "heavily involved in the political wars" over three strikes through the years.  Flippo said he and other district attorneys initially remained neutral when three strikes became law, but became supportive after they noted its popularity and saw that higher courts upheld it.  "We were concerned about the third strike being non-serious and non-violent. But it picked up steam, and we embraced it."...

Flippo acknowledges that in the early years there were some abuses, "the kind that would shock the conscience."  But within two years, judges were given the ability to dismiss a strike, in an act known as the Romero decision.  "The first reform was the Romero decision," Flippo said. "Three strikes gave us discretion to say 'You've had as many breaks as the community can give you.' If the judge disagrees with the prosecutor, he has the power to strike the strikes."

Unlike some district attorneys in California, Flippo has had a written three-strikes policy for years.  While it encourages prosecutors to file strikes whenever possible, the policy also allows them to dismiss strikes if there are "compelling" considerations, such as multiple strikes stemming from the same incident, if many years have passed since the strikes occurred, or if the defendant has had a crime-free record for 10 years.  Attorneys also can decline to file a strike if the new offense is possessing a small amount of drugs.

Still, Flippo doesn't hesitate to credit the law with lowered crime rates around the state. "Crime rates have been going down, down, down. I attribute it to harsher sentencing... along with mobilization of communities" toward prevention and intervention efforts.

Generally, there has been no agreement among criminologists about why crime rates continue to decline, and Worthington cited research that concludes just the opposite.  "You will not find any link between the harshness of the sentence and declining crime rates," he said.

November 27, 2011 at 02:25 PM | Permalink

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Comments

"Still, Flippo doesn't hesitate to credit the law with lowered crime rates around the state. "Crime rates have been going down, down, down. I attribute it to harsher sentencing... along with mobilization of communities" toward prevention and intervention efforts."

The problem with the decrease in violent crime isn't that no one knows why; it's that /everyone/ knows why. From three strikes to video games to longer sentences whatever someone's pet agenda is there is a direct relationship between it and lower crime. It's simply amazing how one good deed happens and there is no shortage of monsters coming out of the woodwork to take credit for it.

Posted by: Daniel | Nov 27, 2011 5:06:34 PM

Al Capone was imprisoned for income tax evasion, not for the St. Valentine's Day massacre. The pretextual use of lesser charges has a place in the incapacitation of big time criminals. One has to know a lot more about the criminal activity of those 2000 people sent up for non-violent crimes before changing the law. Prosecutors have discretion and should be selecting the most dangerous people for the mandatory 3 strikes rule. I would like to hear them quietly defending the practice without openly admitting the pretextual nature of these charges. One is preventing hundreds of crimes a year with the incarceration of each of these seemingly non-threatening inmates.

Posted by: Supremacy Claus | Nov 27, 2011 5:16:04 PM

In my opinion, the discretionary application of three strike laws seriously undermines the Rule of Law. I assume it is unethical everywhere to "negotiate" a person's prior record level. In other words, the prosecutor and defense lawyer cannot agree to ignore a prior conviction or two in order to arrive at an agreement on sentence. I see no difference between negotiating prior record and the power of a DA to apply or not apply the three strike law, which is simply a way at looking at someone's prior record.

Three strike laws may have made sense in the 1790's, when Virginia and Massachusetts introduced them to the criminal law, but today they are primarily a hammer used by prosecutors to coerce pleas. The Council of State Governments report on NC's Justice Reinvestment Act says as much. Prosecutors can't realize how silly they look when they try before a jury the "fact" of whether a defendant has three prior convictions, and then don't worry about a jury trial for the remainder of someone's record when it comes time for sentencing.

bruce

Posted by: bruce cunningham | Nov 27, 2011 6:21:55 PM

Bruce: A mass murdering drug kingpin is caught shoplifting, a third strike. There will be no witnesses to his mass murders. That is reality. You have video tape of the shoplifting. You just fine $25 and send him to shoplifting class? That is totally irresponsible and a threat to the public safety. The number, three, represents the character of the person. It is a stand in for the thousands of crime committed by the person that have gone unanswered by the lawyer profession. Commit an FBI Index felony, there is a 90% chance of never being inconvenienced by the lawyer in any way. It is absolutely fair and promotion of the Rule of Law to send the drug kingpin to life in prison for the shoplifting.

Posted by: Supremacy Claus | Nov 27, 2011 6:57:42 PM

SC, you have completely missed my point. I am saying that the three strikes are simply part of a defendant's record of prior convictions. In my opinion, prosecutors prosecute crimes, not manipulate sentence according to how prior convictions factor in. It should be all or nothing. Everyone who has three prior qualifying convictions gets their sentence enhanced, or no one does.

It is flagrantly unethical for a lawyer and prosecutor to negotiate a resolution based on overlooking some portion of a defendant's prior record. I don't see the difference between that and the application of a three strikes law being in the discretion of the state.

bruce

Posted by: bruce cunningham | Nov 27, 2011 8:39:36 PM

Bruce: You are a retributionist, and I, an utilitarian. You would like to limit the damage and danger in dispute to the act. I see the person as the threat, and the object of the trial. This is a return to the status offense, yes declared unconstitutional long ago, but unrealistically so. We pay government to protect us from future harm. So, the vagrant is not being detained either for punishment, nor for his vagrancy at the time of arrest. He is being detained for the hundreds of crimes he will commit in the future. This foreseeability has the validity and strength of foreseeing planetary orbits after the third conviction.

Other uses of the criminal law, such as retribution, have serious problems. They come from Iraqi tribal culture, the folks that wrote the religious text, the Bible. They do not work. They allow massive flouting of the law, such as 18 million FBI Index felonies going unanswered each year. They are not worth anything to the owner of the law, the public. The public gets no benefit from retribution. It is also an immature seeking of vengeance generating endless cycles of revenge.

Posted by: Supremacy Claus | Nov 27, 2011 9:24:05 PM

hmm

"Bruce: A mass murdering drug kingpin is caught shoplifting, a third strike. There will be no witnesses to his mass murders. That is reality. You have video tape of the shoplifting. You just fine $25 and send him to shoplifting class? That is totally irresponsible and a threat to the public safety."

sure it would. BUT it would be constutional! since legaly you HAVE NOT PROVED anthing BUT the shoplifting! Therefor it is ILLEGAL and UNCONSTUTIONAL to convict as if all the other charges have n ot only been actually CHARGED but CONVICTED!


BESIDES just where in the constution does it GUARANTEE anyone let alone the PUBLIC to be safe?

Posted by: rodsmith | Nov 27, 2011 11:00:15 PM

Bruce,

We give prosecutors enormous discretion, there has never been a requirement that prosecutors take all cases that cross their desk, even where there is an absolute certainty of getting a conviction. I don't think you'd get much traction with an alternate argument that prosecutors must try for every sentencing factor that they can prove which is what your claim here amounts to. I just don't see the courts going with any such argument, nor do I think they should.

Posted by: Soronel Haetir | Nov 27, 2011 11:42:57 PM

Soronel, you are confusing the distinction between prosecutors having discretion concerning the prosecution of crimes and discretion as to which sentencing law applies. The former is fine, the latter violates equal protection. Application of a three strikes law is purely a sentencing exercise.

bruce

Posted by: bruce cunningham | Nov 28, 2011 6:57:27 AM

soronel, also you are confusing sentencing factors which are prior convictions and sentencing factors which are other things. It is absolutely unethical in NC for prosecutors and defense attorneys to ignore clearly existing prior convictions in their negotiations. bruce

Posted by: bruce cunningham | Nov 28, 2011 7:00:22 AM

RS: So Al Capone should have been made to pay his taxes, penalties and interest, and released on Chicago, instead of the long prison term in federal prison. Public safety is the sole reason to have government and the rule of law. Turn it off, and you are in Fallujah, spending full time on personal security, and doing nothing else.

Posted by: Supremacy Claus | Nov 28, 2011 10:03:12 AM

In my large county we do not plea bargain strikes to get defendants to plead guilty. For one, it violates Penal Code section 1192.7(a)&(b) and additionally it discourages the defendant's right to a jury trial.

The judges on the other hand are so motivated to settle cases that even though express plea bargaining of strikes is rare, it is often clear which way they are going to rule (on the motion to strike the strikes) at the time of the guilty plea and the judges are extremely reluctant to reverse course because it will discourage other defendants from pleading.

Posted by: David | Nov 28, 2011 10:10:11 AM

Doug, I can't tell from your post -- are you for or against this putative practice of using three-strikes coercively to extract pleas? You definitely (and misguidedly in my opinion) lead the cheers for this practice in the DP context.

Posted by: Anon | Nov 28, 2011 6:43:51 PM

"RS: So Al Capone should have been made to pay his taxes, penalties and interest, and released on Chicago, instead of the long prison term in federal prison."

well SC going by your Rule of law! IF you CAN'T PROVE he deserves a long prison sentence...THEN YES i want him left alone!

Posted by: rodsmith | Nov 30, 2011 3:30:24 PM

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