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May 23, 2010

Terrific examination of prosecutorial discretion, politics and other three-strikes realities in California

Today's New York Times magazine has this must-read article by Emily Bazelon headlined "Arguing Three Strikes." Here are just a few extended excerpts that make the piece so very interesting and effective and telling:

In 2000, ... Steve Cooley became the district attorney for Los Angeles County. Cooley is a Republican career prosecutor, but he campaigned against the excesses of three strikes.  “Fix it or lose it,” he says of the law.  In 2005, Cooley ordered a review of cases, to identify three-strikes inmates who had not committed violent crimes and whose life sentences a judge might deem worthy of second looks.  His staff came up with a list of more than 60 names....

Twenty-five other states have passed three-strikes laws, but only California punishes minor crimes with the penalty of a life sentence. About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early....

Now California is in the midst of fiscal calamity.  Supreme Court Justice Anthony Kennedy, who had been a judge in California, recently bemoaned state sentencing and spending on prisons. In an address at Pepperdine University, he said that “the three-strikes law sponsor is the correctional officers’ union, and that is sick!”  And yet Schwarzenegger has vowed not to touch the law.  Meg Whitman and Jerry Brown, the leading Republican and Democratic contenders to succeed him in November, are just as unbending....

Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy....  The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs.  During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent.  No other prosecutor’s office in California has a written policy like Cooley’s, though a couple of D.A.’s informally exercise similar discretion....

[I]n 2006, he offered up his own bill, which tracked his policy as D.A., taking minor drug crimes and petty theft off the list of three-strikes offenses unless one of the first two strikes involved a crime that Cooley considers hard-core.  For staking out even this middle ground, Cooley became prosecutor non grata among his fellow D.A.’s.  No district attorney, not even the most liberal, supported his bill, and it died in Senate committee.

Cooley could once again pay a price for his three-strikes record.  This spring, he announced his candidacy for California attorney general. His Republican rivals have hammered him for his moderate stance.  “He’s acting as an enabler for habitual offenders,” State Senator Tom Harman told me. “I think that’s wrong. I want to put them in prison.”  The race has developed into a litmus test: for 15 years, no serious candidate for major statewide office has dared to criticize three strikes.  If Cooley makes it through his party’s primary on June 8 — and especially if he goes on to win in November — the law will no longer seem untouchable.  If he loses, three strikes will be all the more difficult to dislodge....

While 694 convicted murderers sit on the state’s death row, only 13 have been executed since the Supreme Court allowed for reinstatement of the death penalty in 1976.  The 3,700 nonviolent, nonserious three-strikers serving life in California outnumber the 3,263 death-row inmates nationwide.

By working with three-strikers, [lawyer Michael] Romano is trying to highlight the plight of criminals he sees as more pathetic than heinous.  “I think about explaining to my kids what I do, and I see no moral ambiguity,” Romano says about his work.  Capital defendants, of course, deserve representation, he explains. “But there are other lives to be saved, of people who haven’t done horrible things, who haven’t actually hurt anyone.”

In practical terms, Romano points out, the difference between being convicted of capital murder and a small-time third strike is this: a murderer is entitled to a far greater share of legal resources. California spends at least $300,000 on the defense side of a capital murder trial.  The courts give extra scrutiny to each capital appeal that comes before them.  And it’s only in death-penalty cases that the state pays lawyers to file a writ of habeas corpus, the route to challenging a conviction once direct appeal has been exhausted.

A three-strikes case, by contrast, is just one more file in the stack on a public defender’s desk and a judge’s docket.  Romano has a client whose appellate lawyer cut and pasted into her brief for him the more serious criminal history of another man — incorrectly telling the judges that her client was far more violent when he actually was.

If Steve Cooley wins the Republican primary for attorney general, on almost every issue — most visibly the death penalty — he’ll run to the right of his probable Democratic opponent, the San Francisco district attorney Kamala Harris.  But on three strikes, Cooley will run to Harris’s left. (She didn’t support his 2006 proposal, though she is one of the prosecutors who, on a case-by-case basis, refrains from seeking a life sentence for some nonviolent three-strikers.)...

Cooley is couching his support for amending three strikes statewide more carefully during campaign season. “Any changes to the three-strikes law will have to be in the context of overall prison reform,” he told me in March. At the same time, Romano and Families to Amend California’s Three Strikes, the group that fought for Proposition 66, are increasingly interested in using Cooley’s Los Angeles policy as the basis for a new statewide reform effort in 2012, because it suggests a way to reserve life sentences for the three-strikers who have committed crimes of violence.

The statistic I have highlighted above, and the astute subsequent discussion of how many more legal resources are devoted to the most heinous murderers in California and elsewhere, reinforces my own strong belief (which I have expressed in this Harvard Law & Policy Review article and elsewhere) that progressives seriously interested in serious sentencing reforms must stop obsessing about the death penalty and should start obsessing about life sentences.

Put simply, in California and throughout the nation, there are lots of legal and social and political forces that now help ensure that few "lesser" murderers ever end up on death row.  Indeed, as the plea deals for the Green River Killer and repeat sex offender killer John Allen Gardner highlight, all but the most ardent death penalty abolitionists should probably be most concerned about the worst murderers often being able to avoid ending up on death row. 

In sharp contrast, there are lots of legal and social and political forces that now help ensure that many  "lesser" offenders end up facing actual or functional life sentences.  Consider these examples from just the last few weeks: Michelle Lyn Taylor recently got a life sentence in Nevada for forcing a teenage boy to touch her breasts; Sholom Rubashkin had federal prosecutors urging a life sentence for various fraud offenses; Enrique Prieto got a life sentence in Texas for assaulting an elderly man.

As this great NYTimes article spotlights, prosecutors always can and often will mitigate the harshest realities of life sentencing statutes through the exercise of their charging and bargaining discretion.  But, for many reasons, I do not think the Framers of our Constitution would have been too pleased with the notion that the only protection that many lesser offenders may have from a lifetime loss of human liberty is merely the unregulated and unexplained discretionary judgment of an executive branch prosecutor.

May 23, 2010 at 10:46 AM | Permalink


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I would certainly agree that far too much of the limited resource of court time and attention is spent quibbling over which admitted murderer is worthy of execution. I am not certain, however, that changing to arguing over which habitual petty offenders need to be separated from society for long periods would be an improvement.

I would much rather that focus be on innocence and little else. I would also rather that political focus turn to what should be criminal in the first place. How people are punished for illegitimate crimes is attacking the problem from the wrong end.

Posted by: Soronel Haetir | May 23, 2010 11:59:41 AM

The Republican's (and CCPOA's Crime Victims United) are at it again.

Analysts: Calif. bill targeting child molesters for long prison terms would cost many millions

The Assembly analysis suggests deleting provisions that could potentially send offenders to prison for life for inflicting a bruise during a sex crime, or subject them to lifetime parole for acts that could include touching a child over his or her clothing. That would cut the bill's costs substantially, the analysis said.

"I think it's undeniable there are significant costs," said Sen. Mark Leno, D-San Francisco, who chairs the Senate Public Safety Committee. "It's clearly a very important issue, a highly emotional issue, and we need to be grounding ourselves in fact."

Fletcher said he is open to minor changes. But he said backers will go to voters with an initiative before they accept major amendments.

Posted by: George | May 23, 2010 2:00:41 PM

Criminals do not specialize. On an individual basis, the third strike may be for shoplifting, but the defendant is a clever serial killer, or the leader of an ultra-violent, paramilitary, heavily armed gang (like a potential rival to the the ultimate such gang, the lawyer profession). The third strike has full policy justification as a pretext to incapacitate a very dangerous defendant. If this DA includes the earlier charges in his calculation of three strikes, then this scheme makes sense. It is unclear if he does from the article. The overwhelming majority of lawyer drafted laws and regulations are pretext to confiscate the assets of the productive male. So this scheme to protect the public fits in well with lawyer methodology.

This article makes the self-evident point that the political affiliation of the lawyer makes no difference, as with Scalia, and this DA. The aim is to immunize the client, the criminal, the source of the lawyer's job.

Posted by: Supremacy Claus | May 23, 2010 3:54:29 PM

"... the unregulated and unexplained discretionary judgment of an executive branch prosecutor."

This is an abomination, courtesy of the Supreme Court. The immunity is absolute and total. The competence is like that of a two year old, throwing things about a room. They know nothing about nothing, not the charges, not the defendant's record, not the evidence available. They want to spend 5 minutes on each. Worse, most are at will employees, without civil service protections. If they displease their politically appointed or elected bosses, they will lose their jobs and potentially a pension.

The DA should be liable for his deviation from prosecutorial standards of due care. This is not strict liability, as it ought to be because the activity is dangerous in its ordinary practice, but professional standards of due care, set by the specialty itself. Any lawyer filing a weak claim should be sued for lawyer malpractice by the prosecutor defendant. He should be able to file a cross claim against the judge who allowed a wrongful case to proceed. Let torts do its work. Its biggest impact will be to shrink the prosecutorial enterprise. In return, there will no longer be good intellectual and moral justification for violent self-help against a careless prosecutor, as there is today.

Irony. The argument against this proposal from ALI types in the business? Litigation explosion. That makes laugh helplessly with any available fluid shooting from my nose.

I would appreciate any logical policy argument for maintaining this unfair, unlawful, and ultimately dangerous absolute immunity of the prosecution. I promise, my proposal will respect your rebuttal in the morning, and will send a small gift later in the week.

Posted by: Supremacy Claus | May 23, 2010 4:06:58 PM

In terms of ordinary indicia that liability stems from a duty, the prosecutor has a 100 duties to the defendant, in the Rules of Evidence, of Criminal Procedure, of Conduct, in case law (e.g. prosecutor is not allowed to cry in making a summation to the jury). These duties are clearly enumerated in statutes, written in very plain English. These would make most claims per se claims. The Supreme Court is flouting the content of these statutes, and their spirit of seeking accuracy of criminal procedure.

The result? 9 of 10 FBI Index felonies go unanswered by these lazy incompetents. The rate of innocence is unknown, but is likely around 20%. This is a mass crime against humanity, to imprison, 100's of 1000's of people falsely with no realistic recourse.

Posted by: Supremacy Claus | May 23, 2010 4:12:48 PM

Doug - Of course, your central argument that a) Life and other long sentences are an unnecessary evil for all but the most violent and irredeemable offenders, and b) that the unregulated system of prosecutorial power and independence is a causation of this and much other injustice, is absolutely right.
What you apparently fail to understand is that those who argue for the abolition of the death penalty ALSO argue that the entire criminal justice system in the US is based on political myths and legal untruths. The greatest political myth is that the solution to crime is the vicious oppression and punishment of law breakers. The greatest legal untruth is that the Constitution supports the use of extreme punishment against the developing morality of Human Rights.
As I have argued before, and maintain still, proportionality in sentencing will only come about from a combination of "ceiling lowering" ie. to LWOP for the most extreme of probably serial killers (instead of the dp); and from a fundamental reform of the prosecution service.
Everything else is mere tinkering, and open to exactly the same kinds of abuse we see widespread today.
Most of what Supreme Claus writes, I can scarcely understand let alone agree with. However, his final two posts above concerning prosecutors and the failure of the Supreme Court to hold accountable, I agree with 100%. This is a fundamental that precedes any possibility of effective sentencing reform beyond statutory abolition of the death penalty.

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