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.