STRIKES: How judges decide
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STRIKES: How judges decide |
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| being offered an "out." | |||||||||
| The three-strikes law, which cracks down on criminals with at least two serious or violent felonies on their records, was passed March 7,1994, in an effort to stop convicted criminals from committing further crimes. Under the law, any felony can count as a third strike. | |||||||||
| In fact, records show, thousands of three-strikes candidates, like Brown, have been given chances to avoid the law's clutches. | |||||||||
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| "The court declines to strike any strikes in this case. Probably if I even considered it, I'd probably be overruled on appeal, but that's not the reason. The reason is the defendant's prior record - especially the priors for which the strikes have been alleged - are very serious and had the great potential for violence back then." | |||||||||
| JUDGE CHARLES SHELDON, May 5, 1998, while sentencing Richard Richardson, of Lynwood, to 30 years to life for robbing a Home Depot store in Signal Hill. Richardson's priors included three robberies and a joyriding conviction. | |||||||||
| In most cases, its prosecutors who offer to dismiss prior strikes as part of plea bargains. But in 1996, a U.S. Supreme Court case, People v. Romero, gave judges the right to strike strikes as well. | |||||||||
| Romero was a landmark decision for judges, many of whom felt justice was sacrificed when their sentences were set in stone. | |||||||||
| "You cannot turn ajudge into an ATM that just spits out a ruling as some kind of equation," says Norwalk Superior Court Judge Michael Cowell. | |||||||||
| Many Long Beach criminal attorneys, especially defense attorneys, support judges' discretion, saying it brings balance back to the courtroom. | |||||||||
| "Many of the judges here are as offended by imposing 25 to life as the guy on the street would be," says Kenneth McDonald, a deputy public defender. "They are exercising discretion and they are striking priors." | |||||||||
| Landmark decision | |||||||||
| Unlike prosecutors, judges don't have full discretion. A 1998 Supreme Court decision, People v. Williams, set guidelines for dismissing priors in three-strikes cases, effectively prohibiting judges from exercising the breadth of power they exercise in most other cases. | |||||||||
| In the Williams case, the high court ruled that a prior conviction may be dismissed if present and past felonies, background, character and prospects put the defendant "outside the scheme's spirit." | |||||||||
| Trial judges who strike strikes over the wishes of prosecutors are at risk of having their decisions challenged by prosecutors and overturned by appelate courts, which tend to interpret the law more conservatively. | |||||||||
| Prosecutors are limited by similar language, but their discretion is rarely appealed. Nonetheless, ajudge's considerations in striking strikes are similar to a prosecutor's. They look at the defendant's entire record in combination with the current offense, Then they look at the person's efforts to go straight. | |||||||||
| If a third striker is in school or is legitimately providing for a family or can prove he's been a productive member of society, the chances are much greater he'll be treated with lenience. | |||||||||
| "What I look for," Long Beach Superior Court Judge James Pierce told one three-strikes defendant, "is an individual who has, in some way, turned his life around and has contributed in some degree or another to society" | |||||||||
| Judge's discretion | |||||||||
| Robert Francis, of Paramount, escaped the maximum after stealing batteries from a Home Depot store in Signal Hill. While prosecutors said Francis, 44, fit the three-strikes mold, Judge Robert LaFont disagreed. The defendant's court files included a guide to better bowling written by Francis, the self-titled "Sparemaster," and numerous letters in his support written by friends and relatives. LaFont imposed eight years for the theft, noting that Francis' four priors were 1988 arson fires in which no one was hurt. | |||||||||
| Denny Moreno - AKA Ruben Penny - might have been as lucky as Francis had he cared a little more about getting his life back on track. The 36-year-old Long Beach resident was convicted of possessing an eighth of a gram of cocaine after burglarizing four homes in 1991. | |||||||||
| But at his August 1995 sentencing, Judge Pierce noted that Moreno had been paroled for less than a year when he was discovered with the cocaine. | |||||||||
| "This person," Pierce said at the time, "never even contacted his parole officer - ever - in that one-year period; it wasn't even a full one year. He stands before the court using an alias. All his priors have been under different names. This is not a man seeking rehabilitation." | |||||||||
| Moreno's sentence: 25 years to life. | |||||||||
| Many judges say the biggest question in their minds is whether defendants are likely to commit further crimes. Judges say they look for good risks, and then they gamble. | |||||||||
| "There are some cases where you are guessing only whether the person is still committing serious crimes and crimes of violence because such a length of time has gone by (since his or her last serious offense)," says Charles Sheldon, a Long Beach Superior Court judge. | |||||||||
| Guessing game | |||||||||
| Sometimes the judges guess correctly and sometimes they don't. | |||||||||
| Long Beach Superior Court Judge Bradford Andrews says he's had both types of cases. Once, he says, he took a chance on a man charged with stealing aluminum cans out of recycling bins. The defendant had a series of robberies on his record from when he was a teenager, but Andrews decided to strike the man's priors and grant him probation. | |||||||||
| Nine months later, the can collector was back in court on a similar theft charge. This time, Andrews says, he got 25 years to life. | |||||||||
| Judges are sworn to uphold the law, says Sheldon, and that means they must save their discretion until they're offered compelling reasons to use it. | |||||||||
| "So long as judges use good judgment and as long as judges are somewhat on the same wavelength as far as when we strike strikes, then I believe we have built in a way to avoid bad miscarriages of justice," he says. | |||||||||
| Judge Jean says he believes third strikes should be limited to serious or violent felonies. But that's not what the law says, so he has to put his personal opinion on the hack burner in the courtroom. | |||||||||
| "In being faithful to the law," Jean says, "I find myself committing people on these low-grade felonies to prison for 25 years to life ...and I'm wondering if we, as a society, should be committing our resources to sending these people to prison for the rest of their lives." | |||||||||
| Others, like Judge Pierce, put the onus more on the defendants. Some defendants choose to live in ways that repeatedly get them sent to prison, Pierce has said, so imprisoning them for 25 years to life isn't such a stretch. He once told a repeat offender: "You're already doing life.., life on the installment plan." | |||||||||
| Longer sentences | |||||||||
| A judge's discretion extends past striking strikes. | |||||||||
| Often, 25 years to life is the bare minimum a defendant faces, and a judge must decide whether to tack more time onto the sentence. Under the law, if a person's "third strike" consists of more than one felony - a robbery and burglary, for instance - then each felony must be sentenced individually. But it's up to the judge whether to sentence each count concurrently (to be served at the same time) or consecutively (one after the other). | |||||||||
| Even before the three-strikes law, other habitual offender laws allowed - and still allow - prosecutors to enhance prison sentences. | |||||||||
| Gun enhancements, for example, allow judges to pile extra time on for felons convicted of using a dangerous weapon in the commission of a crime. And habitual-offender enhancements can add years onto a prison term. | |||||||||
| An extreme example of consecutive three-strikes sentencing in Long Beach occurred in Judge Joseph DiLoreto's courtroom three years ago. Demetrous Jackson, a third striker who'd raped his stepmother on several occasions, was given 385 years to life. The sentence is implausible but impactful. If he lived long enough, the 38-year-old would be eligible for parole in 2305. | |||||||||
| Whether to strike strikes, run sentences concurrently or invoke sentence enhancements is a delicate decision that must be made on a case-by-case basis, judges say. | |||||||||
| Comparing cases | |||||||||
| Laid side by side, three-strikes cases can sometimes show strange discrepancies. | |||||||||
| Arthur Johnson, for instance, is serving 75 years to life for three burglaries in 1997. The 45-year-old's priors consisted of four burglaries, a grand theft and a drug charge. | |||||||||
| Meanwhile, two sex offenders -Terrance Amos, 37, and Eldon Till-man, 40 - were sentenced to less time than Johnson. | |||||||||
| Amos - who'd served prison terms for residential burglary robbery and attempted robbery in the 1980s and '90s - was convicted of two counts of molesting a young girl and sentenced in 1997 to 65 years to life. | |||||||||
| Tillman, whose priors included a residential burglary with the infliction of great bodily injury used a gun to keep a girl prisoner while he forced her to orally copulate him three years ago. He is serving 40 years to life. | |||||||||
| But while judges have discretion under the three-strikes law, a defendant's greatest chance to escape a long sentence lies with the prosecutor in the plea-bargain stages of a case. | |||||||||
| That's where career burglar Gerry Tyrone Brown found himself on that fateful day in 1998, as he sat in Judge Jean's courtroom, weighing the judge's lecture on accepting a seven-year deal. | |||||||||
| In a three-minute speech, Jean tried to convey the complexities of the three-strikes law. The judge told Brown not to expect any miracles during the trial, nor to expect any clemency during sentencing. | |||||||||
| The choice was Brown's to make, but the window of opportunity wouldn't stay open much longer, Jean warned: Take the plea bargain and serve seven years, or go to trial and risk a life sentence. | |||||||||
| "In just looking at these allegations on the complaint, you've spent probably about as much time in a courtroom as I have," said Jean, as he scanned Brown's file. "So you make your own choices. You do your own thinking. If I can answer any questions for you, I'd be glad to." | |||||||||
| A few momenta passed, then Brown's attorney broke the silence. "Your honor," said the defense attorney, "Mr. Brown indicates he will enter a plea of no contest." | |||||||||
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