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Appeals courts seldom overturn 3rd-strike sentences |
| By Wendy Thomas Russell Staff writer This is a reproduction of the Long Beach Press-Telegram series on Three Strikes. Dated November 2, 2000. |
| Richard McCrimmon's day in court came and went. |
| In 1996, he was convicted of stealing two speakers from an old-model car parked in the 2200 block of East 10th Street in Long Beach. With three residential burglaries already on his record, he was sentenced to 28 years to life under the three-strikes law. |
| Before the law took effect, McCrimmon would have faced no more than one year in prison, with an additional three years for his prior burglaries. |
| But McCrimmon, 36, was optimistic. |
| Maybe, he thought from his cell in Lancaster State Prison, the Second District Court of Appeal would find his sentence constituted cruel and unusual punishment. Maybe the judges there would see he didn't deserved to die in prison. |
| Like thousands of third strikers, McCrimmon pinned his hopes for freedom on the appeals court. And like thousands, his hopes have been shattered. |
| More than 92 percent of three-strikes convictions appealed to the Second Appellate District - one of six districts in California - are affirmed in full, says Joseph Farnan, a Los Angeles appeals attorney That means the three-judge panel find no reason to overturn the convictions or send the defendants back to the trial judge for resentencing. |
| In McCrimmon's case, San Francisco attorney Chris Redburn argued that his client's sentence constituted cruel and unusual punishment - a violation of the Eighth Amendment. He noted that the prisoner's prior strikes took place in 1985 and 1986. |
| "The punishment imposed on Mr. McCrimmon is among the most harsh known to our criminal justice system," Redburn wrote in a brief. "He received a sentence of 28 years to life for taking speakers from a 'junker' car." |
| McCrimmon's punishment was disturbingly higher than that imposed for much more serious offenses, Redburn argued. In the absence of prior strikes, one might have received no more than four years for disfiguring someone with acid, for instance, or sodomizing a child. |
| But most strikes cases fail to prove the "cruel and unusual punishment" theory, which requires a penalty to be "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." |
| Farnan says the Second District's pat response is: "How can it be unusual if we have 1,000 cases (just like it)?" |
| Jay Glaser, a Long Beach defense attorney, takes issue with that logic. |
| "Just because we're doing it frequently, that makes it OK?" he asks. "We said the same thing about asbestos." |
| But the appeals court hasn't sat idly by watching trial courts make all the decisions, either. |
| Stalking, burglary Gordon Acker, 56, was sentenced in 1996 to 60 years to life after being convicted of stalking and burglarizing a woman in Long Beach. His priors - a residential burglary and assault with a deadly weapon - were almost 15 years old at the time. |
| Two years ago, the higher court ruled the sentence was too harsh, and Long Beach Superior Court Judge Margaret Hay reset the penalty at 35 years to life. |
| Sentences also get reduced when courts of appeal decide to overturn three-strikes cases on technicalities. |
| Robert Taylor, 41, was sentenced in April 1996 to 25 years to life for felony joyriding, having been convicted of aggravated robbery in both 1979 and 1983. But the appeals court said the jury in Taylor's case should have been able to consider misdemeanor joyriding as an alternative to felony joyriding. |
| The court granted Taylor a new trial in late 1997. And, as part of a subsequent plea bargain, he agreed to spend 32 months in Mule Creek State Prison. |
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