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District attorney candidates disagree on three-strikes law |
By Wendy Thomas Russell
Staff writer
This is a reproduction of the Long Beach Press-Telegram series on Three Strikes. Dated November 3, 2000. |
| When Los Angeles County voters go to the polls Tuesday to elect a district attorney, they'll be voting not only for a man, but for a policy on the much-debated "Three Strikes and You're Out Law." |
| A vote for District Attorney Gil Garcetti would affirm his policy of pursuing three-strikes prison sentences 25 years to life for violent or nonviolent repeat offenders whose previous records are littered with violent or serious offenses. |
| Challenger Steve Cooley, on the other hand, says he would enforce the law only when a third strike is serious or violent a simple change that cuts to the core of what three-strikes opponents have been trying to do for six years through the courts, the Legislature and voter initiative. |
| Cooley's softer enforcement wouldn't change the law itself, but would remove its effects from hundreds of third-strikers in Los Angeles County every year. |
| In Long Beach, for example, more than 90 nonviolent, nonserious offenders were sent to prison for 25 years to life during the law's first five years, a Press-Telegram study found. While their third strike wasn't defined as serious or violent, their prior histories were, with first and second strikes ranging from burglary to rape, from robbery to murder. |
| Under Cooley's leadership, most of these people would have been prosecuted for their new crimes but not under the three-strikes law, with its longer minimum sentence. |
Key issue
"This is a critical core issue and one in which we differ," says Cooley, a head deputy in Garcetti's office. "I emphasize that the nature of the new (third) offense is a very important factor in whether we seek a 25-to-life sentence." |
| Garcetti agrees that the three-strikes law is a "big issue" in the election and stands behind his track record. |
| "This is one of the key reasons that crime is down," he says. "We have vigorously enforced the law, and it has truly acted as a deterrent." |
| But has it? That's a hard question to answer. |
| It's true that the number of crimes reported in California has dropped steadily over the last seven years, according to the state Department of Justice. |
| But analysts point out that crime is down everywhere. In San Francisco, where the three-strikes law is little enforced, reported incidents of crime have fallen at the same rate as in Los Angeles County. Those rates mirror declines around the country, including states with no three-strikes law. |
| It's nearly impossible to isolate individual factors that affect crime rates, most analysts say. A strong economy, school programs, better policing and changing demographics have all been cited. |
| But common sense must give some credit to the three-strikes law, says Long Beach Superior Court Judge Bradford Andrews, who has presided over numerous three-strikes cases. |
| "It seems logical," he says, "that (when you) take the most active criminals and put them in prison for long periods of time, it's got to have a beneficial effect." |
Too early?
What clouds the issue is that only six years have gone by since the first third-striker was sent to prison. Many of the inmates now serving 25 years to life would still be serving time without the three-strikes law. Their most recent offense and their record of prior offenses would have guaranteed them years of prison time. |
| Under one law, for example, anyone convicted of a serious felony can get an extra five years in prison for each prior serious felony on his record, as long as the crimes are less than 10 years old. |
| Another law adds one year for each prior felony when the new offense is any felony meriting a prison sentence. The priors must be less than five years old. |
| These laws are often imposed in combination with the three-strikes law, elevating a sentence, for example, from 25 years to life to 35 years to life. |
| So, the real comparisons in crime rates may not come until a few more years have passed. That's when, without the law, the first third-strikers would normally be getting out of prison.
Not that the law is being pressed to its maximum potential, despite Garcetti's tough stance. |
| In Long Beach, the Press-Telegram found, nearly 80 percent of three-strikes defendants sentenced between March 1994 and March 1999 received less than the law's so-called "minimum" term. In downtown Los Angeles, the percentage was even higher, according to figures provided by the Los Angeles County District Attorney's Office. |
Strikes ignored
Most of the reduced sentences resulted from prosecutors or judges "striking strikes" ignoring one or more of a defendant's previous crimes in exchange for a guilty plea. |
| In an interview, Garcetti acknowledged that plea bargains play a major role in his policy. He says his prosecutors offer deals to all third-strikers deemed deserving, and pursue 25 years to life for the rest. "The rest" means those whom prosecutors see as a consistent danger to society or a drain on the system. |
| Garcetti says he's enforcing the law the way voters wanted it enforced. Despite the number of plea bargains, the county still provides 42 percent of the state's three-strikes prison population, according to the California Department of Corrections. |
| That's far more than any other county in the state the closest being San Diego County, which provides only about 9 percent of three-strikes prisoners. |
| Mike Reynolds, the law's author, says placing the three-strikes issue at the forefront of the county's district attorney race is entirely appropriate. He says it's up to voters to help mold the law by electing a district attorney who thinks the way they do. |
| "This law is reaffirmed every four years when you re-elect a D.A.," says Reynolds, a Fresno man who wrote the three-strikes initiative after his daughter, Kimber, was killed by two repeat felons. "The voters have the opportunity to adjust the law to the intensity that they want." |
| In fact, from its inception, the three-strikes law has always made a terrific foundation for a campaign platform. |
| The law began as Reynold's brainchild, and its tough-on-crime concept was as simple to understand as the strikeout call it was named after: Commit two serious or violent felonies, and the next felony gets you 25 years to life. |
Slow start
Initially, legislators didn't see a need to increase prison terms. When then-Assemblymen Jim Costa and Bill Jones took Reynolds' proposal AB 971 to the state Assembly's Public Safety Committee, the bill was roundly rejected. |
| Reynolds persisted, starting a petition drive to get a three-strikes initiative on the ballot. And it was during the drive that Reynolds got his big albeit tragic break: the kidnapping and murder of 12-year-old Polly Klaas. |
| In a case that gripped America, Polly was snatched from her Petaluma bedroom on Oct. 1, 1993, and strangled by Richard Allen Davis, a paroled felon. |
| Polly's father, Marc, came out in support of Reynolds' initiative. So did California voters, who were deeply troubled by the murder and driven to do something about it. |
| "All of a sudden," Reynolds says, "we couldn't answer the phones fast enough." |
| The petition, which needed 380,000 signatures to qualify for a ballot measure, grew to 840,000 in a matter of weeks. |
| "It was the fastest-qualifying initiative in the state's history," Reynolds says. "There was no way that we would have qualified this without the Polly Klaas murder. It was a timing thing; it really was." |
| On March 7, 1994, Wilson signed the three-strikes law, with almost unanimous backing from the Assembly and state Senate. Eight months later on Nov. 9 72 percent of the state's voters voiced their own support by passing Proposition 184 at the polls. |
| Since then, the sheer number of defendants who qualify for the three-strikes law almost 1,000 during the first five years in Long Beach alone has proved just how many offenders spend their lives walking through the revolving doors of prison. |
Dire predictions
When the law was passed, opponents said it would lead to overcrowded prisons and other ill effects. Even Garcetti opposed the law, saying third-strikers would opt for trial in most cases because they faced 25 years to life if they admitted the charges. |
| But most of the negative forecasts have not held up. |
| In 1994, a study by RAND Corp., a Santa Monica-based think tank, predicted the three-strikes law would be prohibitively expensive to enforce. It said the Department of Corrections' portion of the state's general fund would jump from 9 percent in 1994 to 18 percent by 2002. |
| It's true that prison construction is on the rise it has been since the 1980s. But the 1999-2000 general fund allotted just 7.2 percent of its total, or $4.6 billion, to the department. That was $21,243 a year for each inmate, the department said. |
| Peter Greenburg, co-author of the RAND report, says the study was based on full enforcement of the law. But with so many criminals avoiding enforcement through plea bargains or judicial discretion the law has never reached full implementation. |
| Also, he says, the study's authors didn't count on a nationwide decline in crime. |
| "That's totally taking the pressure off both the courts and the prison system in terms of capacity," Greenwood says. |
| Some analysts predicted the law would clog the courts because defendants, facing mandatory terms of 25 years to life, would refuse to plead guilty. But the process of striking strikes has encouraged defendants to plead guilty and avoid the possibility of a third-strike sentence. |
| Second- and third-strike cases do account for a large number of criminal trials, but they haven't caused the anticipated logjam. Long Beach judges have estimated that about half of their criminal cases are two-strike and three-strike cases. |
| "There was a lot of anxiety when it first came out," says Judge Andrews. "Ultimately, it sort of worked itself out." |
Falling crime rate
At the time the law was passed, its backers predicted that crime would plummet. And crime has, in fact, dropped significantly in the last several years. |
| But the role of the three-strikes law in decreasing crime shouldn't be overstated, says the Justice Policy Institute, which examined crime reports from the state's 12 largest counties in a report last year. |
| The institute, a San Francisco-based research group, compared the three-strikes sentences to the total number of felonies by county. It says counties with the highest three-strikes sentencing rates Sacramento and Los Angeles saw no greater decline in crime than counties with the least San Francisco and Alameda. |
| Whatever the predictions, opponents of the law have made many attempts to get it changed over the past six years. But in the court of public opinion, the jury's still out. |
| A survey organized by professor Robert Nash Parker of the Presley Center for Crime and Justice Statistics, at the University of California at Riverside, quizzed about 4,200 Californians over a six-month period ending in September 1999. |
| The random phone survey found that 96 percent supported harsh sentences for violent offenders, but only 47 percent thought serious property crimes should be treated with similar vigor. |
| But earlier this year, a petition authored by Families to Amend California's Three Strikes, a Los-Angeles based organization made up mostly of third-strikers' relatives, failed to gain the 420,000 signatures required for a ballot initiative. |
| Their measure would have allowed voters to reconsider whether to limit a third strike to serious or violent felonies. |
| "I don't think we were close," conceded a co-founder of the California Three Strikes Project, the name given to the campaign. |
Voter support
Ballot results in California's March 2000 primary showed a public tide in favor of stricter sentencing guidelines for repeat offenders. Proposition 21, authored by former Gov. Pete Wilson, expanded the list of crimes eligible as strikes to include extortion, threats to victims or witnesses, gang-related felonies and the use of a firearm in the commission of a felony. It also raised burglary to violent-crime status. |
| Attempts at softening the law through the Legislature have been short-lived. |
| Two years ago, Sen. Tom Hayden, D-Los Angeles, tried to pass Senate Bill 79, aimed at limiting the third strike to serious or violent felonies. After his bill was struck down on the Senate floor, Hayden came back with a gutted version that proposed a task force to review the law and make recommendations. |
| That version died early this year, as did a similar bill, Assembly Bill 2447, by Assemblyman Rod Wright, D-Los Angeles. It needed 41 Assembly members to vote yes; only 24 did. |
| Before Wright's bill died, Hayden aide Rocky Rushing lamented what he saw as continued embarrassment for California if the three-strikes law went unchanged. |
| "Petty thieves and junkies will continue to be sent away for 25 years to life," he said, "and the state will continue to waste valuable resources." |
| Part of the challenge in getting the law revised statewide is that the three-strikes initiative passed by voters requires a two-thirds vote in the Legislature to change it. And two-thirds is almost insurmountable, Rushing said. |
Court rulings
|
| Another hope for reformers lies in the state and federal supreme courts. |
| In January, the U.S. Supreme Court rejected a petition to hear the case of Michael Wayne Riggs, a man sentenced to 25 to life after stealing a bottle of vitamins from a supermarket. In a dissenting opinion, four of nine justices said they had "grave reservations" about "wobblers" being used as third strikes. |
| Wobblers are low-grade crimes such as joyriding or petty theft with a prior theft conviction that can be filed as either misdemeanors or felonies. |
| Some defense attorneys hold out hope that the next similar case will get the fifth vote needed for a hearing. |
| It wouldn't be the first time a higher court ruling has changed the way California treats third-strikers. And the court doesn't always come down on the same side. |
| In 1996, in People vs. Romero, the California Supreme Court gave judges the discretion to erase prior strikes. That was a win for three- strikes defendants. |
| Then in 1998, in People vs. Benson, the state Supreme Court upheld the prosecution's right to count closely related crimes as multiple offenses. A single incident involving robbery and assault convictions, for example, could count as two prior strikes. That was a win for the prosecutors. |
| But the Supreme Court has chosen not to remove the state's right to use nonviolent crimes as third strikes, despite a number of petitioners asking it to. |
Nonviolent crimes
Opponents of the law say they're concerned over the number of third-strikers whose final crime was nonviolent burglary, drug possession, petty theft, among others. The Press-Telegram found that 70 percent of those convicted of third-strikes in the Long Beach courthouse during the law's first five years were arrested for nonviolent third crimes. |
| To Deputy Public Defender Kenneth McDonald, putting petty crooks in prison for mandatory life terms undermines the job of the court. |
| "The whole purpose of the criminal justice system is to temper the people's desire to get even," he says. "Three strikes doesn't temper that. It's out of proportion to what the person did."
If given the chance, the law's opponents would like to see petty offenses, juvenile offenses, multiple strikes and old strikes all removed from the list of past crimes that count toward a third-strike sentence.
|
| What's more, they say, the law shouldn't be retroactive. By making it apply to crimes committed before the law was passed, felons have no chance to take back past plea bargains struck in a day when their crimes had less bearing on future cases. |
| In 1988, for instance, a felon could agree to plead guilty to two counts of aggravated assault in exchange for a short jail term. Now, if he's a third-striker, he's looking at 25 to life for any felony. |
| "The detriment of three-strikes is that it is a very large net," says Long Beach prosecutor Christopher Frisco, who supports the law. "And, in that net, you trap defendants who are not necessarily dangerous criminals and who would get sent away for 25 years to life for a nonviolent felony because they had one brush with the law when they were a juvenile." |
Appeals fail
But California's appellate courts have not been sympathetic. |
| The Second District Court of Appeal, for example, upheld a sentence of 25 years to life for Alonzo Collins, 37, a third-striker who stole a microwave oven from a Montgomery Wards store in the Long Beach Plaza mall. |
| Collins "has relentlessly pursued a criminal career since 1980," said the three-judge panel in its written decision. "He asks us to look at the microwave theft in a vacuum and determine that his sentence is unduly harsh. But we must look at the entire picture, which reveals that (the) defendant will never comport himself legally." |
| Stephen Kay, head deputy for the district attorney's Long Beach branch, says each case is carefully reviewed and offers are made to those defendants deemed deserving of a second chance and sometimes a third, fourth or fifth. |
| The weakness in the system, say critics, is that it's sometimes hard to tell which third-strikers are deserving and which aren't. |
| "Everyone wants to lock up bad people," says Reynolds, still a three-strikes activist. "We're just having a little trouble figuring out who these bad people are." |
| But three-strikes comes closer than any other law in sorting out the good from the bad, he says. Sure, there may be some who don't belong in prison for the rest of their lives, he says. But there are many more who do. |
| "It's about chances and who's gonna get them," Reynolds says. "And, at some point, you need to say that the next chance has to belong to the would-be victim." |
Klaas opposed
Meanwhile, the Klaas family has come out vehemently against the three-strikes law, saying it puts petty thieves on par with Polly's murderer, and there is something inherently wrong with that. |
| In a published letter, Joe Klaas once wrote: "Added to the grief that Polly's death has caused, my family now regrets that the law passed in her name casts too wide a net, fails to target the hard-core offenders it set out to reach and has diverted critical funds from crime prevention and education." |
| Even some prosecutors, such as Norwalk's Head Deputy District Attorney John Lynch, say tough-on-crime laws may be popular but they're also expensive. |
| Lynch, who ran against Garcetti in 1996, says such laws are powerful crime-fighters but the state may not be able to afford them for much longer. |
| "It's a pendulum," Lynch says. "Now, it's swung pretty much as far as it can swing."
But many prosecutors says the three-strikes law is a powerful crime-fighting device they hope to have in their tool boxes for years to come. |
| And including nonviolent crimes in the law's net is part of what makes it effective, Reynolds says. In states where the law applies only to violent offenders, few have been prosecuted under it. Reynolds says convicts know that. |
| "You think you're going to bluff these guys?" he says. "They've seen tough laws come and they've seen tough laws go. And nothing has gotten their attention. Now, this is getting their attention." |
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