No On CA Prop 66: California Deputy District Attorney

I’ve never written something about politics like this before.  I usually take a pessimistic view of such things, then assume that somehow American society will manage to muddle along anyway.  But this proposition demands an exception - it’s so damn important.

I sincerely, wholeheartedly, urge those of you who are California voters to vote “No” on Proposition 66.  It is a terrible bill, and while many people reasonably deplore the Three Strikes law, this “cure” is dreadful.  My reasons for this position follow.

(expires 11/3/04)

REASONS:

1. Read the expanded voter-pamphlet analysis against Prop 66.   It gives a pretty good explanation of how the law would work.

2.  Here are just a few scenarios from SOME of the crimes that would no longer be “serious or violent” felonies, justifying enhancement of the sentence either by 3-strikes or other rules now on the books:

-Residential burglary, if the resident is not at home.   The sentence range for this is 2, 4 or 6 years.  The burglar who hits your house is eligible for parole after a maximum of 3 years, because of “good-time/work-time” credits.  (See below.)  If he pleads guilty at an early stage, it’s likely to be a lot less than that.  What it he hits your neighbor’s house, too?  Legally, he can only be sentenced to 16 months for each additional residential burglary after the first one.  What if he’s a nice, cuddly, 1st-offense burglar?  They rarely get more than the low term of 2 years (eligible for parole after 1) and very often get probation.   What if he gets out and does it again?  Same thing again – a maximum of 2, 4 or 6 years divided by 2, with no extra time for repeating the offense.   In fact, this is one of the worst things about the proposition – it strips away increased sentencing for recidivists in any of these categories.

-Unarmed robbery.  Sentence 2, 3 or 5 years.  So if it turns out that the guy simulated a gun or used a fake one to take your wallet it’s not a serious or violent felony, and he won’t be locked up more than 2 1/2 years.

-Torching a commercial building, car, boat, or anything but an occupied dwelling, if the firebug doesn’t actually cause great bodily injury to anyone in the process.

-Gangsters extorting money, running dope rings, dealing arms or beating people up to proclaim their power.

-Unintentional infliction of great bodily injury. Now, this sounds sensible at first, but consider this scenario: drunk driver creams you and puts you in a wheelchair for life.  Not a serious or violent felony.  Nor is it if you get creamed by someone fleeing the police.  Repeat drunk drivers can keep hurting people without getting stiffer punishment for the repetition, so long as they don’t intend to put you in that wheelchair when they decide to blow through red lights at 120 mph.

And that’s just a tiny sampling of them, folks.   

3.  But doesn’t the bill include stiffer punishment for child molesters?  Not significantly. It raises the maximum basic sentence for certain crimes from 8 years to 12, but sex crimes punishment is already tremendously complicated, and this just makes it worse.  Beside, first-time molesters rarely get the maximum sentence anyway in the real world.


4.  A Worm’s-Eye View of 3-Strikes History:

For many decades, California has not put enough money into the criminal justice system to actually handle our criminal caseload the way that most people expect.  For reasons of economy, and to provide an incentive to prisoners to behave themselves while in prison, the Board of Prison Terms began giving inmates “good-time/work-time” credits against their sentences that grew and grew, until now a reasonably well-behaved prisoner doing time for anything but a serious or violent or 3-strikes felony serves no more than 1/2 of his sentence before he is eligible for parole.  Also, you should know that any time that he spends in jail waiting for trial gets counted towards his sentence, although he only gets 1/3 off for this period of time.

If that parolee keeps his nose clean for a year after release for any crime but murder, his parole is discharged at that point and he’s a free man.  Even if he violates parole, he can only be sent back for a maximum of one year for each violation.

Now, that’s AFTER he’s actually been convicted and sentenced in the courts.

Court dockets are crowded, too, so DA’s routinely offer the softest, most reduced sentences to those who will plead guilty early.  (Commonly known as “plea-bargaining”, a practice that has a very bad name with most folks outside the criminal law business, but the system would collapse without it.)  And if a judge believes either that: 1.  An accused deserves lighter punishment than is offered by the DA, or, 2.  S/he can move more cases off the docket  by undercutting the DA and promising an even lower deal, that judge can do so, regardless of the DA’s opposition.    Judicial undercutting happens A LOT, and corrupts the entire process.  That’s how you get situations like the Polly Klaas case – truly horrendous criminals kept getting out on short sentences, because that was how the system worked.   Plead guilty, and you can get a fraction of the sentence you’d get if you went to trial.  

OK, so there was a big uproar about the Polly Klaas case, and the 3-strikes law was born.  In my view it was a flawed solution to  the problem, but not as flawed as the news media makes it out to be.

There’s a lot of talk about petty thieves or minor dopers (with a long history of serious crimes) getting life terms, and it’s nearly always false, now.   In the early days of the 3-strikes law it happened, but a California Supreme Court decision about 8 years ago gave  judges  the power to dismiss the strikes if they feel that it’s appropriate to do so.   In my office, we routinely dismiss strikes if the new offense is minor.  Remember too  the incentive to judges for undercutting, to get one more case off their docket.
  
The media have repeatedly mischaracterized these cases because it’s so deliciously shocking to think that someone is going to prison for life for stealing a loaf of bread.  Wow, what a story!   It’s fiction.  

In over 20 years of practice, I’ve never seen a first-time dope possessor go to prison unless he repeatedly violated probation; and even the first-time sellers get probation unless they’re dealing kilos.    (And “dope” here means cocaine or heroin, not marijuana, speed, or pills, which carry far less punishment)    In fact with Prop 36 now, this is what happens to a first-offender arrested for possession for personal use:  1.  He gets deferred entry of judgment, which means that if he completes a drug program on the lines of traffic school, and doesn’t get arrested again for 18 months, the case is dismissed.  2.  If he screws up on DEJ too many times, he’s then eligible for Prop 36 – a slightly more rigorous program, which results in dismissal, again, if he satisfactorily completes it.  What if he screws up now on Prop 36?  He gets a stern talking-to, and gets put on probation again.  And again?  Another stern talking-to.  He can’t actually be jailed until his 3d violation of probation.   It’s exceedingly rare now that we ever see a dope-possessor go to prison, but it’s not because they’re all being rehabilitated, just that they keep getting put on probation over and over until the 3-year probationary period is up.

5.   The effect of the bill is to release thousands of felons from prison early, and keep them from staying there very long if they repeat their offenses.   Guess where they go?  Back into our neighborhoods.  Will they be rehabilitated?  Considering that recidivism statistics are usually about 80%, it’s unlikely.   There’s a lot of talk about the costs of keeping people incarcerated, but only rarely do you hear about the savings to society by preventing the crimes that prisoners would commit if they were free to commit them.  California’s crime rate is actually coming down, and many people believe that 3-strikes has something to do with that.

The economics of crime not committed is significant.  Perhaps there are diminishing returns in some cases, but let’s take the example of the drunk driver who injures people unintentionally – that can be millions of dollars per collision, not to mention the grief and suffering to victims whose lives are irrevocably changed.

In sum, Proposition 66 is a terrible law in counter-reaction to what many people believe is a bad law.  Please vote “NO”.