Prosecutors Seek Fewer 3rd Strikes

Since the peak in 1996, D.A.s, including L.A. County’s Cooley, have been more selective in pursuing life sentences for three-time felons.

By Nicholas Riccardi
Times Staff Writer

May 27, 2003

Although the U.S. Supreme Court earlier this spring ended years of legal doubts about California’s three-strikes law, state prosecutors have steadily cut back on seeking life sentences for repeat offenders.

Statewide, the number of 25-years-to-life sentences for a third strike has dropped more than 50% since the peak in 1996. Falling crime rates account for part of that decline, but prosecutors, defense lawyers and independent analysts all say another major factor is that district attorneys are being more selective in deciding when to seek a third strike.

“Prosecutors are beginning to more finely calibrate their use of the three-strikes law,” said Charles Hobson, an attorney with the Criminal Justice Legal Foundation in Sacramento who successfully defended the constitutionality of the law before the U.S. Supreme Court earlier this year.

The change has been most notable in Los Angeles County, where Dist. Atty. Steve Cooley has halted prosecution of most nonviolent third-strikers. Just one of every three potential third-strike cases has been prosecuted to the full extent of the law since he took office in December 2000.

Cooley’s office has no statistics on the percentage of third-strike cases in which life sentences were pursued under former Dist. Atty. Gil Garcetti, said Cooley’s special counsel, Lael Rubin. But she and other prosecutors agree with defense attorneys that the percentage has dropped.

In Orange, Riverside, San Bernardino, San Diego and Ventura counties, there is no rule against prosecutors’ pursuing nonviolent offenses as third strikes.

Under Cooley’s policy, by contrast, violent offenses and major drug possession charges are normally treated as third strikes. But nonviolent offenses or lesser drug possession charges are presumed not to be third strikes. A prosecutor can overcome that presumption and bring a third-strike case against a nonviolent defendant, but only with approval of higher officials in the district attorney’s office.

Cooley’s policy put Los Angeles County, origin of 41% of the state’s three-strikes cases, into line with policies followed in San Francisco and Alameda counties.

Cooley defends his approach to the law. “I’m not afraid to go after the criminal element, but I’m also not afraid to make policies that make the system work better and the system more fair,” he said. “When you’re trying to be fair, that takes some courage, because some idiots will call you soft on crime.”

Some legal experts have praised Cooley for reducing the number of petty thieves and drug addicts consigned to prison for the rest of their lives. But critics charge that those are precisely the types of criminals voters targeted with the 1994 initiative.

Unlike most of the 24 other states that have adopted versions of the three-strikes law, California’s applies to violent and nonviolent offenses committed by anyone who has been convicted of two so-called violent or serious felonies. Sponsors of the law argue that putting repeat offenders away for life, even if their final crimes are nonviolent, is what was intended.

“Everyone wants to lock up really bad people,” said Mike Reynolds, the Fresno photographer whose daughter’s murder inspired the state’s three-strike law. “We’re just having trouble figuring out who they are.”

Among those who have questioned Cooley’s approach is Superior Court Judge Dan Oki, now supervising judge of Los Angeles County’s criminal courts.

In a confidential memorandum to judges two years ago, after Cooley’s policy was unveiled, Oki wrote that “perhaps the district attorney’s policy is what the law should be, but it is not what the law currently is”

The memo, which was advisory and had no legal impact, was inspired by a small number of third-strike cases in which judges ruled that Cooley’s office was not seeking a tough enough penalty.

One such case was that of Billy Ray Pimpton, charged with petty theft with a prior conviction for stealing $38 worth of whiskey from a Carson convenience store.

Pimpton’s prosecutor was troubled by the man’s history of violence, including a gun battle with Compton police 20 years earlier and a more recent alleged attack on his girlfriend with box cutters. Citing Cooley’s policy, top officials in his office ordered that no third strike be pursued against Pimpton. But, at his supervisor’s urging, the deputy district attorney told the judge, Superior Court Commissioner John T. Doyle, about Pimpton’s past.

Doyle denied the district attorney’s office’s motion for leniency and handed down a sentence of 25 years to life.

What Voters Wanted

“Whether I personally agree with it or not,” said the judge, a former defense attorney, sending people like Pimpton away for 25 to life “appears to be what [voters] intended to do.”

In 1996, the year the statewide drop in the use of three strikes began, the California Supreme Court gave trial judges the authority to sentence third-strike defendants to less than 25 years to life.

The fact that the decline in life sentences has continued year after year since then suggests that several factors are at work. Legal experts point to these:

*Many repeat offenders are already behind bars on third-strike convictions.

*Crime dropped 22% between 1996 and 2001 in Los Angeles County and statewide, according to statistics kept by state Atty. Gen. Bill Lockyer’s office.

*Prosecutors have become more selective.

Ninety-seven percent of all non-third-strike felony cases are resolved without a trial, usually as the result of a plea bargain. By contrast, defendants facing 25 years to life almost always demand their right to a trial. That makes district attorneys cautious about applying the law.

For prosecutors the decision is “a matter of resources,” said Hobson, “because three-strikes cases will always go to trial.”

Even at the peak of third-strike prosecutions, district attorneys exercised discretion in choosing the cases in which they would pursue a third strike, and most potential third-strike cases never ended with a life sentence. Now, although the state does not keep statistics on the rate of three-strikes prosecutions, all sides agree that the percentage of cases in which life sentences are being pursued has dropped.

For many years, Los Angeles County has been the center of arguments over the issue.

Opponents’ Rallying Cry

Garcetti opposed the law when it was on the ballot in 1994 (Cooley supported it). But after it passed, Los Angeles County became one of those using it fairly frequently. One 1995 case, in which Garcetti’s prosecutors pursued a 25-to-life sentence against a man accused of stealing a slice of pizza, is still used as a rallying cry by opponents of the law.

Garcetti allowed the heads of his office’s various branches to decide when to charge a defendant with a third strike. There was significant variation. Some head deputies filed a third strike in cases involving nonviolent crimes. Others, like Cooley, who headed the San Fernando office, used the third-strike provision primarily for people who had committed violent offenses.

During the 2000 campaign for district attorney, Garcetti attacked Cooley as soft on crime. Cooley stood by his three-strikes approach and vowed to implement it countywide if elected. He won the contest by 27 percentage points and, a month later, sent a copy of his policy to every deputy district attorney, public defender and judge in the county.

Defense attorneys said it was a huge relief.

“Every case was being prosecuted as a multiple mass murder,” said Albert Menaster, the head of the appellate division of the public defender’s office. “That is not a justice system tailored to the individual Now it’s a much more balanced and rational system.”

The number of people sent to state prison from Los Angeles County on third-strike sentences dropped 39% in Cooley’s first year in office. Statewide, the number fell 33%.

Cooley was not the first district attorney to scale back use of the harshest penalties. Tony Rackauckus in Orange County won election in 1998 vowing to lift his office’s ban on plea bargains, including in third-strike cases. But Cooley has made his handling of three-strikes cases a prominent public issue.

“Of all the things I’ve done as district attorney there’s not one thing I’ve done that’s been better received by the legal community and the public,” Cooley said. “It doesn’t matter if it’s a political group at First AME Church [in L.A.] or a group of Republicans in Pasadena.”

If line prosecutors in Cooley’s office think a 25-to-life sentence is merited, they must seek approval from their supervisors. The supervisors, in turn, are required to get the go-ahead from senior administrators. Officials say that they do not track those requests but that there are only a few dozen a year, almost all of which are granted.

Recent examples include a convicted child molester who was prosecuted as a third-striker for failing to inform authorities that he was moving to New Mexico and a felon with several assault convictions prosecuted as a third-striker for possessing half a gram of cocaine.

Some of Cooley’s prosecutors disagree with his policy.

“D.A.s aren’t the ones who decide what the law should be or the ultimate meaning of a law; that’s not our role,” said Deputy Dist. Atty. Marc Debbaudt of the gangs unit.

Deputy Dist. Atty. Tom Higgins, who has filed papers to explore running against Cooley in 2004, goes further: “What Steve has done is lay out the welcome mat for every crook in the state, that we’re soft, and the word gets out.”

The Letter of the Law

Cooley and his aides scoff at such criticisms as legally uninformed or politically motivated. They say they are following the letter of the three-strikes law, which permits prosecutors to act “in the furtherance of justice.”

The dispute pivots on which is the main factor in determining whether to pursue a third strike: a repeat offender’s criminal history or the nature of the new crime. In a 1998 ruling, the state Supreme Court said the defendant’s past must be a major factor.

Reynolds, the Fresno photographer, is critical of Cooley’s policy, but said advocates of the law believed that local prosecutors were best equipped to identify criminal threats. “It’s up to the people of your community to decide how tough they want this law prosecuted,” Reynolds said.

Times staff writers Stuart Pfeifer and Tracy Wilson contributed to this report.