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Factors considered
What makes one third-time don deserving of a second chance, while another gets a life behind bars? Where do prosecutors draw the line? |
| It's not just the nature of the latest strike, which, in most cases, isn't a violent one. The point of the three-strikes law, prosecutors say, is to take into account a continuing pattern of behavior. |
| The Long Beach courts sentenced 196 third-strikers to at least 25 years to life in the first five years of the law. |
| Of the 191 cases available for review by the Press-Telegram, 70 percent involved nonviolent third strikes, such as burglary, drug possession or petty theft with a prior theft conviction. Only 30 percent had committed violent third strikes, such as robbery, assault with a deadly weapon or rape. |
| That's a ratio that disturbs three-strikes foes, such as Melvin Farmer, a Madera County third-striker whose 1994 drug conviction was overturned on a technicality. |
| "There's no law in the United States that should be able to take a man's life for stealing deodorant, having a drug addiction or any other nonviolent offense," says Fanner, who is now a vocal opponent of the law. 'There's really nothing to argue on that. It's wrong. |
| In deciding whether to strike strikes, Kay says he asks a few basic questions: |
| What has the person done with his or her life since the prior crimes were committed? Has the person held down a job? Stayed out of trouble? Complied with the terms of parole or probation? If so, the person is a candidate for striking strikes. |
| Kay offered six years in prison to Joseph Dalvalle, now 34, after the man was caught stealing from a Southern California Edison building in Long Beach four years ago. Dalvalle's record included prior convictions for robbery and attempted robbery in 1993. But a probation report cited his community ties and family support as reasons to strike strikes. |
| Kay says he also considers the nature and age of a person's prior offenses. A rule of thumb, he says, is to strike priors if they occurred before 1980. |
| Fanya Baruti, of Long Beach, found himself in court after being caught with cocaine in 1996. The ages of his priors - three robberies between 1978 and 1984 - likely influenced the prosecutor's decision to dismiss strikes and offer a plea. Baruti was sentenced in 1998 to two years in prison. |
| The nature of the third offense also plays into the mix. |
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Mike Concha, head deputy public defender in Long Beach, says the three-strikes law is often bent in the interests of justice. |
Wide discrepancies
For more than a century, long before three-strikes came along, one of the troubling aspects of plea bargaining has been the sentence discrepancies that inevitably result. A car thief who accepts a plea deal might serve less than year in prison, while he'd face four years if convicted by a jury. |
| In three-strikes cases, the discrepancies are widened. |
| Consider Isiab Lucas and Gregory Johnson. Both were repeat offenders in their 30s when they were convicted in Long Beach of theft-related charges - Lucas for two counts of receiving stolen property, Johnson for one commercial burglary. |
| Lucas' prior offences consisted of three residential burglaries; Johnson had two robberies and an aggravated assault. |
| Plenty of factors distinguished the two cases, including the ages of the prior offenses. But the most crucial had little to do with either man's criminal record:
Johnson agreed to take a deal offered by prosecutors and was sentenced to two years in state prison. Lucas, maintaining his innocence, was convicted at trial and got 50 years to life. |
| The discrepancies aren't lost on legal players, who continue to debate the merits of a law that allows such a wide range of penalties for a single crime. |
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| "There's always
a tradeoff between wanting the judge to have some discretion ... and wanting to have some uniformity, so that there's some standardization,' says Erwin Chemerinsky, a
law professor at the University of Southern California. |
| "Obviously, it's a difficult balance, but I think that we've gone far too much on the side of discres tion, so that the same crime and the same background can get vastly different sentences based on the a prosecutor and the judge. And it's wrong." |
| But judges say discrepancies are e an inevitable byproduct of a system based on what-ifs. The defendant, the udge, the prosecutor and e the defense attorney all color how
a case will end. |
| "All of those factors are luck or unluck," says Long Beach Superior Court Judge James Pierce. "You just can't compare one rock (of cocaine) to one rock." |
Parole unlikely
Under the three-strikes law, a second- or third-striker must serve 80 percent - rather than 50 percent - of his minimum term before being eligible for parole. Those sentenced to 25 years to life, for instance, can be paroled only after 20 years; those sentenced to 50 years to 1 can be paroled after
40. |
| Even after serving 80 percent of their term, there's no guarantee of parole for these "lifers," as they're called. Gov. Gray Davis, a Democrat, approved the release of only one of the 16 "lifers" recommended for parole by the California Board of Prison Terms in 1999. Figures aren't available for this year, but board spokeswoman Dennis Schmidt estimates Davis had approved about five by early October. |
| Whether third-strikers will have better luck won't be known for years. The first one sentenced, in 1995, won't be eligible for parole until 2015. |
| That uncertainty has made the three-strikes law a powerful prosecutorial tool in obtaining guilty pleas. |
| Vernon Bowens, of Long Beach, knows that as well as anyone. In 1998, the one-time robber might
have faced no more than three years in prison for possessing less than a half gram of cocaine. But, in court, prosecutors threatened to use his juvenile record to make the
case a third strike, unless he agreed to a sentence of six and a half years in prison.
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| He did. |
| Police surprised |
| Local police say they're sur- prised that plea bargaining has assumed such a prominent role in three-strikes cases. Law enforcement agencies overwhelmingly backed the law at its inception, and many have credited it with helping to curb crime in their jurisdictions. |
| "The Long Beach Police Department has no control over how the criminal justice system chooses to handle its cases," said LBPD spokesman Sgt. Steve Filippini in a prepared statement. |
| "We are disappointed when we learn violent criminals are released on a technicality or when a third strike on a criminal record is stricken." |
| But Mike Reynolds, the Fresno man who authored the three-strikes initiative six years ago, after his daughter was murdered by two repeat felons, says he always knew plea-bargaining would occur. |
| Even the plea bargains are resulting in hefty sentences, he says. A second-strike conviction automatically doubles the term for any felony, so striking one strike can still put a drug offender in prison for an extended period. And it often does. |
| The sentences coming out of California's courts are "still adequate to dissuade crime," says Reynolds. "Even when the case is plea bargained down, that's not exactly a walk in the park." |
| Reynolds says the three-strikes law has succeeded in increasing the average sentence for all California prison inmates, from 22 months eight years ago to 38 months today. What's more, he says, the defendant is "on notice" when he makes parole: Another conviction, and he's more likely to face the law's full thrust. |
| Garcetti couldn't agree more. |
| "It really deters criminal conduct," he says. |
In dispute
Is all of this the way it was supposed to be? Is it even legal? |
| The California Penal Code bans plea bargains involving prior felony convictions unless "there is insufficient evidence to prove the prior conviction" or the dismissal is "in the furtherance of justice." |
| The latter, professor Levinson contends, is a buzz phrase that has allowed prosecutors carte blanche to plea bargain. |
| But not all prosecutors are going that route. Those in Orange, San Diego and San Francisco counties say their offices are generally against the practice. |
| Jim Pippin, who beads San Diego's Superior Court division, says his office files all three-strikes cases and refuses to plea bargain. If a prosecutor opts to strike strikes, he says, it's an unconditional decision with no basis in a plea. |
| "We don't plea bargain," he says. "We don't say, 'If you plead, we'll strike a strike.'" |
| Still, roughly 70 to 75 percent of the cases filed in San Diego get reduced somewhere along the line
- not much different from Los Angeles County - according to a comparison of county and state statistics. Some of the cases are filed in error, some are reduced by judges, and a few are lost at trial, says Chief Deputy Public Defender Juliana Humphrey.
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| Most are reduced to two-strikes cases by prosecutors who don't believe the person's criminal history fits the three-strikes mold, Humphrey says. In those cases, prosecutors will simply "dump the strikes," she says, meaning the strikes are not contingent on a plea. |
Ugly tactic
Plea bargaining in strikes cases is "kind of an ugly thing," Humphrey contends. In the end, most San Diego defendants whose strikes are struck will end up pleading guilty or no contest anyway - a reality that can pose the appearance of plea bargaining. |
| "It may look like a quid pro quo," Humphrey says, referring to the legal concept of exchanging one thing for another. "But I have to say, it really isn't." |
| Orange County Assistant District Attorney Carolyn Kirkwood contends that her office goes one step further: it rarely strikes stnkes at all. |
| "I know that judges will strike strikes, and I know there are DAs in all counties who will strike strikes," says Kirkwood, head of the county's felony panel. "Now, whether it's appropriate or inappropriate, legal or not legal ... it would really depend on the individual case." |
| "As a general rule," she says. "Orange County is very conservative in this. We plead and prove the strikes that are there." |
| Statistics from her office, however, show that out of 819 threestrikes cases filed between 1994 Next Page -> |
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