How many strikes and you’re out?

Today, Reynolds and Krisberg discuss application of the three-strikes law. Previously, they debated the three-judge panel that will review the question of capping California’s prison population, crime rates and incarceration, and prison overcrowding. Later this week they’ll focus on mandatory sentencing laws and other issues.

Sentencing commission now
By Barry Krisberg

Like most of the baby boom generation, I am more interested in nostalgia these days, but I am not really eager to re-argue the merits of the three-strikes law. In my view, it was a bad idea in the mid 1990s and it is still a bad idea today. However, there is a bigger problem in California sentencing laws that cannot be fixed by simply tinkering with the current three-strikes law. The penal code is a hodgepodge of overlapping, duplicative and contradictory provisions. Change any significant part of it and other sections collapse like a house of cards. What is needed is a systematic overhaul of the entire sentencing system. This is why so many of us are calling for the creation of a California sentencing commission.

Since the passage of the Determinate Sentencing Law (DSL) in 1976, the way we sentence offenders has been in near constant flux. Before DSL, the Legislature set broad goals in sentencing and the judiciary and the parole board did the hands-on work of applying the broad legal guideposts to specific cases. Critics of the left and right attacked the older sentencing system. Liberals expressed concerns about disparity in sentencing based on race, social class, the whims of the parole board. Conservatives decried the alleged leniency of judges and parole boards.

When the left and the right join forces, watch out. California went to a system of very specific sentences, leaving little discretion to judges, that were enacted by the Legislature or passed via voter ballot measures. Allegedly, the discretion was taken out of the sentencing system. In reality, this just gave more power and discretion to district attorneys. The unintended consequence of the DSL was to make the entire sentencing process quite rigid and politicized. Our elected officials began posturing over who was really tougher on crime. After DSL passed, there were more than 1,000 bills passed to alter sentencing, usually toward the harsher direction. Sometimes these laws were based on reaction to one heinous case — thus these laws became known in Sacramento as “the crime of the week.” There were several key voter initiatives that made further changes, including three strikes, harsh new juvenile sentencing laws (Proposition 21), diversion of drug offenders from jail (Proposition 36) and tougher parole rules for sex offenders (Jessica’s law). While parts of these revisions may have been warranted, no effort was made to reconcile or revamp the overall penal code, or to repeal antiquated sections. So we have a monumental mess that cannot be fixed with another minor adjustment.

The way out of this morass is to follow the lead of states such as Virginia and North Carolina, creating a California sentencing commission that could translate broad legislative directions into sentencing rules that could be used by judges. Several states, including Washington, Oregon and Minnesota, and the federal system have commissions that are properly staffed and informed by solid research data. In Virginia and North Carolina, these reforms have reduced prison costs and allowed incarceration dollars to be spent on the truly dangerous, using less costly alternatives for the nondangerous offenders. In these states, the actual time served for violent offenders went up. Prison crowding was reduced in both states. Most important, sentencing commissions have depoliticized the whole process and achieved a remarkable degree of bipartisan consensus. States with sentencing commissions have achieved roughly the same declines in crime that occurred in California and other locales.

It is time for the Legislature and the governor to stop bickering about minor details and pass a sentencing commission for California. Then, the hard work can begin to overhaul the current penal code imbroglio and fix what needs repair in a more systematic fashion.

Dr. Barry Krisberg is the president of the National Council on Crime and Delinquency, a criminal justice research institute based in Oakland. This fall he will be teaching a class at UC Berkeley’s Boalt Hall School of Law on prisoner reentry.

Larger catches with a smaller net
By Mike Reynolds

The L. A. Times asks a very carefully crafted question.

When the three-strikes law was originally drafted and as it appeared on the ballot in 1994, only one strike could be charged at any one crime scene; however the California Supreme Court toughened three strikes by extending the ability to charge more than one strike at any one crime.

Here is what a “single act of criminality” could actually mean. A person breaks into your house and rapes your two daughters, kidnaps your wife, takes her to the bank and forces her to withdraw $25,000, returns to your home and proceeds to set fire to the room where the daughters are tied up and watches them burn to death. He then strangles your wife to death while you are regaining consciousness from the severe beating you received when he first entered your home.

By the way, this just happened two weeks ago in Cheshire, Conn., to a doctor and his family. It would also be considered a “single act of criminality.”

It requires two serious or violent felony convictions to be considered strikes in the three-strikes formula. If they occur at the same crime scene, they should be and are strikes.

The California Supreme Court also weakened three strikes in the Romero decision by allowing judges to have the same power as prosecutors in allowing them to strike prior convictions in the interests of justice.

The end result is that nine out of 10 repeat offenders who are eligible for a third strike end up getting it reduced to a second strike and avoiding the 25-to-life term.

That fact is further reinforced by the knowledge that fewer than 250 third-strike convictions a year are taking place. With a general prison population of 170,000, you can see that three strikes is not overpopulating the system.

Also noteworthy is the fact that California has only 5% of its total inmate population, including three-strikers, serving more than 20 year terms.

This is nearly the lowest in the nation.

Each time a crime law is changed, the net gets bigger or smaller. The Supreme Court decision to expand three strikes has been more than offset with the Romero decision, which made the net a great deal smaller.

Mike Reynolds is the father of Kimber Reynolds, who was murdered 1992 at the age of 18. He is also the father of “Three Strikes and You’re Out” and “10-20-Life (Use A Gun and You’re Done),” which are said to be among America’s toughest crime laws.