The Law That Brought the Criminal-Justice System to Its Knees

Charles L. Lindner is former president of the Los Angeles County Criminal Bar Assn.

Superior Court Judge Lance A. Ito sits in Department 100 on the 13th floor of the Criminal Courts Building. One suspects Ito knows full well that he doesn't have enough judges to call tomorrow's balls and strikes, much less the anticipated wave of "three-strikers."

As the Criminal Division's assistant supervising judge, Ito must find courtrooms for criminal jury trials. There are 33 in the Criminal Courts Building downtown. If he comes up empty there, he has to "go shopping." First, he'll look for any available criminal courtroom in Los Angeles County; next, for any available civil trial court, and, finally, for any courtroom that has a jury box, regardless of the judge's assignment.

Ito knows that any prosecution attempt to broadly impose "three strikes you're out" will bring an already infirm criminal-justice system to its knees. Even before "three strikes" became law, the Superior Court was in the habit of desperately searching for courtrooms to move 40,000 felonies annually from one end of the criminal-justice system to the other, with just over 100 assigned judges.

What makes this latest solution to the crime problem so irritating is that the politicians who passed "three strikes" knew it could never be meaningfully enforced. But, alas, we've traveled this road before in California.

* In 1975, the presumed anti-crime panacea was a "use a gun, go to prison" bill, authored by then-Sen. George Deukmejian. It required judges to impose prison terms if a firearm was used in the commission of a felony. Now, nobody uses a gun to commit a crime, right?

* In 1978, the "Briggs Initiative" restored the death penalty. Since then, at a cost of a billion dollars, two people have been executed, one voluntarily.

* In 1982, the Mothers Against Drunk Driving--MADD--gave California the harshest driving-under-the-influence laws in the country. After a one-year dip, in 1983, drunk-driving arrests have continued to rise despite mandatory jail time for repeat offenders and draconian penalties for first-timers.

* Also in 1982, voters passed Proposition 8, the "Victim's Bill of Rights." It forbade plea bargaining on serious felonies, added five years of jail time for each previous felony conviction and boosted prison sentences for repeat offenders. Result: California's prison population grew from 18,000, in 1982, to 126,000 today, with little or no decrease in the crime rate.

* 1990 brought us the "Speedy Trial Initiative" which, in its execution, has provided neither speedy trials nor initiative. In fact, the number of felony criminal-jury trials has dropped.

Now comes "three strikes."

Think of the criminal-justice system as plumbing. The court system is a series of small pipes under enormous and constant pressure as a result of the large volume of defendants shoved into it by police and prosecution. One court pipe, called "plea bargaining," shunts the accused through the system with just a cursory look and sends them off to prison, jail or probation. The other pipe has a series of extremely expensive filters called "jury trials," and defendants moving through this pipe travel slowly, so that their guilt or innocence can be finely analyzed.

The defendants, and only the defendants, control the flow by saying not guilty at their arraignments. Under our current plumbing, 97% of them must pass through the plea-bargaining pipe. Only 3% elect the fine analysis of a jury trial. The capacity of the jury-trial pipe is already full; any added pressure will cause the system to rupture.

Few defendants facing a 25-year-to-life "top" are going to plead guilty. They will choose the already backed-up jury-trial pipe, and the criminal-justice plumbing will break down. But not only criminal justice is affected.

Last week, District Attorney Gilbert L. Garcetti announced he is jettisoning long-established sections of his office--environment, consumer affairs and major frauds, among others--to "free up" enough experienced deputies to try "three-strikes" cases, for which there are no courtrooms. Each of these sections was paid for by state or federal funding, so each deputy D.A. transferred back actually costs the D.A. money and reduces his operating budget. Garcetti is essentially robbing Peter to pay Paul.

Even if Garcetti moves a couple of dozen more prosecutors into "three strikes" prosecutions, they will become little more than legal Dutch boys with thumbs in the criminal dike, trying to hold back a tidal wave of new cases. Already, optional felony-misdemeanors, known as "wobblers," are being sent wholesale to the City Attorney's offices for misdemeanor prosecution. Assault with a deadly weapon and commercial burglary, for example, are wobblers.

A clue to just how rigorously "three strikes" will be enforced may be found in the experiences connected to Proposition 8. After several months of trying to live with the proposition's "no-plea-bargaining" provision, the system's players decided that ignoring it was better than watching the system collapse. The clause is now enforced, if at all, in the months--say, four--leading up to a contested district attorney's election. Of course, everything negotiable is continued until the week after the election.

As for the pyramiding of five-year enhancements for prior convictions, when Judge Ito and his colleagues have no trial courts available on the statutory "last day" for trial, the D.A. can either negotiate or watch his case be dismissed for lack of a courtroom. The "priors" have a way of becoming negotiable.

All that has been accomplished by "three strikes" is to allow a frustrated citizenry vent its rage at government-directed targets, in this case, habitual criminals. But as George Orwell made clear, under Big Brother things always got worse, but the public felt better for having someone to blame.*

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