Striking Out on Judicial Independence

In the wake of the state Supreme Court decision in June relating to sentencing in “three strikes” cases, many people have expressed fears that judges would overlook or disregard prior convictions and exercise too much leniency. Such comments risk eroding the faith of Californians in the judiciary, creating a situation in which the voters may unnecessarily feel compelled to support reckless and extreme measures.

The ruling merely upheld the rightful power of the court in its “three strikes” sentencing role to strike or dismiss prior convictions in the furtherance of justice so long as that action is not taken to accommodate judicial convenience, because of court congestion, simply because a defendant pleads guilty or due to a judge’s personal antipathy for the effects that the “three strikes” law would have on a defendant.

Moreover, the ruling requires the trial court, in exercising its discretionary power, to first consider the interests of society, as represented by the prosecution, in determining whether to strike a prior and explicitly states that it would be improper to ignore the defendant’s background, the nature of the present offense and other individualized considerations. In the rare case of an abuse of discretion, the mechanism exists to correct such an error by applying for relief in the appellate courts.

In those carefully chosen instances in which judges act independently to strike a prior conviction to impose a sentence less than 25-to-life in the interests of justice, the sentences are still at least three times more than if the priors did not exist. At a minimum, under such “second strike” sentencing, the defendant must serve at least 80% of the time before parole eligibility as opposed to 50% in non-strike cases.

The following are just a few examples of actual sentences in what were third-strike prosecutions in Los Angeles, in which judges struck one prior to exact appropriate punishment: nine years for stealing 39 cents from a car, eight years for evading the police, six years for stealing metal loading ramps from a moving yard, nine years for possessing 13 tablets of codeine without a prescription. Suffice it to say that trial court judges have been given a bum rap when they have been accused of being lenient.

Nevertheless, legislation has been proposed to eliminate in most cases the courts’ discretion to make appropriate sentencing decisions.

One bill would mandate “three strikes” sentencing in any case in which the defendant has a prior violent felony conviction, no matter how old, and irrespective of the defendant’s good conduct during intervening years and without consideration for how inconsequential the current charge. The Los Angeles County public defender’s database indicates that in almost two-thirds of the cases in which there are violent prior convictions, the current charge was a nonviolent, non-serious offense. The proposed legislation would entirely eliminate judicial discretion in these cases.

There are competing similar proposals that would preclude individualized sentencing. One would apply to cases in which the current offense occurs within three, five or six years of release from custody for a violent or serious offense. It is unclear whether short periods in custody for minor probation violations would trigger this.

Another proposal would prevent sentencing based on all the appropriate factors if the current charge involves a violent or serious offense. Consequently, if the current charge asserts that the defendant entered a garage attached to a house to obtain food, thereby making it a residential burglary and a serious offense, there would be no judicial discretion, irrespective of how old the priors might be, the intervening good conduct of the defendant notwithstanding.

There is a serious risk that if the law is amended to impose such extraordinary inflexibility, the instances of grossly disproportionate punitive sentences will erode the moral suasion of this law, resulting in jury nullification on a large scale. It is not necessary to shackle all judges in all of these cases. There is an effective remedy in place for any abuse of discretion.

It is essential that there be an independent reviewer of the awesome power of the prosecution’s “three strikes” sanctions to ensure that the sentences imposed are commensurate with a defendant’s record and the circumstances and nature of the current offense. Otherwise, we will have institutionalized “the Queen of Hearts” and her “off with their heads” philosophy in our courtrooms. Californians deserve better.