Third-Strike Plea Bargains on Rise in O.C.

Since Orange County Dist. Atty. Tony Rackauckas took office three years ago, the number of three-strikes cases settled with plea bargains has increased significantly, prompting debate over whether his policies are furthering justice or obstructing it.

At the same time, according to an analysis of court and state records, Orange County has had a sharp decline in the number of repeat felons receiving life sentences, recording the biggest drop in the state in the years since Rackauckas became district attorney.

Rackauckas took office with the promise that he would lift his predecessor’s longtime ban on prosecutors participating in plea bargains. The move has been hailed by many judges and prosecutors for streamlining court operations and better ensuring that punishment fits the crime. But critics said the new policy skirts the law’s intent and creates the potential of innocent defendants being coerced into taking deals.

A Times review of more than 1,000 Orange County three-strikes cases--those in which some felons face life in prison for a third conviction--found that under the Rackauckas administration:

* Nearly 90% of the three-strikes cases were resolved without trials--a significant increase over Rackauckas’ predecessor, Michael Capizzi.

* Nine out of 10 three-strikes cases resolved during Rackauckas’ first three years in office ended without the defendant receiving the maximum sentence, 25 years to life in prison. The vast majority--90%--of those sentences were signed off by prosecutors as part of plea agreements.

* Orange County’s record is part of a statewide trend of fewer three-strikes defendants getting life sentences. From 1996 to 2000, the number of repeat offenders in Orange County sentenced to life declined from 78 to 29--a 63% decline. In Los Angeles, the number dropped by 44% and statewide by 39%, according to the California Department of Corrections.

Rackauckas’ pledge to lift his predecessor’s plea bargaining ban was a central part of his 1998 campaign for district attorney, and his record is expected to come under scrutiny as he faces a tough reelection challenge from veteran prosecutor Wallace Wade.

Rackauckas said his policies have made the system more judicious. He said his prosecutors are tough on repeat offenders who commit serious crimes but show a sense of proportion to offenders whose third strike is for a minor offense, like drug possession. He criticized Capizzi for often seeking maximum punishment regardless of the crime.

“It’s why I decided to run. They were dragging in people who shouldn’t get 25-to-life and committing an injustice,” Rackauckas said. “We’re looking at the case and deciding what the proper sentence is and saying that’s what we want and that’s what we’re going to demand.”

It’s now common for Orange County prosecutors to propose dropping the law’s 25-to-life sentence if defendants plead guilty and accept reduced prison terms. And while that’s one way to avoid imposing the stiff sentence on small-time criminals, some defense lawyers fear the emphasis on plea bargaining might cause some innocent defendants to take a deal.

“It’s like putting a gun to the client’s head,” said Santa Ana criminal defense attorney Richard Schwartzberg. “You could plead guilty to something you say you didn’t do and get three or four years. Or you could go to trial and if you’re convicted you’ll go away forever.”

The potential dangers of this, critics said, was highlighted during the Los Angeles Police Department Rampart Division scandal when several suspects who had been framed by officers pleaded guilty to crimes they didn’t commit out of fear of the three-strikes life sentence.

Wade, Rackauckas’ challenger, raises another criticism: that the plea bargain policy violates the spirit--and the letter--of the three-strikes law that voters overwhelmingly approved.

California’s three-strikes law has been highly controversial from the moment it took effect nearly eight years ago. The law requires the first two strikes to be certain serious or violent crimes, like rape, murder or robbery. But the third strike can be for any felony, including petty theft or possession of a single piece of rock cocaine.

The courts have lessened the impact of the law. In 1996, the California Supreme Court ruled that judges do not have to impose the 25-to-life sentence in certain circumstances. And a federal appeals court ruled this month that sending someone to prison for life for a petty theft is “cruel and unusual.”

Opponents of the three-strikes law have proposed a change that would require a third strike to be a serious or violent crime.

Meanwhile, the number of repeat offenders receiving life sentences is decreasing statewide--with the biggest decrease in Orange County, according to state Department of Corrections files.

An analysis of Orange County’s three-strikes cases found that the number of repeat offenders receiving life sentences has been steadily declining during Rackauckas’ term.

In 1998, the last year Capizzi was in office, 65 repeat felons were sentenced to life, according state records. The number dropped to 62 in 1999, 29 in 2000 and 20 during the first 10 months of 2001, the most recent records available.

Prosecutors signed off on 90% of the three-strikes sentences over the last three years. The remaining 10% of cases went to trial, with the judge ultimately deciding the defendants’ sentences.

“We have to handle it without regard to the statistical data,” Rackauckas said. “What we have to do is look at each case and not be concerned that, ‘Oh my gosh, we haven’t sent enough people away for 25-to-life.’”

Rackauckas said his prosecutors continue to pursue the 25 years to life sentence for offenders whose conduct shows they remain a danger to society.

For example, Jacob Pinney was sentenced to 36 years to life in prison last year after his conviction for a street robbery in Anaheim. Pinney had seven prior robbery convictions--all before the three-strikes law took effect.

In contrast, prosecutors dropped a potential life sentence in a plea bargain with Andrew Olivera, a 35-year-old man whose first two strikes were for residential burglary and whose third strike was for the attempted possession of a small amount of cocaine. Olivera pleaded guilty and was sentenced to 16 months in state prison, records show.

The district attorney’s predecessor, Capizzi, prohibited prosecutors from plea bargaining. For a case to be settled without a trial, the judge and the defense attorney would have to hammer out a deal on their own, with the prosecutor playing no role in the negotiations. Judges loudly complained about the policy, which they said backlogged the system and put too much of the burden of resolving cases on them.

Now, under Rackauckas, prosecutors can negotiate freely with defense lawyers. In the first three years he has been in office, about 90% of three-strikes cases were resolved without trials.

In Capizzi’s last three years in office, roughly 77% of three-strikes cases were resolved without trial, mainly through negotiation between judges and defense attorneys.

Orange County’s approach to three-strikes cases contrasts in some ways with the policy of Los Angeles County Dist. Atty. Steve Cooley. Cooley allows deputies to seek less than the maximum sentence against repeat offenders--even if the defendants refuse to plead guilty. Cooley’s written policy on the three-strikes law cautions, “The potential for coercive plea-bargaining must be avoided.”

Los Angeles prosecutors are instructed not to pursue life sentences if the third strike is for a nonviolent offense, except in unusual circumstances and then only with a supervisor’s authorization.

Some Orange County defense attorneys said that Orange County prosecutors rarely are willing to reduce charges against a repeat offender until he agrees to plead guilty.

“That’s the way it works,” said defense attorney Jim Brott. “It’s only stricken if you plead guilty. There’s none of this, ‘We’ll strike the strike and you can go on fighting.’ That does not go on in Orange County.”

Wade, a veteran Orange County prosecutor, said requiring three-strikes defendants to plead guilty in order to receive a lesser sentence is against the law and Rackauckas should stop the practice.

“If they don’t think a case is worth 25-to-life, they should dismiss a strike on their own without holding it over the defendant,” Wade said.