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Tuesday, May 25, 2010

Shaming Three Strikes

If we are to ever escape the gravitational pull of mass incarceration, we are going to need not just more jeremiads against our current regime, but positive accounts of pathways out. Emily Bazelon in the Sunday New York Times Magazine provides just such an optimistic account of an emerging challenge to the hegemony of California's toxic "Three-Strikes" law which is rapidly filling its prisons with expensive to manage (because largely hopeless) and permanent prisoners. Her account is especially interesting because it links up two elements generally missing in the discussion of whose responsible for mass incarceration which tends to focus on governors, legislatures, correctional officer unions. Bazelon focuses on the interesting alignment of a Republican District Attorney of Los Angeles (now running for Attorney General), and a law school clinic at Stanford aimed at challenging 3-Strike sentences through collateral appeals.
The 1994 law, enacted by a panicking legislature and then sealed in the Constitution by voters at the high-tide of governing through crime in California and the United States. The law's success was widely attributed to public revulsion over the murder of 12 year old Polly Klaas. But the kidnapping and murder of young girls was a rare event in any community then and now. As Frank Zimring and his coauthors suggested in their 2003 book on Three Strikes, Punishment and Democracy, the law was a really a vote of no-confidence in government itself. Coming, as it did, more than a decade into California's prison boom, 3-Strikes marked the fatal contradiction of governing through crime; that it makes people trust government even less over time.

Unlike most Three-Strikes laws that discharged the pent up populist punitiveness of that politically frustrated year (Clinton's promised national health program crashed and burned) in largely symbolic measures, California's law was designed to maximize the incarceration fall out by applying to non-violent, non-serious crimes (for the 3rd strike) and producing a doubling of the sentence for a second serious or violent crime. According to Bazelon's reporting:

About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early.

Efforts to reform the law, including a 2004 voter initiative, have been defeated by a coalition of law enforcement organizations and virtually the entire political class of the state.

Bazelon's focus on Los Angeles DA Steve Cooley highlights the enormous power that laws like 3-Strikes have given prosecutors in California and all over the country. In California, where parole release applies to only a handful of life sentence crimes (including 3-Strikers after 25 years), prosecutors have unique authority to decide how many people will go to California prisons and for how long. Any felony can warrant a state prison term, and thanks to the ratcheting up of sentence ranges over the years, relatively few even permit probation as an option. Three-Strikes operates as a kind of individual "nuclear option" that prosecutors can use at will against a very wide range of repeat offenders.

As Bazelon reports, Cooley has set himself apart from other DAs in the state by explicitly stating that three strikes should only be used against a select group of eligible defendants:

Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy. The L.A. district attorney’s office no longer seeks life sentences for offenders like Norman Williams or Gregory Taylor. The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent

Cooley, who would retain much of 3-Strikes prosecutorial power even under his reform proposal, is anathema to fellow DAs who have virtually unanimously rejected his modest reform proposal. Cooley's example suggests that much of the state's problem could be solved by a tacit alliance between the DAs of largest population counties even without a statewide fix but they would have to brave the antagonism of the organized DAs of the state. But it also underscores the difficulty of escaping mass incarceration when elected politicians with a built in incentive to campaign on tough sentences are effectively in charge of how much money we spend on prisons. Bazelon see's Cooley's possible election as Attorney General (he is the leading Republican contender at the moment) as a pathway to a statutory reform of Three-Strikes long the Cooley lines. But if his reform ideas would hardly address the powerful incentives to off-load local offenders into state incapacitative custody (and financial responsibility) that will remain with county level DAs. Indeed, as AG Cooley may well want to mend fences with his fellow DAs (if he ever hopes to be Governor), suggesting that his 3-Strikes proposals are likely to be his closing not his opening

This is why the other side of Bazelon's imagined coalition is so important. It may seem unlikely that a boutique clinic like Stanford Law School's Criminal Defense Clinic, could make much of a difference in this situation. As the founding director, Michael Romano, freely admits, they cherry pick cases to find the most sympathetic possible 3-Strikers, leaving scores of other inmates with little hope of relief. I had a chance to visit with Romano, Clinical Fellow Galit Lipa, and the spirited band of students who staff the nation's only clinic devoted exclusively to three strikes prisoners the Thursday before Bazelon's story appeared to talk about the broad picture of overturning mass incarceration in California.

Nobody believes this can be accomplished one case at a time. But the victories that the clinic has been winning, discussed in Bazelon's story, point to a possibility unlikely to surface this year (or any time soon) in the electoral political field, that is a sense of shame. The clinic's legal arguments are also factual ones. They present judges with the spectacle of individuals cast into a hopeless fate of likely permanent imprisonment based on the premise not that they deserve it for their crimes, but expressly on the grounds that our security requires their total loss of freedom, security, or hope. That is a trade off that has become far more politically visible since 1994 largely because of the war on terror. It is not that judges, let alone the broad public, is unwilling to make that kind of sacrifice (indeed the war on terror may have made us more prepared to do so). But judges and the public appreciate that to make this trade off without some basic guarantees of the quality of the risk assessment on which this individual is going to be cast into hell (not for his sins, but for his future dangerousness) is to deny the basic humanity and dignity of the individual. In the criminal justice system, that guarantee has to come from the adversary process; that reflexive exercise of prosecutorial discretion in the name of public interest and justice, and the vigorous contestation of the prosecutorial case for dangerousness by defense lawyers with resources and skills to assess criminal risk.

In this context three strikes is a disgrace. There is no pretense of an adequately investigated and tested assessment of risk. The entire system should be struck down as "degrading treatment" under Article 5 of the Universal Declaration of Human Rights (to which we are a signatory). The absence of an effective judicial remedy does not doom this human rights based challenge. As we have shown with climate change and with issues like obesity, Americans are capable of being embarrassed by their own excess consumption and supporting change. Three Strikes is to the consumption of security what McDonald's Happy Meals are to obesity and what the Ford Expedition is to climate change. Hopefully the work of the clinic, and possibly Steve Cooley's campaign (if he is forced to defend against attacks on his reform proposals) will begin to make more visible to Californian's just how shameful their consumption choices in criminal justice really are.

Cross posted at Governing through Crime

Posted by Jonathan Simon on May 25, 2010 at 01:20 PM in Criminal Law, Jonathan Simon | Permalink


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Legislators who write ad hoc laws seem to overlook the potentially terrible power of the law as written. A law written in response to a young girl's death sounds just (and wins votes), but did anyone consider the ramifications? The answer, I think, is no. We cannot simply rely on prosecutors to wield their power in a way that comports with the tunnel vision of the lawmakers who wrote and proposed such a law, i.e., only use the three strikes tool to punish those violent and serious offenders. Such problems are particularly rampant in criminal law because voters are so gung-ho about DAs, politicians, et al being "tough on crime" that any law purporting to lock 'em up and throw away the key garners support. To wit, Georgia's stat rape and aggravated child molestation laws which produced the widely publicized Genarlow Wilson case. We should demand lawmakers who think before they write, consider the consequences before they vote. But we don't.

Posted by: Marcus | May 25, 2010 3:00:39 PM

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