I can identify with steelworkers. I can identify with workers that have had a difficult time. -- Vice President Dan Quayle addressing workers at an Ohio steel plant,1988
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The case was open and shut: The defendant had been arrested red-handed with a small amount of cocaine, and he confessed to the crime. The jury acquitted him.
The jurors knew, because the defendant had two prior felony convictions, that if he were convicted he would be sentenced to 25 years to life in prison for this non-violent and relatively minor crime.
Judges and Jurors Reconsider "Three Strikes"
This verdict, which occurred in San Jose, California, recently, is no longer unusual. In the voting booth last year, Californians overwhelmingly passed the country's toughest "three strikes" sentencing law, which mandates extraordinarily long sentences for anyone convicted of any felony if they have one or two prior convictions for "serious" offenses. But when those same citizens are in a jury box and are faced with the responsibility of sending someone to prison for decades, they are having second thoughts.
The shift in attitude shows up in several phases of the criminal justice system. Some people refuse to serve on juries in cases where the defendant has one or two "strikes" (prior convictions). In the San Jose case, it took four days to get a jury together for a trial that lasted only one day.
A few juries have simply refused to convict. Jurors are told to disregard the sentencing consequences as they deliberate, but it's unrealistic to expect them to do so -- after all, they don't abandon their common sense (or their consciences) at the courthouse door. Prosecutors used to jump at the chance to let the jury know that the defendant had a record; now, ironically, it is the defense that may benefit when the jury learns of the defendant's record and realizes the consequences of a vote for conviction.
Many defendants who would have plea-bargained their cases before the three strikes law took effect are now demanding jury trials. As courts fill with criminal trials, civil lawsuits and minor criminal cases are significantly delayed. In Long Beach, Pomona and Lancaster, civil trials have all but ceased; in San Diego County, a court has been reserved exclusively for second- and third-strike cases. The L.A. District Attorney has warned that he may have to stop prosecuting misdemeanor cases altogether.
Courts and Legislators Stick to Their Guns
As ordinary citizens seem to be having second thoughts about the real-world effects of three-strike sentencing laws, appellate courts and legislators are still bent on making a harsh law even harsher.
For example, one appellate court ruled that a judge cannot ignore a strike when sentencing a defendant -- even if the judge believes the sentence would be unconscionable. (The California Supreme Court has just agreed to review this decision.) In another decision, the appellate court ruled that if a defendant with one strike is sentenced for two new felony convictions, the sentences for both of the new convictions are doubled. Another court has held that a prior serious felony conviction, which under pre-three-strikes law added five years to the defendant's sentence, now both doubles the sentence for the new offense and adds five years.
Meanwhile, California legislators have introduced measures to write these decisions into statewide law, and to provide that a juvenile record may not be sealed if the individual had been found to have committed a strike offense. One legislator has proposed that prosecutors be allowed to ignore prior strikes when charging a defendant with a new felony if it is "in the interests of justice." Under the bill, the same discretion would be denied to a trial judge who might feel that it is also "in the interests of justice" to ignore a prior strike.
Are Californians safer now that the three-strikes law is in place? The response to this question may depend largely on who answers it, but there are some disturbing indications that the law is not accomplishing what the voters set out to do. According to the state's legislative analyst, in the first eight months of the law's operation over 70% of the strike convictions were for non-violent offenses. Meanwhile, overcrowding in the jails has caused the early release of those convicted of misdemeanors: In Los Angeles County, the average time served for a one-year sentence has dropped from 200 days to 80 days.
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