As we discussed on Thursday in the first installment of this series on the UC Davis School of Law Program on “Crime and Punishment Revisited,” the application of AB 109, commonly known as realignment, figures to change the nature of the criminal justice system, but no one knows for sure just how.
The discussion began with David Ball, an Assistant Professor at the Santa Clara University School of Law.
Professor Ball is the author of a paper entitled, “Tough on Crime (on the State’s Dime),” which discusses how violent crime does not drive California Counties’ incarceration rates – a point that we demonstrated last month showing that, while Yolo County was near the bottom in crime rate, it was near the top in incarceration rate.
Professor Ball argues that, while California’s prisons “are dangerously and unconstitutionally overcrowded,” the state prison overcrowding is due in large part to “county decisions about how to deal with crime.”
His research suggests that “incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime.” Instead, “Counties can and do make different choices about how to respond to violent crime, including the extent to which they use prison.” This has, in fact, been one of the chief arguments that we have raised on Yolo Judicial Watch for the past nearly two years.
Professor Ball’s research demonstrates why localities are crucial contributors to the state prison population, because local decisions about “prosecution, investigation, plea bargaining and sentencing” are made by local officials, whether they are DA’s, judges, sheriffs or local law enforcement such as police and probation officers.
His research finds that, as there are 58 counties in the state, there are 58 different systems, and who the District Attorney is becomes a substantial determination of the outcomes people get in the system.
Professor Ball argued that we need to start looking at three strikes and determine its costs and benefits. It is not only a waste of life, but it is tremendously expensive to house people in prison.
“The question that we really want to ask ourselves is, given the tremendous amount of resources we put into imprisoning someone – not just for the third strike, but don’t forget we double other sentences before you get to the third strike – is this really how we want to spend our money?” he asked.
Los Angeles County District Attorney Steve Cooley is an interesting figure, who both has defended three strikes but at the same time put programs in place to modify it.
One of his big pushes is for proportionality during the exercise of prosecutorial discretion. However, the biggest threat he sees to three strikes law is indiscretion that punishes relatively minor predicate third offenses as serious felonies.
“Three strikes law is one of the most powerful, effective tools ever given prosecutors in helping to deal with the criminals among us,” he said. “We almost lost it to… the public’s visceral reaction to what they see to be the abuses of three strikes cases.”
Mr. Cooley argued that the nature of new offenses is or should be the most important factor in prosecutorial discretion in implementing three strikes. He argued that Los Angeles County has been careful in qualifying the 3rd strike – if it is not violent, it has been managed as part of the second strike.
While some argued that the system is broken, Mr. Cooley wholeheartedly disagreed, arguing that we have the lowest crime rate in 60 years. The reason, he argued, that we have such a low crime rate is that we have incarcerated so many bad people.
He argued that the state’s fiscal crisis is the tail wagging the dog here. He pointed out that effective early release and alternative custody under Prop 36 (drug offense program) did not work.
He said we should define the success or failure of AB 109 by what happens with the crime rate.
He argued that determinate sentencing works well if we consider the appropriate factors and that, while he hopes that realignment will succeed, he believes it will be a disaster.
As a final comment, he noted that it was mandated under three strikes that they charge the priors, but he finds that the law overall has been unequally applied. He suggested that there are two potential problems. First, the sentence could be found cruel and unusual in a case where the punishment is disproportionate to the crime.
But secondly, there is a problem because it is so unequally applied, where some counties seek it no matter what and others do not seek it at all, even when offenses are rather serious. He argued that prosecutorial discretion is fine, but not at this level. He wants to see a narrower scope for the predicate felony, and to bring the prosecutors more to the center.
Retired Sacramento County Sheriff John McGinness argued that since he is retired, he can now say whatever he wants.
“In my new life I don’t have to live with anybody’s consequences,” he said, freeing him up to criticize others.
His work at times focused around people whose family members and whose lives were lost in violent crimes.
“They were very frustrated because in many case those lives were taken by somebody who had already graphically demonstrated the propensity to bring harm to others through violent criminal conduct,” he said.
He noted how many cases there have been where the person who committed the crime had already been through the system and released on parole, only to reoffend again.
“Their propensity to bring great harm to others was known, and yet they cycled through the system and came out and reoffended,” he said. “That produced an emotional environment in which the public was very very prone to support three strikes.”
Whether three strikes is the best law for the state, he sees as “irrelevant.” “Frankly I have concerns,” but he said that it has withstood legal challenges and electoral challenges, “so it is the law.”
The real question is whether through realignment we will produce a climate where something like three strikes legislation is likely to recur.
He cited a proposed Sacramento Jail expansion and the opposition to it in the Sacramento Bee Editorial, which argued that instead of expanding capacity, we need to change the way we manage presentencing custodial issues.
Steve White, the Presiding Judge of Sacramento County, argued that it is not a question of eliminating discretion, but what has been the issue is that discretion has been moved to the executive branch from the judiciary.
He supports three strikes, with the caveat that the third strike must be a serious and violent felony. He believes that polling demonstrates that the public feels the same way.
Judge White has watched with interest Steve Cooley’s efforts to modify the three strike law.
Polling data advances the proposition that voters think prisons are overcrowded and that there are too many low-level offenders in prison. Three strikes is one factor in that, but the public has this perception.
The problem is that when the public looks at modification of the existing law, all the opponents of change have to present is an example of one individual who would not be in prison under the modification, and all they have to do is identify those who will be released to convince people to oppose changes.
Like others, Judge White argued that the realignment urgency is money-driven rather than policy-driven, in that “it would not be happening were it not for the budget.”
One of the points that he did make is that, if you believe in prosecutorial discretion, then you have to be willing to pay for it.
“If you’re going to be a county that sends many people to prison for life, then pay for it and don’t have those counties that are being much more cautious and careful and thoughtful about how they decide who should get three strikes and who should be sent for life – [don’t] have those pay for it,” he said.
If people are paying for their own prosecution and sentencing policies, then there might be a more thoughtful and reasoned approach.
Judge White argued that to the extent to which people are sent away for life for stealing a pizza (or in this county, a package of cheese) and the extent to which the public is aware of it, “there is an undermining of the justice system and there’s an undermining of the confidence that the public has in the justice system. And when you have that, you have a problem.”
“The reason that the public goes to initiative to begin with is that they don’t have confidence,” he said.
—David M. Greenwald reporting
[quote]While some argued that the system is broken, Mr. Cooley whole heartedly disagreed arguing that we have the lowest crime rate in 60 years. The reason he argues that we have such a low crime rate is that we have incarcerated so many bad people.[/quote]
It’s difficult to argue with this logic. However, even Mr. Cooley recognizes that the 3 Strikes Law needs a bit of tweaking…
I have no problem arguing with this logic, even if it sounds intuitive. The problem is that his logic looks at a single stat in a single state. When you compare across all states crime is at record lows. Crime is at the same low in states without the death penalty, without three strikes, without determinate sentencing. From a statistical standpoint, that suggests something else might be the cause of the low crime rate – something other than sentencing policies and incarceration rate.
[quote]From a statistical standpoint, that suggests something else might be the cause of the low crime rate – something other than sentencing policies and incarceration rate.[/quote]
And what do you think that cause might be? Just curious…
I think the biggest cause is probably a demographic shift – older people are far less likely to offend than younger people, and so as the population ages, crime rate is likely to go down.
I think more attention should be paid to the erudite comments of Judge Steve White. He is a very smart man and he is spot on when he says one of the problems with the three strikes law is the discretion is in the executive branch rather than the judiciary. This is arguably unconstitutional and has been a problem with the Federal Courts under the Federal Sentencing Guidelines for a number of years until the Federal Appellate Courts under Booker-Fan Fan and Apprendi all the way up to the U.S. Supreme Court found the Federal System of discretion in the executive (charging determining the sentence) unconstitutional. Judge White is correct in seeing and stating this as a problem with 3 strikes. The judiciary is to determine punishment and the local DA’s do so with what they charge — binding the judiciary’s hands. Someone has to challenge this on a Separation of Powers challenge…..
[quote]I think the biggest cause is probably a demographic shift – older people are far less likely to offend than younger people, and so as the population ages, crime rate is likely to go down.[/quote]
Certainly plausible theory…
ERM
Article in The Christian Science Monitor 5/24/10 summarizing interviews with various crime specialists gives six contributory factors:
1) Incarceration-based on theory of fewer criminals on the streets
2) Policing/surveillance – less opportunity to commit unwitnessed or unrecorded crime
3) Social programs-theory being more youth outreach and engagement leads to less crime
4) Demographics as David said
5) Unemployment benefits and extension/expansion of other benefits programs leading to less “financial desperation” crime.
6) Less opportunity- In generally depressed economy more people staying at home and thereby inadvertently guarding their property with their presence combined with less fancy gadget purchasing thus detracting from the “burglary value” of their homes.
This clearly looks like a multifactorial issue not really very amenable to sound bite interpretation.
Thanks medwoman for the thoughtful post. I tend to agree w your assessment that perhaps it is a multi-faceted reason that crime rates have gone down. A “tough on crime” stance could also be added to the list… but then you come up with the Dugard scenario… it would seem to me the exact reasons would be difficult to pin down… nevertheless it is good news…
California’s prisons are designed to house a population just under
80,000,but at the time of the court decision under review the population was almost double that. The resulting conditions are the subject of two federal class actions. In Coleman v. Brown, filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to oversee remedial efforts reported 12 years later that the state of mental health care in California’s prisons was deteriorating due to increased overcrowding. In Plata v. Brown, filed in 2001, the State conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by overcrowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in
the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge
court. After hearing testimony and making extensive findings of fact,
the court ordered California to reduce its prison population to 137.5%
of design capacity within two years.
Only those prisoners who are 1)non-violent offenders, 2)non-serious offenders, and 3)non-sex offenders can serve their time in county jails. In addition, if the prisoner has a prior or current serious or violent felony or is required to register as a sex offender they must serve their time in state prison. If they are convicted of any of 60 additional exclusionary crimes they will be required to serve their time in state prison. (Interestingly, possession of horse meat is one of those 60 exclusionary crimes.)