LOS ANGELES DAILY JOURNAL

THREE-STRIKES LAW COSTS TOO MUCH, RUINS TOO MANY LIVES
By Vince Imhoff and Claudia Rosenbaum

Leondro Andrade took nine videotapes from Kmart, intended as Christmas presents for his niece, and quietly slipped them into his waistband. His crime, however did not go unnoticed, and he was apprehended shortly afterward by security guards.

While the theft of the videotapes is defined as a misdemeanor petty theft, it is also labeled a “wobbler,” which gives the prosecutor the discretion to charge the offense as a felony. Unfortunately for Andrade, the prosecution used that discretion. He was fond guilty, and with two prior strikes on his record, unlucky Andrade was sentenced to 50 years to life.

As a practicing criminal defense attorney for seven years, I’ve had to explain to distraught clients this disproportionate sentencing scheme: how a minor misdemeanor charge could, in fact, transform into a felony and result in a permanent strike, and –if there are any prior felony convictions—bring an even more severe penalty.

While the decision as how to prosecute a wobbler is at the discretion of the prosecutor, the trial court, at the times of sentencing, has the authority to reduce a felony charge to a misdemeanor. Under the state’s three-strikes law, any felony can constitute a third strike and thus may subject a defendant to a term of 25 years to life in prison. After a second felony conviction, and offender’s sentence is double what a single felony conviction would demand. Three-strikes is applied after the third conviction, with an uncommonly severe penalty of 25 years to life.

While the cost to an individual defendant is great, this practice of “getting tough” on crime also places a great burden on the state.

One year of jail for each “criminal” costs the state $33,152. If you jail an individual for life, the costs reach upward of $1 million dollars per inmate.

As the state Legislature and Gov. Arnold Schwarzenegger work to hammer out a budget agreement that would enable the state to climb out of its current fiscal crisis, now is the correct time to look seriously at cutting wasteful government spending in corrections.

The state allots $5.3 billion a year to the Department of Corrections, or 6 percent of the state’s budget. But even this is not enough. The Corrections Department consistently runs a deficit and this year alone ran $330 million over budget. Eliminating unduly prohibitive sentencing not only would be a way to stop the questionable practice of saddling petty criminals with life sentences but also would help the state save money.

For the second time in two years, state Sen. Byron Sher, D-Standord, proposed eliminating the prosecution’s discretion to treat petty offenses as felonies and “strike” offenses.

This proposal would save the state $30 million a year. While a $30 million savings is perhaps but a small dent in working toward a balanced budget, it is a move in the right direction.

Besides the added expenditure this overzealous form of prosecution and incarceration is causing the inevitable overpopulation pressure on our overburdened Corrections Department. The state’s prison population has been increasing steadily over the past five years.

Currently, 162,307 people are incarcerated, compared to 120,000 in 1999.

A Recent study by the Sentencing Project, a prison advocacy group, found the increase was not caused by a growth in crime, which fell 35 percent from 1992 to 2002. It was, instead, a direct result of the more punitive laws adopted by Congress and state legislatures as a part of the movement to get tough on crime.

A November 2003 report on the three-strikes law found that, while 35 percent of second-and third-strikers were serving time for crimes against people, 65 percent were imprisoned for nonviolent property and drug crimes.

Overall, 57.5 percent of the state’s three-strikes cases involved a nonviolent offense as the third strike, according to a report from the Sentencing Project. The report also found that 20 percent of inmates in the state are serving life sentences.

Jailing petty offenders for life also means that the state institutions will be saddled with an ageing prison population. By 2026, 30,000 three-strikes prisoners will be serving sentences of 25 years to life, according to a projections by the Sentencing Project. And with the average third-striker 36.1 years old, state prisons are going to have to learn how to cope with issues involving the care of elderly inmates.

The state’s beleaguered prisons are not equipped to handle this type of volume. Most correctional institutions in the state are forced to triple-bunk inmates in small cells. In addition, the correctional guards are demanding an 11.3 percent pay raise, $200 million, for the additional work involved in monitoring and securing overcapacity institutions. With prison costs skyrocketing, locking up petty thieves for life only serves to exacerbate these institutional problems.

Sher’s proposal to eliminate state prison as a sentencing option for those people convicted of PC Section 666, petty theft with a prior, was originally tacked onto the budget after the budget’s revision in May, it did not make it out of committee. This was not Sher’s first attempt to pass such a proposal; he introduced it in the previous legislative session. Ultimately, the proposal died on the Senate floor.

It is time for the Legislature to revamp the three strikes law to ensure that injustices like Andrade’s don’t continue. At a time when the state’s finances are stretched thin and the Department of Corrections’ spending is out of control, this would be badly chosen policy. While those convicted may be petty thieves, can we really afford to fill up our overburdened prisons with petty offenders?

Sentences such as 25 years to life should be reserved for habitual violent criminals, not videotape thieves.

Claudia Rosenbaum is an associate with Imhoff & Associates, practicing criminal defense.

Vince Imhoff is the managing parter of Imhoff & Assoicates, practicing crimianl defense

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DISCLAIMER
The statement above is not legal advice! This statement is not intended to be a correct statement of law in your jurisdiction. This statement is intended to give you a very general understanding of what is involved in this type of crime. Please consult an attorney to find out what law applies in your jurisdiction.