Criminal Defense – Three Strikes and You Stay In?

With the baseball season now upon us, the song take me out to the ball game is particularly relevant when talking about criminal law and public safety. Unlike the song which states that three strikes and you’re out, the same does not hold true in criminal law sentencing. Proposition 36 when passed used a Draconian sentencing formula when dealing with “third strikers” in criminal law. The Proposition mandated a 25 years to life mandatory sentencing for those defendants who were up for a “third strike”. The courts were given no latitude in determining sentencing. Fortunately, the voters and the courts enacted Proposition 47 which modified proposition 36 to not use these sentencing methods when the alleged “third strike” was of a non-violent nature. The passage of proposition 47 reduced various felonies or wobblers (crimes that may or not be misdemeanors or felonies depending on the facts) and provides procedures for re-sentencing or re-designating prior offenses as misdemeanors.

The reduced offenses include shoplifting of less than $950, forgery of less than $950, insufficient funds check (INSF) of no more than $950, petty theft of not more than $950, simple drug possession.  Is this working? The recidivism rates for these new offenses are substantially less than the national average. Is this an aberration? Only time will really tell. The national average recidivism rate is 40%. Thus far, California has a 2% recidivism rate!  Does this bode well for criminal offenders and more importantly, the public in California?

The sentencing aspect of criminal law is evolving. A recent California Supreme Court case struck down residency limitations for sex offenders. The prior law did not allow sex offenders to live within certain distances from parks of school in San Diego County. The Court found that the application of this law impeded the rights of parolees. By not using the distance requirements, the court felt that there would be fewer re-offenders and public safety would be increased. The court felt that “high-risk offenders” would be evaluated on a case by case basis, but that a blanket prohibition application of a one size fits all approach would not be constitutional. However various counties and the state legislature and not wanting to apply this decision in their jurisdictions and are threatening to charge offenders with parole violations and the legislature is working to rework legislation to enact the spirit of “Jessica’s law”. Our society has evolved and is continuing to evolve in terms of what is acceptable or not. Society has changed its attitudes toward drunk driving, drug offenses, gay marriage, immigration reform to name a few. These changes have been spurred on by the groups connected with these issues (e.g. Mothers Against Drunk Driving (MADD).

Is it patently obvious that more changes are coming. In light of this, how should society express itself? Should it be more tolerant, or, more prisons, longer sentences, more executions, or something else? What say you?

Death Penalty: Justice, Vengeance, or Cruel and Unusual Punishment?

There are currently more than 700 people on death row in California. There have been no executions in this state since 2006. The Governor of the State of California has asked the state legislature for an additional $3.2 million dollars for more cells to house the death row inmates. Is this a wise use of state resources? Proponents of pro and anti death penalty camps can point to this request with questions. Should the overcrowding on death row be reduced by executing more people? Is the death penalty cruel and unusual punishment banned by the 8th Amendment to the United States Constitution? Would death provide closure to the victims families of the crimes that led to the conviction of the defendant? Should society have the power to exact vengeance on the perpetrators of crime? Are we “playing God” by making this decision? How many appeals should be adequate to allow a defendant to have their conviction overturned and if it is now, then how long should sentence of death be delayed? If a defendant is exonerated should compensation be provided to the defendant? If so, how much compensation would be reasonable? Should it be a lump sum, a yearly stipend for the time in jail, or something else? Can and should society even compensate a defendant at all?

The above questions and others on this issue cross philosophical, political and religious lines. There may not be a clear answer to any of it. Science has progressed through the use of DNA to free those who have been convicted (wrongfully) of crimes they did not commit. If we rush to initiate a death sentence, and it turns out it was erroneous, how can the loss of a life be compensated? Should the victim pay? Should the State pay? Should something else occur? The religious ties to this issue are in the Ten Commandments (though shalt not kill). Does society have the power to execute persons who have committed crimes so horrible that they lose the right to continue living?

Various states are beginning to experiment with new ways of carrying out capital punishment. Utah has now allowed limited access to firing squads for certain crimes. TXhas been very active in allowing executions. Lethal injections have come under fire recently because at times, they have not worked properly. Should we let science continue developing new and better ways to execute people? What is a humane execution? How long should it take? Do we want the perpetrator to suffer for time? If so, for how long? Do we want to have the victims families or loved one attend the executions? Are the executions racially motivated? Do we need to expand or contract the crimes for which capital punishment is available? These issues will be part of the upcoming political season. They need to be carefully and fully evaluated by the electorate and politicians. Once again, tying in a prior article, those with an opinion (either pro or con) tot he death penalty need to get out and express their opinion by appearing at the polling place and cast their votes to support whatever position they want to express on this and other issues. Times change and people change. Has society evolved to a point where the death penalty should be expanded or contracted? Time will tell.