Overcriminalization, Coercive Plea Bargaining, and California's Three Strikes Law

The Herald (Monterey County) has an interesting article about California's Three Strikes law and plea bargaining.  Portions of the fascinating article are below.

Across California, hundreds of criminals convicted of non-serious, non-violent, non-sexual crimes last month were no longer sent to prison under the state's massive inmate realignment — but this group of "low level" offenders does not include more than 2,200 inmates currently imprisoned for the exact same crimes.

They are serving life sentences under California's three-strikes law...

Men in Monterey County have been sentenced to 25 years to life for crimes ranging from petty theft to drug possession to second-degree burglary, the same offenses that now qualify others for county jail, probation and rehab programs.

A third strike doesn't have to be serious, violent or sexual. It can even be what criminal attorneys call a "wobbler" — a crime that's allowed to be prosecuted as either a misdemeanor or a felony...

But what third-strike conviction numbers don't reflect is how often the mere threat of applying the law — and therefore, a life sentence — is used to coerce plea agreements and prison time in low-level cases that otherwise could have ended with a few years' probation.

That, says Worthington, is the hidden impact of three strikes.

"I think people would also be surprised to know that you can get multiple strikes in one offense. They think it's for someone who has a long, illustrious career (in crime). But it could be one event with no prior record and it doesn't have to be their third or fourth time in front of a judge."...

One such case was Luther Collins, whose previous two strikes came decades ago, one in 1981. To avoid a third strike, Collins recently accepted a plea deal and six years in prison on a drug possession charge — the same charge that, under realignment, has had others in the county placed on probation.

Worthington said a client of his recently accepted a prison sentence under the threat of a third strike. He asked that the client not be named because a related case is still being adjudicated.

"I don't want to paint him as an angel," Worthington said. "But if he had a different background, he would have gotten felony probation and would have had the opportunity to have it reduced to a misdemeanor and have it dismissed. The two strikes in his background were such a powerful bargaining chip."

The man, in his mid-30s, had two previous strikes for domestic violence.

"He served his time and was released. He's been law abiding and paying his child support since the mid-2000s. He's worked things out with his wife enough to be in his son's life."

Then he blocked a bathroom doorway during a bar argument.

"He never threw a punch. The security footage showed he tried to break it up, and he even pulled his co-defendant away."

He was charged with assault with force likely to cause great bodily injury and threatened with a third strike — which meant life in prison. "You don't have to touch anyone for it to be an assault," Worthington said.

The client ended up taking a deal for four years in prison on a false imprisonment charge.

"He should not be in prison (again) for his past crimes," Worthington said. "That's one of the problems with three-strikes laws — people can never escape it."...

Monterey County public defender Jim Egar calls three strikes "an overwhelming coercive tool."

"It discourages innocent people from going to trial," he said. "The risk of conviction and punishment causes people to plead guilty. ... You have a situation that is ripe for unfair results. Mistakes happen because people are afraid of the risk."

"I don't discount that they may feel leverage," said Monterey County District Attorney Dean Flippo, who has been "heavily involved in the political wars" over three strikes through the years. Flippo said he and other district attorneys initially remained neutral when three strikes became law, but became supportive after they noted its popularity and saw that higher courts upheld it. "We were concerned about the third strike being non-serious and non-violent. But it picked up steam, and we embraced it."

"In the first few years (the initiative passed in 1994) there was tremendous response. They were packing away people and the prisons filled up," he said. "Then it leveled off and it has stayed level."

Flippo acknowledges that in the early years there were some abuses, "the kind that would shock the conscience." But within two years, judges were given the ability to dismiss a strike, in an act known as the Romero decision.

"The first reform was the Romero decision," Flippo said. "Three strikes gave us discretion to say 'You've had as many breaks as the community can give you.' If the judge disagrees with the prosecutor, he has the power to strike the strikes."

Unlike some district attorneys in California, Flippo has had a written three-strikes policy for years.

While it encourages prosecutors to file strikes whenever possible, the policy also allows them to dismiss strikes if there are "compelling" considerations, such as multiple strikes stemming from the same incident, if many years have passed since the strikes occurred, or if the defendant has had a crime-free record for 10 years. Attorneys also can decline to file a strike if the new offense is possessing a small amount of drugs.

Still, Flippo doesn't hesitate to credit the law with lowered crime rates around the state.

"Crime rates have been going down, down, down. I attribute it to harsher sentencing ... along with mobilization of communities" toward prevention and intervention efforts.

Generally, there has been no agreement among criminologists about why crime rates continue to decline, and Worthington cited research that concludes just the opposite.

"You will not find any link between the harshness of the sentence and declining crime rates," he said.

Click here to read the entire story.