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.

When Misdemeanors Turns Into Felony Offenses

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, Ive 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.

Harsh Penalty of Three-Strikes Law

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 states 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 offenders 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.

Three-Strikes Law Also Burdens the State

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 states 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.

Benefits of Not Treating Petty Offenses as Strike Offenses

For the second time in two years, state Sen. Byron Sher, D-Standord, proposed eliminating the prosecutions 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 states prison population has been increasing steadily over the past five years.

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

Evidence Shows Many Incarcerated for Petty Crimes

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 states 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.

Aging Inmate Population Would Require Elderly Care

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 states 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.

Time for New Approach to Three-Strikes Law

Shers 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 budgets revision in May, it did not make it out of committee. This was not Shers 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 Andrades dont continue. At a time when the states 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, P.C., Criminal Defense Attorneys, practicing criminal defense.  Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense.

By Bill Ainsworth Copley News Service

SACRAMENTO — In 2004, Los Angeles County District Attorney Steve Cooley was part of a powerful coalition that helped defeat Proposition 66, a measure that would have relaxed the state’s three-strikes sentencing law.

D.A. Cooley Leads Fight to Change California’s Three-Strikes Law

Now Cooley’s back in the middle of the fight. But this time, the Republican prosecutor has broken with his colleagues by leading an effort to liberalize California’s three-strikes law, the nation’s toughest.

Cooley has joined Brian Dunn, an attorney from the late Johnnie Cochran’s law firm, to promote a measure for the November ballot.

The Three-Strikes Law

The three-strikes law, approved in 1994 by voters and the Legislature, doubles the sentence for a defendant convicted of any second felony if the first strike was classified as a “violent” or “serious” crime. A person with two felonies for such crimes faces a sentence of 25 years to life for any third felony.

Since a third strike doesn’t have to be for a violent or serious crime, some criminals have received a sentence of 25 years to life for committing petty theft.

The latest proposal to change the law is more modest than Proposition 66, but is certain to trigger a similar, high-pitched political battle. It would require a third strike to be a violent or serious felony.

But that requirement would not apply to a defendant who had a previous conviction for murder, rape, child molestation or any felony punishable by life imprisonment.

Cooley’s new role has surprised leaders on both sides of the debate.

Going Against Tradition

He’s violating an unwritten rule of California politics, which dictates that elected officials — especially those in law enforcement — avoid any stance that an opponent could possibly label soft on crime. “I’m shocked he would team up with a member of a firm that is so pro-prisoners’ rights,” said Harriet Salarno, president of Crime Victims United of California, which played a key role in passing the law.

Dunn, a criminal defense attorney, said he was stunned when Cooley agreed to join his effort.

“I didn’t believe my ears. I said, ‘What’s the catch?’ ” Dunn said. “Then I realized this is an issue he cares about.”

So far, Cooley stands alone among prosecutors.

Directors of the California District Attorneys Association voted unanimously to oppose the measure at their meeting last month. “Three strikes is working the way it is,” said San Diego County District Attorney Bonnie Dumanis.

The association, Dumanis said, found in a study that third-strikers whose latest crime was neither violent nor serious frequently had an extensive criminal history that justified their long sentences.

“The DAs are using the law effectively and appropriately,” she said. Dave LaBahn, executive director of the California District Attorneys Association, said board members worried about a provision that could allow thousands of third-strikers to be released.

Some prosecutors, LaBahn said, were “very disappointed” that Cooley would lead an effort to change the law.

But Cooley believes voters will support the initiative.

“This proposal is going against the grain of the majority of the rest of the elected DAs, but it’s not going against the grain of the majority of the public,” he said.

Still, the question remains. Why would Cooley, a former reserve Los Angeles police officer and career prosecutor, lead an effort that would take power away from prosecutors?

“He’s an old-fashioned prosecutor who believes the job of the prosecutor isn’t just to get the longest possible sentence, but to do justice,” said Cooley’s Sacramento representative, James Provenza.

Cooley said he wants to change the law to preserve it.

“I think we’re saving the three-strikes law,” he said.

The law, Cooley contends, has barely survived challenges.

Surviving Challenges

In 2003, the U.S. Supreme Court upheld the law against a claim that it was “cruel and unusual” punishment to give a 25-years-to-life sentence to someone convicted of stealing golf clubs. But it was a 5-4 decision from a largely conservative court, Cooley said.

In 2004, polls showed that Proposition 66 had strong public support until a last-minute blitz by Gov. Arnold Schwarzenegger, then at the peak of his popularity, helped turn the tide. The measure lost, 47 percent to 53 percent. “We only defeated it because we had a popular governor who worked his tail off,” Cooley said.

Last year, Cooley said, an early proposal by Dunn would have also put three strikes at risk by making sweeping changes. Cooley said his proposal would ensure proportionality in sentencing and eliminate the high-profile cases cited by critics who want to eviscerate three strikes. Some third-strike prisoners are serving 25-years-to-life terms for property crimes, including stealing videos and a computer printer. In such cases, these criminals serve longer than a prisoner convicted of second-degree murder, which carries a 15-years-to-life sentence. Critics have long complained that prosecutors vary so widely in their application of three strikes that it creates an unfair system of justice. They also say the measure is costly: the Legislative Analyst’s Office estimates that it adds $500 million a year to the state budget. Before it was passed, prosecutors were among the leading critics of three strikes, supporting an alternative version. Yet after it passed, prosecutors have become its most vocal supporters.

Garcetti was Critic, Turned Defender of the Bill

Former Los Angeles County District Attorney Gil Garcetti illustrates the change. A critic during the bill’s trip through the Legislature, Garcetti became a zealous defender.

Cooley developed his views while serving as one of Garcetti’s head deputies. During Cooley’s tenure heading the San Fernando branch office in the early 1990s, he evaluated about 160 three-strikes cases. His conclusion: In most cases, the nature of the latest offense should determine whether a repeat offender gets charged with a third strike. “There has to be a strong sense of proportionality in sentencing,” he said.

In 2000, Cooley defeated Garcetti and promised to use the law more sparingly. His policies form the basis for the new measure. The initiative would do nothing to change sentences for second-strikers, but would allow some third-strikers to ask the court to change their sentence.

Statistics of Third-Strike Offenders

Currently, 7,813 third-strikers are serving 25-years-to-life sentences in state prisons, including 2,399 whose latest felony was a property crime, and 1,292 whose latest conviction was a drug crime, according to the California Department of Corrections and Rehabilitation.

Cooley estimates that about 2,400 third-strikers could ask to have their sentences reduced under his initiative.

Besides support from Cooley, the measure’s proponents need something else: about $1 million. To qualify for the November ballot, they will have to gather about 373,000 valid signatures in about six weeks.

Dunn said backers will have the money to pay for signature gatherers. Dunn said he admired Cooley for risking the wrath of his colleagues. “Steve has shown a lot of courage,” Dunn said.