Three Strikes Law Costs Too Much, Ruins Too Many Lives
LOS ANGELES DAILY JOURNAL
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.
<h2>Background on Weapons Rights</h2>
<p>The issue of weapons rights is one of the most controversial debates in the United States. The central point of contention behind the debate is the interpretation of the Second Amendment of the United States Constitution: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. The Amendment originally referred to the right of organized militia to possess firearms; while gun control advocates, today, endorse this original intention, gun rights groups, particularly those led by the National Rifle Association believe that such rights enshrined in the Amendment are inherently granted to all law-abiding citizens. As a result, weapons possession rights have become a matter of federal, state, and local legislation. To complicate matters further, there is little uniformity among states regarding weapons possession laws, particularly as it applies to the primary regulatory issues of weapon type, and the age and criminal record of those in possession of weapons.</p>
<h2>Federal Gun Control Legislation</h2>
<p>Among US historys most glamorized outlaws are the 1930s gangsters of Bonnie and Clyde, John Dillinger, etc., whose crimes led the federal government to expand <strong>gun control measures to the federal level</strong>. Since then, Congress began passing initiatives regulating the sale of fully automatic firearms like machine guns, mandating that gun sellers be licensed, and prohibiting persons convicted of violent felonies from purchasing guns. With the assassinations of President John F. Kennedy, Martin Luther King, and Bobby Kennedy in the 1960s Congress enacted the Gun Control Act of 1968 which regulated imported guns, expanded gun?dealer licensing requirements, and expanded the list of persons not eligible to purchase guns to include persons convicted of any non?business related felony, minors, or persons found to be mentally incompetent, and users of illegal drugs. In 1990, legislation was passed which banned the manufacturing and importation of semi?automatic assault weapons. In 1994, the Clinton Administration imposed the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103?322) also known as the 1994 <strong>Assault Weapons Ban</strong>, which prohibited 19 different types of military assault weapons; although this ban expired in September 2004, some states, including California and New York, have instituted similar provisions to maintain proscription of assault weapons.</p>
<h2>State Legislation on Possession of Weapons</h2>
<p>Each state defines specific regulations for the sale and possession of weapons, including those specific to concealed and assault weapons, the background and criminal history of the owner, as well as licensing and purchasing requirements. Generally, about seven states prohibit concealed weapons; in over half the states, all non-felons are able to obtain licenses to carry concealed weapons. Only one state, Vermont, has no licensing or permit requirement. Currently, twenty-one states either prohibit or substantially regulate this secondary market for minors; more than twenty states regulate all secondary sales through registration or licensing requirements. Because minors and criminals can easily obtain weapons through the secondary market in those states that do not have such regulationa phenomenon known as the “gun show” loophole many states, including California, New Jersey, Hawaii, Connecticut and Maryland have enacted bans on certain types of automatic weapons. Four statesSouth Carolina, Virginia, Maryland, and Californiahave laws that limit legal purchases of handguns to one a month per buyer. (David L. Raybin, Stick to Your Guns: Restoration of Tennessee Firearms Rights, Tennessee Bar Association Quarterly, March 2003).</p>
<p>California law, in particular, restricts the sale of all semiautomatic assault weapons that have specific military features such as pistol grips and folding stocks as well as a list of assault weapons and their copies such as the AK47 and Uzi. People who owned such assault weapons prior to the law are required to register the weapons and may not sell or give them to anyone else in the state. State law also restricts the sale of rapid-fire ammunition magazines in excess of 10 rounds. A minor may not possess a handgun, except with written permission or under the supervision of a parent or guardian. Furthermore, it is a misdemeanor to manufacture or cause to be manufactured, import into California for sale, keep for sale, offer or expose for sale, give, or lend any “unsafe handgun. (California Penal Code Section 12020).</p>
<h2>Prior Criminal Record and Weapons Rights</h2>
<h2>Federal Legislation</h2>
<p>Where a person is under indictment for a felony ? even before they are convicted ? it is unlawful to acquire firearms. (18 U.S.C. 922(n)). Once the person has been convicted then it may be unlawful to possess firearms depending on whether the crime is a felony or a misdemeanor. Generally, it is permissible to possess weapons following a misdemeanor conviction except during the term of the sentence when firearm prohibitions are universally in effect as a condition of probation. Another exception is where the misdemeanor conviction is for domestic assault. Here, federal law imposes a permanent ban on firearms (18 U.S.C. 922 (g)(9)). Federal law prohibits firearm possession following ANY state or federal felony conviction even if the sentence was suspended (18 U.S.C. 922(g)(1)).</p>
<h2>State Legislation</h2>
<p>California prohibits anyone convicted of a felony, or who is a drug addict, present or former mental patient, ever committed for mental observation, or acquitted by reason of insanity to own or possess any firearm. People with certain misdemeanor convictions involving force or violence may not possess or own any firearm within 10 years of the conviction. A person who has been adjudicated as a juvenile offender or delinquent for any offense, which would be classified as a felony or misdemeanor involving force or violence if committed by an adult, may not own or possess any firearm until age 30.</p>
<h2>Restoration of Civil Rights</h2>
<p>While federal legislation and legislation in many states prohibits anyone convicted of a felony from possessing a firearm, a restoration of civil rights, or an expungement or pardon of a convictionas a matter of State lawmay allow a felon to regain weapons possession rights (18 U.S.C. 921(a)(20)). Generally, a state restoration of rights may still impose restrictions on possessing certain types of weapons or may even retain federal mandates notwithstanding a state restoration or rights. In California, if a felon meets proper requirements, he or she may apply for the Certificate of Rehabilitation and Pardon or the Direct Application for Pardon, the latter made directly to the Governor. Under California Penal Code Section 12021, the person granted a full and unconditional pardon by the governor may lawfully own and possess any type of weapon that may be lawfully owned and possessed by other citizens in California.</p>
<h2>Defending Your Rights and Possession of Weapons</h2>
<p>Federal, state and local legislation governing various regulatory weapons issues consistently undergo significant changes. Particularly important is reconciling the differences that exist between federal and state legislation and understanding the rights as a non-felon US citizen as well as a person with a criminal conviction. Clearly, the right to own and possess weapons that is embedded in the Second Amendment is susceptible to narrow interpretation, thereby increasing the importance of other forms of relief in order to retain fundamental weapons possession rights. A person with a criminal conviction may very well restore these rights by obtaining a Certificate or a Direct Pardon by the governor of the jurisdiction. Additionally, if a person is found with an <a title=”unlawful possession of weapons” href=”http://www.criminalattorney.com/pages/crimes/illegal_possession.htm” target=”_self”>unlawful possession of weapons</a>, it is possible that the situation and method in which the evidence was procured is illegal; in order to protect oneself from the serious penalties that include lengthy prison or jail time and fines, an understanding of federal and state search and seizure laws becomes particularly imperative.</p>
<p>Due to the constantly evolving laws, maintaining weapons possession rights now requires a thorough understanding of both fundamental Constitutional protections and civil forms of relief. Thus, while the likes of Billy the Kid and Elliot Ness have fashioned the glorification and desensitization of weapons in nearly all aspects of popular culture, the reality of possessing weapons is the possibility of facing severe penalties for illegal usage and the necessity for understanding all legal protections to prevent unwarranted convictions.</p>
