Patterico's Pontifications

3/30/2004

Three Strikes Quiz: Question One

Filed under: Crime,No on 66 — Patterico @ 6:40 am

In the next few days I will post my critique of the upcoming initiative to water down the Three Strikes law. In the meantime, I’ll hopefully whet your appetite with some quiz questions designed to illustrate some of the most outrageous provisions of the law, as it would be amended if the initiative were to pass.

Question One:

For a period of several months in 1984 and 1985, Los Angeles was terrorized by Richard Ramirez, also known as the “Night Stalker.” The Night Stalker broke into residences in the middle of the night, through open windows or doors. He slaughtered any men inside. He raped, sodomized, beat, and cut up women and children. He would leave the women for dead, and would often kidnap the children.

Ramirez was tried for his crimes in one case. He was convicted of 13 counts of murder, as well as 30 additional counts of rape and residential burglary.

a) How many strikes does Ramirez have on his record?

b) How many strikes will Ramirez have on his record once the new law passes?

a) 43.

b) One.

You read that right. Under the amended law, Ramirez’s 43 felony convictions — 13 for murder — would amount to only one strike prior. Each strike prior must be “brought and tried separately.” Separate violent crimes in separate incidents — including the crimes of serial rapists and murderers — count as only one strike prior, if those crimes are tried in one case.

Coming tomorrow:

What would happen if Charlie Manson were paroled today?

38 Responses to “Three Strikes Quiz: Question One”

  1. I’m still waiting for the “four balls and you walk” law, which awards one free crime to anyone who has been acquitted of four or more violent or serious felonies. I mean, it’s only fair, right?

    Xrlq (6c76c4)

  2. That sounds like a guy who’s been awarded four free crimes already.

    After the road rage acquittal, O.J.’s count is 3-0 (2-0 if you count per trial).

    Patterico (c5f954)

  3. Well, if anything, that’s a flaw of prosecution strategy. A lot of prosecutors are trying linked, yet seperate, crimes individually so as to preserve the many sentencing/parole related rights of the state. A lot of this ties into the merger doctrine of criminal law.

    TPB, Esq. (59b991)

  4. I don’t think Ramirez or Manson are good examples for the following reason: both were tried before three strikes became a twinkle in the eye of the law.

    Therefore, prosecutorial strategies were different than what they would be under three strikes as it is or as it might become. Would prosecutors rely only upon three strikes in order to achieve maximum penalty in the future? Well, that requires a prediction on prosecutorial strategy, which I think is within bounds. So here’s my go: Manson and Ramirez were both public enemy number one in their respective eras, so the prosecutors in each case did seek the harshest penalties. I predict they would do so again. Three strikes isn’t necessary to accomplish a death sentence, nor would it be under the new law.

    Second, assuming a new crime spree like Ramirez’s, there’s one simple answer: separate trials. With 43 murders, you can space things out to have an excellent chance at multiple convictions to achieve however many strikes are needed.

    Third, you’re picking two notorious criminals which have a next-to-zero chance at being freed in the future. (And that is the most that the people can expect under our legal system.) So three strikes doesn’t apply to them unless you have at least some reason to believe they’re both going to be freed. In other words, at least pick criminals with a plausible chance at freedom – like a rapist, or a less notorious murderer. For example, should a man who has been convicted in oen trial of committing three rapes be considered to have one strike against him?

    Finally, a separate matter that you might be preparing to address in a separate post: requiring separate trials for separate strikes ensures that at least citizens won’t be casually caught up in the law. Requiring extra effort from the state to achieve a greater penalty just makes sense.

    bob (63bac3)

  5. How about one man convicted of four rapes and 13 related sex, burglary, and robbery offenses — and linked to about 200 sex offenses across L.A.? Say hello to the “Pillowcase Rapist.” He’s been free for years.

    You’re probably right that Manson won’t be let out. But that’s not really because of what he did; it’s because he’s such an unrepentant nut. We see crocodile tears shed by many when people like Leslie van Houten and Patricia Krenwinkel — who directly participated in brutal murders — are denied parole. Manson didn’t personally kill anyone at the Tate or La Bianca residences. Why, he wasn’t even there when the murders at the Tate residence happened.

    I’m making a point here: if even the worst of the worst get only one strike for a string of horrific murders, what does that say about people (like the Pillowcase Rapist) who will get out — or already have? This doesn’t concern you??

    Patterico (f7b3e5)

  6. TPB,

    Do you think trying multiple defendants in the Manson prosecution was an example of flawed prosecution strategy?

    Do you think that the state had the resources to try 13 separate murder cases against Richard Ramirez?

    I don’t think you’re being realistic.

    And any law that encourages prosecutors to waste scarce judicial resources this way is a bad idea.

    Patterico (f7b3e5)

  7. Well, I know the prosecutors did so in Oklahoma City, precisely for this reason (it’s also why there was a carefully planned arrangement of whose murders would be tried by the State and who would be tried by the US Attorney). That’s proof positive of the state’s willingness to spend its resources trying cases this way. Right now, in NJ, the same thing is going on with the Seton Hall dorm fire case.

    Do I think it’s the best of circumstances? Not really. However, I still think that the three strikes rule works only when individual crimes are not subject to the merger doctrine, which means that the prosecutors need to think about how they try their cases in a tactical fashion.

    Also, Bob made a point that Ramirez and Manson are bad examples because they predate the three strikes rule, which is true. The State couldn’t go back and apply the rule to them.

    Is that going to encourage judicial waste? I suppose it could be called that, but a lot of these rules (non-retroactive imposition of punishments, merger, and the like) stem from the Constitution, which means its waste we’ll tolerate.

    I agree, they shouldn’t water down three strikes, just so you know. I’m just trying to point out the procedural rules that apply even under the current incarnation of the rule. These “new” issues are, as far as I can tell from my experiences, probably stuff that is already at issue under the judiciary’s interpretation of three strikes.

    TPB, Esq. (59b991)

  8. How about one man convicted of four rapes and 13 related sex, burglary, and robbery offenses — and linked to about 200 sex offenses across L.A.? Say hello to the “Pillowcase Rapist.” He’s been free for years.

    As I understand it – and that may be a misunderstanding, for all I know – the new three strikes law would still achieve the same results as current law. (In your example)

    I think you’ve got a point, but here’s the clincher: I’m suspicious of the three strikes law, but not opposed to it on principle. If a good argument were made against its modification, it’d shift my opinion. This was just one of a series of posts you intend (I see another yet that I haven’t yet read), so perhaps it will be one of those that does the job.

    A few responses were directed at TPB, but addressed topics from my post, so I’ll address one, with apologies in advance in case I’m stepping on his (or her) toes.

    The question of state trial resources is a question of funding and has to be addressed separately. After all, lack of trial resources doesn’t justify the punishment, the crime or series of crimes does. If we begin to effect our laws to ensure harsher punishments in order to avoid greater use of trial resources, then I think we’re taking a dangerous turn.

    The law should be ideological, not pragmatic. Leave the pragmatism to the prosecutors.

    bob (63bac3)

  9. I appreciate your comments and I hope you folks stick with the discussion. I plan to have several more “quiz questions” and ultimately a single post that sets forth all of my objections. Please continue to comment. I’ll consider it my personal mission to convince both of you that the proposed initiative is a bad idea.

    I think some of my responses will be clearer as you continue to read the posts, but here is a quick reaction to some of your points:

    I think you guys don’t really appreciate that this is not simply a question of resources. In fact, where multiple crimes occurred in the same incident, the law typically *requires* that they be tried in the same case. A defendant who shot three people within a ten-second period couldn’t be tried three times; that would be seen as prosecutorial abuse and a probable violation of the Double Jeopardy Clause.

    In any event, the law strongly encourages even separate incidents to be tried together where the charges are related — especially where evidence is cross-admissible.

    Just to give one example from real life: defendant takes gun from victim (a security guard), shoots victim and two others, and flees. A week later he shoots more security guards at a different club — with the same gun. A prosecutor would have to be crazy not to consolidate these cases. Because the same stolen gun was used in both cases, the evidence of each incident is cross-admissible in the other case, shoring up the identity of the perpetrator. This is a real-life situation, and similar ones occur all the time.

    Under the current law, such a person would get several strikes. Under the law as amended, he will get only one — because there will be only one trial.

    The Pillowcase Rapist, convicted of multiple crimes in one proceeding and now a free man, will have one strike instead of seventeen. If he breaks into your house, he faces six years, not 25-to-life.

    The issue with Ramirez and Manson is: if they committed another crime *now*, would they be subject to the Three Strikes law? The fact that their strike priors occurred before the law was passed would not prevent them from being prosecuted as third-strikers if they committed a new felony today. But the way the law is about to be amended would. If the law is really targeted towards violent people, what sense does it make that these serial murderers would not be subject to the law if they broke into your house or threatened to kill you?

    The things I am highlighting are *not* already in play under the judiciary’s interpretation of three strikes.

    Keep reading and commenting!

    Patterico (1b4f1f)

  10. By the way, the law is (and must be) pragmatic, as long as a defendant’s rights are not violated. Appellate courts can, do, and should take into account whether a particular rule that is not necessary to secure a fundamental constitutional right would cause such a strain on the system that it would buckle under the pressure. Hence the strong presumption in favor of joinder and consolidation in appropriate cases.

    Patterico (1b4f1f)

  11. You are incorrect in your analysis regarding Ramirez. The only way each murder would not be counted is if all were committed during the same act, which they were not. Thus, the prosecutor could enforce the three strikes.

    Eric Obrien (786a9c)

  12. I am basing my statements on the language — used in more than one place in the proposed initiative — requiring charges to be “brought and tried separately” to count as separate strikes. I would like to think you are right, and I have misread this language — since the “brought and tried separately” language seems so clearly nonsensical and dangerous to me.

    However, I don’t think I have misread it.

    Can you point me to the specific language of the proposed initative that supports your contention? I’d appreciate it.

    Patterico (012781)

  13. Eric,

    I have re-read the language for about the twelfth time now, and I don’t see anything supporting your assertion.

    Have you read the text of the proposed initiative?

    Patterico (012781)

  14. Your argument is irrelevant regardless, a defendant convicted of first degree murder either gets the death penalty, or lwop (life without parole). Thus, it would be worthless to seek a third strike against a defendant who will be incarcerated for life or killed for his crime. In fact impossible, there is no judge in CA that would allow a prosecutor to proceed with such an action.

    The fact is, judges still have discretion under the current law, and most often times apply the initiatives proposed changes. If the initiative saves money, and limits the multiple appeals by the ACLU, then it sounds good to me.

    The spirit of the law will still be intact, for example a three time convicted rapist or pedophile will still get 25yrs plus. And on those rare occasions of multiple, separate act charges, you will have prosecutors filing separate actions, which will actually give rookie DA’s some good trial practice.

    eric obrien (786a9c)

  15. I take it that you concede that your earlier assertion was incorrect, though you don’t bother to say so forthrightly.

    So readers understand: crimes must be “brought and tried separately” to be strikes. The post shows why this is crazy.

    Do you not understand that I am making a rhetorical point by giving extreme examples? There are many less extreme examples where people can and do get out after committing multiple violent felonies. Whether they are now eligible for a life sentence should not depend on how many different trials they had for those multiple violent priors.

    Patterico (012781)

  16. Oh, and not everyone convicted of first degree murder gets life without the possibility of parole. One must be convicted of special circumstances as well. Murderers can and do go free. All the time.

    And don’t call it “rare” to try multiple violent acts in one case. Serial rapists and murderers are all too common. Once they are caught, their multiple violent felonies are typically tried in a single trial. Your cavalier comment about getting trial experience for rookie DAs, when we are talking about keeping repeat violent felons off the street, says to me that you don’t take public safety as seriously as the average citizen does.

    Patterico (012781)

  17. Also: if judges already do what the initiative calls for (and you claim they do), why do we need it?

    Patterico (f7b3e5)

  18. So what if Ramirez would only get one strike! You failed to mention what his minimum possible sentence would be for being “…convicted of 13 counts of murder, as well as 30 additional counts of rape and residential burglary.” Will he get out of prison either way? Isn’t the possible differene in what his sentence would be more important than how many strikes he has? Can’t you come up with a better example than Ramirez?

    Anna (daaaa1)

  19. Sure, I have plenty of examples, including some in this very comment thread, which I take it you haven’t read. Go ahead and read it now, and check out my “No on 66″ category.

    Patterico (802c76)

  20. A portion of the law as it currently is:
    (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.
    (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be
    consecutively sentenced in the manner prescribed by law.

    Same portionof the law as proposed:
    (6) If there is a current conviction for more than one serious and/or violent felony count not
    committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section, and
    (7) If there is a current conviction for more than one serious or violent felony as described in
    paragraph (6) of this subdivision, the court shall impose the sentence for each conviction
    consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.

    I did read your other examples and still you give no mention of the proposed law’s impact on sentences if they were truly charged and convicted of the crimes you mention? I have no desire to have people like you describe released, but the law is there, current and proposed, to put true violent and/or serious offenders like you describe away for a very long time. Perhaps in the cases you use as examples, if other charges were brought when they should or could have been, as in the case the man attempting to kill the same women on two separate occasions, and/or maximum sentences allowed were imposed when they should and could have been in the first place, some of these people would not be an issue here. Everyone eligible for resentencing under prop 66 would be subject to other sentencing guidelines, as in the case of Noble you described, as well as having any previously dismissed charges pursuant to a plea agreement be refiled and I have no doubt the D.A.’s will vigorously pursue every option available to them.

    Anna (daaaa1)

  21. I don’t have much time now, but the Pillowcase Rapist is a good example of someone who commits dozens/hundreds of crimes, gets only one strike, and is now out. If he does it again, his sentence is cut dramatically.

    The opportunity to refile charges is severely circumscribed by statute of limitations issues and other concerns. In most cases it will be impossible.

    Don’t kid yourself: about 30,000 people will be released under this initiative — people collectively responsible for thousands upon thousands of incredibly cruel and violent crimes: homicides, rapes, robberies, etc. They’ll only go back to prison when someone else has been victimized. The costs to society of the resultant crime wave will be astronomical.

    In this case, the devil is indeed in the details.

    Patterico (802c76)

  22. Let me ask you this: Do you think prison serves to rehibilitate offenders? If not, why not lock them all up forever. Would you say that in most cases they are worse off upon release then when they went in? In many of the cases that will be up for resentencing, people will get out one day, whether it be upon passing of prop 66 or when they are up for parole on their current sentence with 6, 8, 10 or 15 years to go. Leaving the law the way it is will only serve to postpone inevitable, only adding to it a much more hardened criminal being released.

    Anna (4de757)

  23. There are no easy answers. By the time someone becomes a candidate for state prison, he is often beyond rehabilitation — but not always. In any event, society must be protected. Strikers are among the worst of the worst. Letting out 30,000 at once is a very scary proposition.

    Patterico (802c76)

  24. That does seem quite scary to say the least. Please tell me where you get your figure of 30,000 eligible for immediate release? I have read other reports with numbers close to it, in which the conditional provision for resentencing under Section 11 of prop 66 which allows for only those 3rd strikers, whose current conviction is not serious and/or violent, to be resentenced. The reports claim that 2nd strikers whose current conviction is not serious and/or violent will also be eligible resentencing regardless of the conditional provision due to it being retroactive and also due to the “rule of lenity”. I tend to agree for the most part with how prop 66 redefines what is and is not considered serious and/or violent so releasing only those individuals does not cause me too great of concern. What is your opinion of Section 11 and why would it apply to others currently sentenced under the law? Would a 2nd or 3rd striker whose current conviction IS serious and/or violent but whose prior under prop 66 would no longer be considered serious and/or violent also be eligible for resentencing? Why or why not?

    Anna (4de757)

  25. That does seem quite scary to say the least.

    Tell me about it. The fact that you are willing to consider the impact of this gives me hope.

    If I can change just one vote on this proposition . . . then we’re still screwed, because we’re still way, way behind. But that’s okay; it’s still worth it to try to convince you.

    Please tell me where you get your figure of 30,000 eligible for immediate release?

    This news story says:

    On Wednesday night, [initiative supporter Joe] Klaas estimated that 30,000 people could be freed.

    Although this analysis by a Deputy D.A. in Contra Costa County puts the number at just over 26,000, it says that it is a conservative estimate. If you like, we can go with the more conservative 26,000+ number, but there is support for the 30,000 number.

    I have read other reports with numbers close to it, in which the conditional provision for resentencing under Section 11 of prop 66 which allows for only those 3rd strikers, whose current conviction is not serious and/or violent, to be resentenced. The reports claim that 2nd strikers whose current conviction is not serious and/or violent will also be eligible resentencing regardless of the conditional provision due to it being retroactive and also due to the “rule of lenity”. I tend to agree for the most part with how prop 66 redefines what is and is not considered serious and/or violent so releasing only those individuals does not cause me too great of concern. What is your opinion of Section 11 and why would it apply to others currently sentenced under the law?

    The rule is simple: if you wouldn’t receive the sentence now, you get resentenced.

    Would a 2nd or 3rd striker whose current conviction IS serious and/or violent but whose prior under prop 66 would no longer be considered serious and/or violent also be eligible for resentencing? Why or why not?

    Yes: if your prior is not considered serious or violent, the law says you should not have received a strike sentence and you will be resentenced.

    Patterico (f7b3e5)

  26. Thanks for your clarification. I was surprised to here yet another D.A. claim that Section 11 basically means nothing. After sleeping on it though, I am still not convinced that your argument disregarding the conditional provision of the text is based on unquestionable law or just a ploy to deter voters in voting yes on prop 66. I say this only because my ex-husband is and was a police officer throughout our 10 year marriage and my youngest brother, sworn in just last year, is also a police officer. It’s mostly through both of them that I have had the opportunities to observe first hand how things are handled in court. In many cases, it’s not about justice as much as it is what drives our own personal opinions and desire to “win”, whether it be police, defense attorney’s, D.A.’s, or judges. My brother however, remains an exception as he manages to continue to be fair, objective, and impartial to the peoples he deals with. He just does his job and it’s ultimately not in his hands anyway, however, I have personally witnessed blatant arguments made across the board by those whose hands it is left in, with disregard to material facts. Is your argument on the text of Section 11 one such argument? I find it interesting that the long list of endorsements in opposition of prop 66 consists mainly of D.A.’s offices, Sheriff’s Department, and Police Association. Well, duh? No across the board side taking there is there? If prop 66 were passed, would you and other D.A.’s then turn around and change your argument that Section 11 plainly states only 3rd strikers whose current conviction is not serious or violent are eligible for resentencing in order to avoid resentencing any others sentenced under law and therefore completely contradicting your current argument of the same law? If not, why? If yes, then your current argument would not be creditable so how could I take it seriously. I pose these questions to not to argue, but rather as a person in search of the truth in order to make a decision based on true and accurate information. By the way, my brother who is a police officer is in support of prop 66. I appreciate your input.

    Anna (4de757)

  27. Anna,

    I’ll have more to say about this. But I think your argument reveals a lack of objectivity. Show me an association of public defenders that opposes the initiative. Why is their across-the-board support not suspicious, but across-the-board opposition by law enforcement is? Couldn’t across-the-board opposition by law enforcement be an indication that the measure is dangerous?

    Patterico (f7b3e5)

  28. As I said… “I pose these questions to you not to argue, but rather as a person in search of the truth in order to make a decision based on true and accurate information.” Lacking objectivity?

    Do you recall that in 1994 Marc Klaas ended his support of prop 184 and was joined in opposition of prop 184 by The California District Attrorney’s Assoctiation? Klass switch in favor of an alternative “Three Strikes Law” that applied only to true violent offenders, much like the law under prop 66.

    Klaas was quoted as saying,

    “In the middle of this marvelous puzzle that’s being put together is a big, ugly splotch which is Three Strikes and which does more harm than good,and that’s a shame.

    and,

    “I tell people we have to find real solutions; I don’t think we can solve the crime problem by just putting more people in prison for longer amounts of time any more than we can solve the AIDS problem by constructing more cemeteries,” Klaas says. “These are back-end solutions; more efforts have to be put in to finding front-end solutions.”

    So if a danger does exist, my feeling is that it’s a result of the passing of an unfair law to begin with.

    Granted, Klaas now once again supports the current “Three Strikes” law and is in opposition to prop 66, but he made some very strong arguments in opposition of it shortly after the loss of his daughter, who spurred society’s overwhelming support of the law to begin with.

    Still, justice in many cases, as I said, is not what it is about, as much as it is what drives our own personal opinions. You and other D.A.s may use the current law to put someone behind bars for less serious felonies because YOU feel that based on their priors, they deserve to be put away for a long time, when had justice been served in the first place, they would have had harsher senteces on the priors to start with. Likewise, many may use prop 66 as a ticket out, who may or may not deserve it. I can only hope for a fairer handling of things from both sides in the future.

    How would you respond if it were you son who was sentenced under the current law, whether he committed a couple of burglarys 6 years apart, void of violence or even confrontation, and received a sentece of 13 years @ 80% time, or killed two people in an accident like Keenan’s son?

    I hope your next response will also answer the question I posed to you regarding what your position will be on the text of section 11 of prop 66, should it pass.

    Anna (4de757)

  29. Let me pose an example. Let’s say you just purchased a puppy and you bring it home with you. You begin playing with it on your brand new expensive piece of furniture. The dog pees on it. What do you do? Remove the dog from the furniture and mildly chastise the animal.
    The next day/week/month you leave the dog, who is now housebroken, and go to work only to return at the end of the day to find that the dog has taken a crap on that piece of furniture. What do you do? You punish the dog. Maybe you even swat/kick him.
    The very next day the dog does it again. What do you do? You smack the dog harder hoping to teach him not to do that any more.
    Again and again the dog keeps ruining your home and you progressively hit the dog harder and harder trying to teach him the lesson he needs to learn.
    Guess what? Eventually the dog learns not to crap on your pillow. And if he doesn’t you eventually give the dog away to get rid of it because he won’t learn to correct his behavior.
    Basically that’s what Three Strikes is all about. The public is tired of these dogs crapping on our pillows and it’s time to start hitting them harder and harder. For some of them we are left with no alternative than to “give them away.” If they don’t like prison then don’t commit any new crime.
    Correct the behavior or you’re gone.
    And, as applied now, the law is being applied fairly and is having the desired result … lowering the crime rate. ie. less crap on the pillow.
    Removing the bite out of the Three Strikes law will only have the effect of increasing the crime rate by letting out these convicts to commit more crimes with no real punishment. While the Third strike seems to get all the press, it’s the Second strikers (not necessarily just second time felons)that cause the most damage. Keeping them off of the streets for slightly longer terms does more to lower the overall crime stats.

    MOG (27e79b)

  30. Anna,

    To fully respond to your question will take a new post. It’s worth it, I think, but it will have to wait until I have time.

    My immediate and knee-jerk response was that you seemed to find some sinister significance in uniform opposition from DA’s, but none in uniform support from PD’s. If I have accurately stated your position, I don’t know how you justify it. If I haven’t, then why did you mention only the uniformity of the DA’s positions?

    Patterico (f7b3e5)

  31. It does seem you’ve misunderstood my point in stating that it’s mostly D.A.’s, Police, and Sheriffs who seem to be in opposition of prop 66. That’s expected, as it is likewise expected that public defenders and criminal defense attorneys would be in support of prop 66. I said in the previous post that, “I find it interesting that the long list of endorsements in opposition of prop 66 consists mainly of D.A.’s offices, Sheriff’s Department, and Police Association.” Although I realize it may not have been clear, my emphasis in that statement was on “mainly.” I made that statement more to point out the lack of support from organizations other than the ones you would expect. I guess I’m just more impressed with the list of endorsements in favor of prop 66 because it seems to also include many of those groups I wouldn’t necessarily expect. But that’s only one factor of many for me that need to be considered, so I would appreciate your further input on the previous posts you have yet to respond to.

    Anna (4de757)

  32. Actually, I have responded to each post, and have further said I will respond in more detail when I get more time. You left out your complete comment:

    I find it interesting that the long list of endorsements in opposition of prop 66 consists mainly of D.A.’s offices, Sheriff’s Department, and Police Association. Well, duh? No across the board side taking there is there?

    Moreover, this followed a diatribe (with which I disagree) about how most everyone in the criminal justice system just wants to win, and justice be damned.

    In context, it surely reads like an accusation that law enforcement is suspiciously one-sided in opposing this proposition.

    More on section 11 when I get time. I think it’s an interesting issue. Have some patience. There’s plenty of time between now and the election.

    Patterico (f7b3e5)

  33. Anna:

    I may have been too hasty in answering one of your questions. A quick review of section 11 indicates that, indeed, defendants will not be resentenced due to the initiative’s redefinition of one of their prior strikes as a non-strike. Again, this is based on a quick review of language I haven’t looked at closely in months, but I think this is clear enough that the rule of lenity would not apply. Thanks for bringing this to my attention so I can correct the record.

    I don’t think this affects any of the statistical analyses that have been done regarding the number of people who will be released if the proposition passes.

    Patterico (f7b3e5)

  34. Now I’m really confused! Since I didn’t recall a specific reference to inmates not being eligible for re-sentencing if their priors no longer counted as a strike, I decided to read Section 11 once again.

    As far as I can tell, the only reference I found which one may conclude that, “…defendants will not be resentenced due to the initiative’s redefinition of one of their prior strikes as a non-strike.” as you say, is where Section 11, subdivisions (a) and (b), in paragraph (2) of both, states the following:

    “The currently charged felony resulting in the imposition of an indeterminate term of life
    in prison was not described as a violent or serious felony pursuant to this act.”

    So I guess that one could reasonably conclude that the reference to, “…currently charged felony…was not described as a violent or serious felony…”, as a condition to those eligible for re-sentencing, would exclude those whose current conviction IS violent or serious, even if their priors would no longer be considered strikes.

    If that is indeed where you drew your conclusion from, what I don’t understand is, how you can disregard the reference to “…the imposition of an indeterminate term of life…”, a punishment that applies to 3rd strikers and NOT 2nd strikers. In my post on July 15, I specifically referred to Section 11 as applying to 3rd strikers in the question I posed to you. My conclusion was based on the information in Section 11 where both subdivisions (a) and (b) refers to persons, “…currently serving an indeterminate term of life in prison…”, again 3rd strikers, NOT 2nd strikers, and in paragraph (2) referenced above. You answered my post on July 15 seeming to disregard a clear reference allowing only 3rd strikers to be re-sentenced, yet in your last post, you acknowledge the only reference I could find referring to priors no longer counting as strikes not taken into consideration for those eligible for re-sentencing and hold it to be, “…clear enough that the rule of lenity would not apply.” Why does one reference seem clear to you but not the other?

    Perhaps I have it all wrong? Please let me know….

    Anna (4de757)

  35. Anna,

    Sorry this has taken me so long. I have finally taken a very close second look at Section 11. I think this is worth an entire post, but let me summarize my feelings on it here.

    Bottom line: I continue to believe, as I said in my last comment, that the initiative — read fairly — does not authorize the release of second strikers. If I am right about this, that does affect statistical analyses I have seen of who will be released, and I will update the post referring to that statistical analysis to make that clear.

    However, I believe there is a potential ambiguity in the language, which would allow defense attorneys to argue that the language does release second-strikers. Because of the rule of lenity, this potential ambiguity may well result in the release of second-strikers.

    So the rule of lenity may apply. I don’t think it should here — but it may. I am going to have to retract the statement in my last comment that the rule of lenity would clearly not apply. I can’t say that. I should have thoroughly re-reviewed the language before making that comment — which (I did make clear) was based on a quick review of the language, which I hadn’t read in months. That’ll teach me.

    I also believe that the ambiguity in the language has been deliberately inserted by defense attorneys who plan to argue for the release of second strikers, after maintaining before passage of the initiative that it will not do that.

    I hope that clears up my position to some extent. You will no doubt have some further questions about how I arrive at these conclusions. I will put my analysis in a new post, soon. It will be painfully detailed — too detailed for most — but I think the analysis needs to be there for those who are interested.

    I want to thank you for pointing me to this and holding my feet to the fire. This is yet another example of how commenters can bring us all closer to learning the truth. Let’s hear it for the marketplace of ideas!

    Patterico (f7b3e5)

  36. Three Strikes “Reform”
    Anyone considering voting for the initiative to water down three strikes should take Patterico’s quiz. Questions 1 and 2 are up now. More will follow….

    damnum absque injuria (2c5473)

  37. L.A. D.A. Cooley speaks out
    At the Los Angeles Chamber, District Attorney Steve Cooley spoke out on a number of issues this morning, including a proposed initiative to reform California’s “Three Strikes” law. The Republican highlighted three important initiatives his office is ta…

    BoiFromTroy (aef310)

  38. Miller’s Twelve Pack…
    It’s Friday, the weather is great, and the weekend is just around the corner. The only thing that could make it better is the Twelve Pack! OK, that might be a stretch, but as always, there are some great thoughts here.

    Miller's Time (f99341)


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