Patterico's Pontifications

5/31/2004

Proposed Three Strikes Initiative Bankrolled by Rich Guy Trying to Get His Son Out of Prison

Filed under: Crime,Dog Trainer,No on 66 — Patterico @ 10:28 am

It turns out that the dangerous upcoming initiative to gut the Three Strikes law was bankrolled by a rich guy who wants to shorten his son’s prison sentence for killing two people.

An article appearing in today’s Los Angeles Times reports that an insurance agent named Jerry Keenan spent $1.56 million to gather signatures for the ballot initiative. Keenan’s son is serving an eight year prison sentence for gross vehicular manslaughter. The son, drunk on beer and high on marijuana, drove a car with four passengers to a “winding, back road where he could drive at high speeds” reaching 95 mph. He lost control of the car, which “flipped four times.” Two passengers died. As so often happens in such cases, the driver did not.

Keenan’s son entered a guilty plea to two counts of vehicular manslaughter, and also admitted that he had caused great bodily injury to a third passenger. Owing to the vagaries of California sentencing law, this crime was a strike only because of the “great bodily injury” allegation.

But, as I have pointed out before, a very dangerous provision in the upcoming initiative says that you can personally cause great bodily injury to someone in the course of committing a felony, and it will no longer be a strike if you didn’t specifically intend to cause the injury. I gave an example in which a defendant

drives the wrong way on the freeway for five miles, at speeds of over 100 miles per hour. Several cars spin out of control, and multiple motorists receive injuries ranging from bruises and scratches to more serious injuries such as concussions and broken bones. One motorist goes into a coma.

I noted that this would not constitute a strike under the proposed new law.

I thought that provisions like this had been written by the defense bar generally, to benefit a class of criminals. I was naive. Little did I know that this provision had been inserted in the initiative by Keenan’s lawyer, for the specific purpose of getting Keenan’s son out of prison.

Under the proposed initiative, the killing of two people by Keenan’s son will no longer be considered a strike. Instead of having to serve 85% of his sentence, he will have to serve only half. He could get out by the end of this year.

Hey, if you could reach in your back pocket and pull out a mil and a half to get your kid sprung from prison, wouldn’t you do it?

Many people arguing against the Three Strikes law have argued that the law never should have been changed due to one specific case (that of Richard Allen Davis, the murderer of Polly Klaas). I wonder how those people feel about this.

Final point: Kudos to the L.A. Times for running this story. If the paper’s past coverage of Three Strikes is any indication, the paper will offer plenty of sophistry and misleading coverage of the initiative in upcoming weeks. However, this was a solid and important story.

Will future stories on the proposed initiative remind us who bankrolled it and why? Or will this story disappear into the ether, never to be mentioned again?

Time will tell.

[UPDATE: The original version of this post mistakenly stated that Keenan was the owner of an insurance company. My problem was relying on the Times. Keenan is an insurance agent who apparently owns several brokerages. Thanks to Xrlq for the correction.]

40 Responses to “Proposed Three Strikes Initiative Bankrolled by Rich Guy Trying to Get His Son Out of Prison”

  1. The three strikes law is a blunt instrument. I put it into law, but I shouldn’t have done it. I apologize.

    Bill Clinton (543fcf)

  2. The three strikes law is a blunt instrument. I put it into law, but I shouldn’t have done it. I apologize.

    Bill Clinton (543fcf)

  3. IIRC, there was another high-profile case around that time, too. Of course, if our state weren’t so friggin’ gunophobic, we might have passed the three strikes law in response to Patrick Purdy’s 1989 rampage, and both of the victims who inspired the 1994 law would be alive today.

    The scariest part is that even today, if you were to poll Californians about Patrick Purdy, you’d find very few respondents who knew who he was, but many who knew what type of weapon he used to shoot up that schoolyard in Stockton.

    Xrlq (6d213c)

  4. Your stance strikes me as correct, but I have never been able to understand how the 3 strikes sentencing requirement is constitutional in all cases. Perhaps you would care to comment on my feeling that it is an ex post facto law because it changes the nature of the first and second offenses if they were committed before the 3 strikes sentencing policy went into effect. I can see it if the first strike starts with any offense committed AFTER the new law took effect, but otherwise, no. There were some two-timers who learned to their horror that their third (rather minor) crime suddenly took on a totally different meaning. What’s the dodge, “ignorance of the law is no excuse”? Seems to me that it has become “ignorance of a law that did not yet exist.” The criminal should know from the first where he stands, first strike or second. That knowledge might well have deterred the second and third offenses, no? I know I’m wrong, but has anybody tried the ex post facto defense, where the first two strikes predated the sentencing law?

    L. Barnes (1b54e8)

  5. Your stance strikes me as correct, but I have never been able to understand how the 3 strikes sentencing requirement is constitutional in all cases. Perhaps you would care to comment on my feeling that it is an ex post facto law because it changes the nature of the first and second offenses if they were committed before the 3 strikes sentencing policy went into effect. I can see it if the first strike starts with any offense committed AFTER the new law took effect, but otherwise, no. There were some two-timers who learned to their horror that their third (rather minor) crime suddenly took on a totally different meaning. What’s the dodge, “ignorance of the law is no excuse”? Seems to me that it has become “ignorance of a law that did not yet exist.” The criminal should know from the first where he stands, first strike or second. That knowledge might well have deterred the second and third offenses, no? I know I’m wrong, but has anybody tried the ex post facto defense, where the first two strikes predated the sentencing law?

    L. Barnes (1b54e8)

  6. Your stance strikes me as correct, but I have never been able to understand how the 3 strikes sentencing requirement is constitutional in all cases. Perhaps you would care to comment on my feeling that it is an ex post facto law because it changes the nature of the first and second offenses if they were committed before the 3 strikes sentencing policy went into effect. I can see it if the first strike starts with any offense committed AFTER the new law took effect, but otherwise, no. There were some two-timers who learned to their horror that their third (rather minor) crime suddenly took on a totally different meaning. What’s the dodge, “ignorance of the law is no excuse”? Seems to me that it has become “ignorance of a law that did not yet exist.” The criminal should know from the first where he stands, first strike or second. That knowledge might well have deterred the second and third offenses, no? I know I’m wrong, but has anybody tried the ex post facto defense, where the first two strikes predated the sentencing law?

    L. Barnes (1b54e8)

  7. Your stance strikes me as correct, but I have never been able to understand how the 3 strikes sentencing requirement is constitutional in all cases. Perhaps you would care to comment on my feeling that it is an ex post facto law because it changes the nature of the first and second offenses if they were committed before the 3 strikes sentencing policy went into effect. I can see it if the first strike starts with any offense committed AFTER the new law took effect, but otherwise, no. There were some two-timers who learned to their horror that their third (rather minor) crime suddenly took on a totally different meaning. What’s the dodge, “ignorance of the law is no excuse”? Seems to me that it has become “ignorance of a law that did not yet exist.” The criminal should know from the first where he stands, first strike or second. That knowledge might well have deterred the second and third offenses, no? I know I’m wrong, but has anybody tried the ex post facto defense, where the first two strikes predated the sentencing law?

    L. Barnes (1b54e8)

  8. Cripes!! Sorry sorry sorry …. I never posted all that stuff, honest! Each time I got “Internal Server Error” messages…..it never never never showed “posted.” Ye gods, three strikes already!!

    L. Barnes (1b54e8)

  9. Barnes-

    It’s not an ex post facto law because the state doesn’t hunt down and re-incarcerate felons for their strikes that happened prior to 1994, but rather enhances the sentence of any crimes committed after the act went into effect.

    They’re still getting the massive sentence only for their third crime, even though the enhancement is due to past actions.

    The Angry Clam (c96486)

  10. I have no problem with three strikes, especially with the knowledge that without exception, these mooks have committed many more than three strikes…that’s just what they were nabbed for. I’ll email your post to Daniel Weintraub at the Sac Bee – he’s an honest guy with the best interests of the state overriding the Bee’s internal politics

    Frank G (78c097)

  11. So, is imposition of the three strikes law’s enhanced sentencing up to the judge or is it mandatory? If mandatory, then it is certainly too “blunt”. If not, then it is a tool for a judge to use in the right circumstances.

    Barnes is correct about it having an ex post facto effect. Whether that is permissible is arguable, but his observation is undeniably true. If you disagree, imagine a law that requires permanent revocation of driving permits after X number of tickets. If you have been somewhat casual (like most teenagers) about traffic laws and simply paying attention to the 12 points a year cutoff then you will definitely feel screwed when you find out at age 35 that your next ticket means bus passes forever. It’s not enough to say “screw ’em, they are criminals (or unsafe drivers)”. There has to be a sense of fairness, even when scumbags are being dealt with.

    mikem (8a74ec)

  12. I got the same “500 error message”. What’s up Pat?

    mikem (8a74ec)

  13. I think my hosting service is slow.

    The sentences are not mandatory; judges have discretion to dismiss strikes in the interests of justice. This discretion is not unbounded, and cannot be abused — but it is inherent in the law.

    Patterico (eea363)

  14. “The state doesn’t hunt down and reincarcerate felons for their strikes that happened prior to 1994….” True. It absolutely does, however, redifine after the fact the quality of those prior convictions; what was once a debt to society paid in full is reborn as a handicap and a threat. That simply is not right. When the government writes finis to your punishment, and then decides that it did not mean it — that’s ex post facto. Unconstitutional. No matter that the judge has certain discretionary powers. Reductio ad absurdam: the gov’t makes past non-crimes offenses that count against you in the event that you commit a felony in the future, as, for example, membership in an organization. How would that be different from the current situation? — Again I ask: has no defense atty ever tried to save his client from life imprisonment by arguing ex post facto?

    L. Barnes (1b54e8)

  15. I’ve always thought that all felonies, misdemeanors and (non-traffic) infractions should be made strikes. Let’s let everyone pay this price, fill our prisons with 10 million people. Sure, they’d be overfilled, but we’d be safer, wouldn’t we? We could also turn all misdemeanors into felonies, and if you pick up that new driving on a suspended license conviction with 2 prior prostitution cases, you get life.

    Anyone opposed this is just soft on crime. Isn’t the 3 strikes argument that we should put more people in prison than absolutely necessary, because that is the only way we can be safest? We over imprison to make us all feel better.

    PD Dude (dc14c9)

  16. “Reductio ad absurdam”.. You got that part right pal. WTF? I support the point you made in your earlier post, but how did we go from changing the rules after the fact regarding taking prior convictions into account to criminalizing previously legal behavior (or membership in an organization???) and using that also?
    Society has long held that it is permissible to take prior convictions into account, within certain bounds. My discomfort with 3 strikes is only in the point you originally made. At sentencing hearings prosecutors are allowed to mention the four previous child rape convictions that a defendant has received. Even evidence of unrelated and non-criminal behavior is allowed IN A TRIAL as evidence of a lack of credibility (prior examples of a defendant lying). My problem is that this is “creating a new crime”, that of committing three violent crimes, without prior notice that the new “crime” is part of law, as Barnes points out. I have no problem with the principle of locking up repeat violent offenders for long periods of time, even life if appropriate.

    mikem (8a74ec)

  17. Cute argument, but the rich guy’s kid didn’t commit an infraction. He killed two people, and Daddy is trying to buy his way out of prison. Wrong time to make that argument, PD Dude.

    Patterico (eea363)

  18. L. Barnes: the Ex Post Facto argument has been raised and rightfully rejected.

    Patterico (eea363)

  19. PD: Take your meds Dude! Misrepresenting others’ viewpoints, especially to the absurd lengths you have gone to, will not change anyone’s mind. Do you support enviromental awareness? So that means you want to kill everyone to decrease pollution, right? That would save the earth, correct?

    mikem (8a74ec)

  20. I’ve always thought that no crimes should be made strikes. Let’s release all prisoners. Sure, our streets would be dangerous, but we’d ensure that innocent people were not convicted, wouldn’t we?

    Anyone opposed this is just insensitive to justice. Isn’t one main argument against tougher sentencing that we should release more people from prison than absolutely necessary, because that is the only way we can ensure no innocent people are incarcerated?

    Patterico (eea363)

  21. Contrary to the L.A. Times sloppiness, Keenan doesn’t own an insurance company. He’s an insurance agent

    who owns a brokerage (or three).

    Xrlq (6c76c4)

  22. Handel covered this on KFI this am

    Frank G (78c097)

  23. Well, I said a long time ago that I knew my point was wrong. From the first I wondered why ex post facto therefore unconstitutional was not obvious and I assumed that somebody had tried it, sometime. To me this means that jurisprudence is so arcane and divorced from common sense that it is just as democratic as surgery: namely, an elite specialization that the Great Unwashed are not qualified to comment on. Something about that stinks. I think we screwed up. Grumble grumble hiss spit.

    L. Barnes (1b54e8)

  24. The idea of Ex Post Facto is this: at the time you commit your crime, are you on notice that what you are doing is illegal, and what your potential punishment is? When someone commits that third strike, they are on notice of both.

    Patterico (eea363)

  25. OK — and I think this could have been said a long time ago in this back-and-forth — so it IS a matter of “Ignorance of the law is no excuse.” (See my first post.) Nothing matters but the third offense, because you should have known its consequences. Never mind that the quality, or implications, of the first two offenses have been retroactively redefined, and drastically so. Life in prison…gosh, draconian. We used to reserve this penalty for really serious crimes, and punish according to the severity of each offense, with a possible penalty for repeat offenders. Now we have given up on that and all punishment is determined by cumulative reckoning. Sea change in the law….. is it wise?

    L. Barnes (1b54e8)

  26. Obviously, my prior post was filled with hyperbole, but for a purpose that I think Barnes fishes out well. In fact, we used to have gradations of punishments based on the offenses and the prior convictions, but before that we used to punish every felony with death (this would actually precede the establishment of our Republic, so maybe “we” isn’t appropriate).

    Smarter minds than ours determined that this was wrong both morally, and for utilitarian purposes. The fact is, if you punish a car thief the same as a murderer, you say to society that cars are as important as lives. This resonates, for it tells people that they should value the lives of the person who’s car they steal the same as the car they are stealing. Many will undoubtedly be deterred from stealing cars, but those who aren’t deterred, are actually encouraged to kill as well. So, maybe you discourage 90% of the petty thiefs out there, but those remaining 10% become ever so violent.

    Real world present day applications? Well, consider that since 3 strikes, the number of LAPD officers killed on duty has gone only upwards, despite a general downtrend in crime (not related, I believe, to 3 strikes, because these are national trends that transcend local 3 strike laws).

    This is for 2 reasons: 1) most people don’t know what are considered strikes and what aren’t when they have them in the past. I have had several clients when I did only misdemeanors who were convinced that they had multiple strikes priors, and their current misdemeanor would be another one; and 2) when people who think that getting caught for a petty theft or some other minor offense will result in life in prison, they will inevitably result to serious measures to avoid capture.

    Graduated penalties reasonably related to the severity of the crime are moral not only because they fairly punish people who commit greater crimes, but because they encourage people not to commit more serious crimes. Call it what you will, say that it invites people to commit petty offenses, but it means that it encourages people to commit petty offenses instead of extremely grave offenses. I would live with that type of society any day over the alternative, draconian, kill or be killed society.

    PD Dude (bf1a28)

  27. PD Dude: the problem with your theory that California’s three strikes law didn’t affect the crime rate is that the entire nation’s crime rate didn’t drop at a uniform level. California’s rate dropped even after controlling for the drops that were occurring nationally, and those that could reasonably have been expected locally if our laws had not changed. Also, I’m not sure why it is a bad thing that most criminals mistakenly believe the three strikes law to be broader than it is. The more crimes they believe are subject to the law, the more crimes stand to be deterred. And that’s a bad thing?

    Xrlq (6c76c4)

  28. Warning. Esoteric Cal. crim law stuff to follow.

    You state: “Under the proposed initiative, the killing of two people by Keenan’s son will no longer be considered a strike. Instead of having to serve 85% of his sentence, he will have to serve only half. He could get out by the end of this year.” This gives the impression that he is serving 85% time because his current offense is a “strike”. I expect that he is actually serving 85% time because his current offense is a violent felony. All violent felonies are strikes, but not all strikes are violent felonies.

    If I understand the initiate and the facts of the case correctly (what I understand comes only from your post and the L.A. Times article), it appears that the son had no prior convictions. That means he has no prior strikes and he was not sentenced under the Three Strikes Law. He is probably serving 85% time because his current offense is a violent felony and section 2933.1 limits credits to 15% for those convicted of violent felonies listed in section 667.5(c). So the initiative must amend section 667.5(c)(8) which provides that commission of a felony with personal infliction of GBI is a violent felony.

    This analysis doesn’t eliminate the self-serving nature of the father’s efforts. But it also doesn’t eliminate the fact that it is time to amend the law to apply only where the 3d strike is serious or violent. Fair sentencing and the state budget (i.e. my kids’ education) require nothing less.

    J. Soglin (c1a4fd)

  29. Xrlg – Last thing first. As I discussed, it’s a mixed blessing that people mistakenly believe they are subject to life everytime they commit any crime. Do you want someone holding you up to believe that killing you will bring about relatively the same punishment as just taking your property? I’d assume not.

    You position on the effects of 3 strikes here in California is wrong. California did not have as large a crime decrease as places such as New York, or Philly, or many other big cities. Even more importantly, when you look at the crime rate in California by county, those counties that strictly applied 3 strikes had lower drops in crime (counties such as LA & San Diego) than those counties who enforced the law only against serious or violent felonies (such as San Francisco and some more rural counties. One would assume statistics to run in the opposite manner.

    I know it’s not hip to suggest that the crime rate is more controlled by demographics and the economy, unfortunately, it seems to mirror those two factors more than any other factor one can ever point to (especially levels of punishment). The sad fact is that no matter how severe the punishments, given the right environment, there is always someone there willing to pick up the slack when the person in front of him goes to prison for life.

    PD Dude (bf1609)

  30. Soglin brings up an important point. Taking the case of the kid who’s in prison for the car wreck, I have no quarrel with him going to prison for what he did. But let’s be honest about this – was that a crime of violence? I know someone died, but people die of heart attacks, or car accidents (emphasis on accident), or faulty electrical wiring, or other non-intentional reasons all the time.

    If we are going punish heavily for violence, let’s make sure it really is violent, and not just severely tragic (or more so, in this case, since it was tragic and an atrocity). This doesn’t mean “let them go,” as people will invariably say, it means let’s call a spade a spade. If someone drives recklessly, we call them reckless, not violent. The fact that someone got hurt means they get punished more. But it doesn’t make the act more violent.

    Conversly, if someone shoots at someone else with a gun, we don’t call that reckless, or unfortunate, we call it violent, because they intended great harm through their action, regardless of whether they suceeded. It seems like there is nothing wrong with making the law reflect our morals.

    Incidentally, until more recent rubber stamp appeals courts said so, you actually had to intend to inflict great bodily injury (or at least intend to harm, with great bodily injury being the likely result). This means that until the Courts of Appeal made it their holy mission to affirm every conviction through whatever dishonesty they could conjure up, the law said exactly what this man is trying to turn it back to.

    Hardly revolutionary.

    PD Dude (bf1609)

  31. J. Soglin,

    You are exactly right in your observations regarding violent felonies, 85% credit, and the apparent record of this rich guy’s son.

    I don’t think any of it makes any difference to the arguments being made, but I agree that your points are accurate.

    Reasonable people can disagree regarding the supposed necessity to make the third (or the second) strike serious and/or violent. I disagree with you, but I don’t denigrate your position.

    However, the proposed initative does much, much more. Have you read my other posts on the topic? I encourage you to do so. My basic criticism of the law, with links to other relevant posts, is set forth here. Please read it — and the links contained therein — and let me know your thoughts.

    I don’t have any illusions that I’ll change your mind — but I may educate you on just how far-reaching this law would be.

    Patterico (21433d)

  32. Good morning, Patterico:
    After having read all the great and interesting debate above I fell a bit ashamed to post this comment/question, but as my grandma always told me: there are no stupid questions, just stupid answers. anyway, being German and even though with some basic understanding of US law, I have not yet totally understood the 3 strike rule under debate. I can remember something about it in BluesBrothers 2000, but fail to have the fact and details.
    Perhaps you can give me some information about more simple and overall readings on this. Of course you can just send me an email and not annoy your skilled and informed other readers….

    Cheerio

    Pat (69088f)

  33. Hi everyone:

    Thank you for your comments. We need all the help we can get in getting the word out.

    Keenan does own several insurance companies, including Cheap Insurance in Sacramento.

    If anyone wants more info visit http://www.noprop66.org.

    Sincerely,

    Sara Shults
    Deputy Campaign Manager
    No on 66

    Sara Shults (1360a2)

  34. Another Nonviolent Victim of Our Draconian Three Strikes Law
    James Andrew Abernathy of La Habra was convicted on Monday of an egregious act of animal cruelty. More specifically, Mr. Abernathy adopted a German Shepherd from the animal shelter, which he named after his then-girlfriend, Marie. Later, following an…

    damnum absque injuria (1e09c7)

  35. http://www.crimblawg.com/2004/06/california_crim.html
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    Criminal Appeal (af7df9)

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  38. Crime in California
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