Comments on: Criminal Justice Professor on Three Strikes

By: Xrlq

Xrlq — Tue, 30 Nov 1999 00:00:00 +0000

I don’t know about the second break. Isn’t that where the “waiving double jeopardy” provision may actually have some teeth? If one strike is stricken but another, previously stricken strike is resurrected, isn’t there at least the potential that inmate’s resentencing could end in a wash?

By: Patterico

Patterico — Tue, 30 Nov 1999 00:00:00 +0000

No. The double jeopardy provision will have no effect in such cases, because if your current felony is not a strike, it doesn’t matter how many previous strikes you have — you are still treated as though you have none.

In truth, the “second break” argument is really just another reminder that third-strikers are getting a bigger break than second-strikers. Assuming the law applies retroactively to second-strikers, third-strikers will be treated exactly the same as second-strikers (i.e. both will be treated as though they had no previous strikes). Accordingly, third-strikers are getting a bigger break.

By: Xrlq

Xrlq — Tue, 30 Nov 1999 00:00:00 +0000

So if you demand re-sentencing on the grounds that your current offense is no longer a strike, you don’t have to waive double jeopardy as to a past offense that could have been prosecuted as a strike, but wasn’t? If not, what on earth DO inmates waive double jeopardy for?

By: Patterico

Patterico — Tue, 30 Nov 1999 00:00:00 +0000

For prosecution for offenses arising out of the same set of operative facts as the crime for which they received their latest conviction.

By: Xrlq

Xrlq — Tue, 30 Nov 1999 00:00:00 +0000

Ah. It sounds like this is meant to address a narrower issue than I thought, namely, that a prosecutor may have gone after an easy felony for strike three, not because a violent or serious one wasn’t committed, but because the lesser offense was easier to prove, and the sentence just as stiff.

The ironic part is that if this law had been enacted earlier, it might not have helped Pizza Man, and may have even hurt him by allowing prosecutors to retry his “theft” as the robbery that it was, thereby destroying the basis of the appeal that eventually released him under the existing law.

By: Patterico

Patterico — Tue, 30 Nov 1999 00:00:00 +0000

Right. For example, my wife had a guy who committed a horrible sex offense, and was facing 50-to-life either under the Three Strikes law or the sex-related one-strike law. So he pled to 25-to-life to have a chance of getting out.

They just happened to structure the plea around the Three Strikes law. So now he gets resentenced to a paltry term, and she has to retry him. Hopefully, the statute of limitations has not passed . . .