My Letter to the L.A. Times Readers’ Rep Regarding Proposition 36, the Proposition to Gut Three Strikes
I have just written the following email to the Readers’ Representative at the L.A. Times:
Ms. Edgar,
Your newspaper’s “voter guide” entry on Prop. 36 states: “Currently, when someone with two or more serious or violent felony convictions is convicted of a third felony — no matter what the seriousness — he or she is automatically sentenced to 25 years to life.” This is false. “Automatic” means “occurring as a necessary consequence” with no exceptions. But nobody is “automatically” sentenced to 25 years to life in California when their third strike is not serious or violent.
First, in Los Angeles and other counties, prosecutors exercise discretion in such cases, such that the overwhelming majority of potential third strikers are sentenced to determinate terms, usually under ten years.
Second, even in cases where a prosecutor decides to proceed with a case as a third strike, judges have the power under Penal Code section 1385 to strike a strike. This motion — called a “Romero” motion from the California Supreme Court case that ruled such motions are authorized by law — can be made by the judge without any request from the defendant. In such a motion, the judge considers a range of factors, including the seriousness and remoteness of the strike priors, the defendant’s behavior since his last strike prior, and his prospects for becoming a law-abiding member of society. Judges often use Romero motions to strike priors and sentence defendants to less than 25 to life. It happens literally daily across Los Angeles County.
It is misleading to say that a 25 to life sentence is “mandatory” for a current offense that is not serious or violent. It does not reflect what is happening in the state of California. I understand that the Los Angeles Times favors Proposition 36, but misleading your readers is not a legitimate way to attract support for a proposition.
It is imperative that this error be corrected before the election. I ask you to assign this correction the highest priority.
Yours truly,
Patrick Frey
They have their thumb on the scale. You can help me pry it off by adding your thoughts to Readers’ Rep Dierdre Edgar. Be polite and factual. She can be reached at readers.representative@latimes.com.
But nobody is “automatically” sentenced to 25 years to life in California when their third strike is not serious or violent.
First, in Los Angeles and other counties, prosecutors exercise discretion in such cases, such that the overwhelming majority of potential third strikers are sentenced to determinate terms, usually under ten years.
Is that done only by not charging someone with a felony? If so, all you can say is that when their third strike is not serious or violent is misleading, because prosecutors will deliberately avoid triggering that, but it’s not wrong because they used the word convicted
What you would say is that prosecutors pay attention to the potential sentence when offering plea bargains and do not go strictly by law codes. If someone would get a higher sentence than someone else when convicted of the same offense, they’ll offer a lower offense to that person than they would to somebody else. And the same thing goes when an conviction would have immigration or naturalization consequences.
The problem may be that some people may not understand how the criminal system works, and confuse “commits” with is “is convicted”
But let’s say a prosecutor didn’t act that way and for one reason or another went for the harshest offense. Now you say, there’s a “Romero” motion. The defendant does not need a competent or time free defense attorney.
That sounds like what you are saying is that “three strikes” as the LA Times described it, is not in fact the law.
I checked California Penal Code 1385.
http://law.onecle.com/california/penal/1385.html
It’s a motion to dismiss. The judge cannot strike a prior conviction, but he can strike the latest one in the interests of justice. This means the defendant gets no penalty at all. So, if say, shoplifting a pair of socks, or being accused of it anyway (he may have defense he didn’t eave the store) and being convicted would send him to jail for a long time, but someone else would be offered a misdemeanor or something and five days n jail, in the case of someone where that would be a third strike, the case is dismissed.
Judges often use Romero motions to strike priors and sentence defendants to less than 25 to life. It happens literally daily across Los Angeles County.
Can you give a percentage or something? Are there any informal rules as to when this thing happens?
I think what you are trying to say is that nobody, or almost nobody, as a practical matter is going to get 25 years in jail for walking out of a store with a $2.00 item like some pencils or an umbrella. (Is the 8th amendment to the U.S. Constitution, or some similar California provision, a factor?)
Sammy Finkelman (a1f34f) — 10/29/2012 @ 8:25 amGood Lord, Sammah.
JD (436368) — 10/29/2012 @ 8:35 amIt sounds a little like Illinois. We do have mandatory minimums in some cases*, but in general a judge may not impose a custodial sentence without a finding that it is necessary for the protection of society and required by the interests of justice.
*Homicides, rapes, firearm violence, some drug sales.
nk (875f57) — 10/29/2012 @ 8:44 amSammy must be a sixteen year old know-it-all.
peedoffamerican (621c41) — 10/29/2012 @ 9:22 amAnd concerning overturning the three strikes law. This is the mentality of the left;
peedoffamerican (621c41) — 10/29/2012 @ 9:34 am1. These poor antisocial criminals need every break they can get, why it’s cruel to lock them up and protect society.
2. Let’s kill us some unborn babies.
“Threetime loser’ was a catchphrase before the sixties. This is nothing new. Better than hanging.
nk (875f57) — 10/29/2012 @ 9:40 amProp 36 is one of the three initiatives I haven’t read or taken a stand on yet, but certainly anyone arguing for either side should be expected to tell the truth about how things *currently* work.
I applaud this letter. 🙂
aphrael (ca5099) — 10/29/2012 @ 10:59 amExpecting accuracy in media is a forlorn hope, akin to waiting for the arrival of the “Flying Dutchman”.
If this is corrected at all, it will be buried somewhere in the classifieds (if they still exist).
“Threetime loser” was a catchphrase before the sixties. This is nothing new. Better than hanging.
When the state successfully hangs someone, there is absolutely no danger of recidivism.
AD-Restore the Republic/Obama Sucks! (b8ab92) — 10/29/2012 @ 11:36 amThe same cannot be said for other forms of punishment.
yes on 32, no on everything else.
/California Election Made Easy
redc1c4 (403dff) — 10/29/2012 @ 12:06 pm9- Works for me!
AD-Restore the Republic/Obama Sucks! (b8ab92) — 10/29/2012 @ 12:10 pmCalifornia just needs to throw more money at the problem. Pony up people!
daleyrocks (bf33e9) — 10/29/2012 @ 12:27 pmThere is no money left to throw.
AD-Restore the Republic/Obama Sucks! (b8ab92) — 10/29/2012 @ 12:40 pmCA has direct debts of $41B
(http://www.calwatchdog.com/2012/05/29/ca-debt-much-larger-than-reported/)
not counting the untold Billion$ that the various state/local retirement funds are upside down,
all of which has to be covered by taxpayers in one way or another.
You can help me pry it off by adding your thoughts to Readers’ Rep Dierdre Edgar.
Also mention you got his name from Rupert Murdoch.
Corky Boyd (c2186d) — 10/29/2012 @ 1:35 pmcorrection to above:
Also mentiion you got her name from Rupert Murdoch.
Corky Boyd (c2186d) — 10/29/2012 @ 1:37 pmI have some sympathy for the extremely rare prisoner whose Third Strike truly was a non-violent and petty crime. I’ve seen (on paper, I mean) a case in which the Third Strike was shoplifting a single bit of cheese from a grocery store. (And unlike the famous Pizza Guy case, there was no confrontation or violent taking of the property.) At least as a matter of discretion, Cheese Guy should have gotten, say, 8 to 10 years, not life.
I voted no on 36 for these two reason, though, among others: deterrence in many instances, and bargaining power at trial (when deterrence doesn’t work).
As to deterrence: we hope that a “two strikes” felon will bear his precarious situation very much in mind. “I’d better keep clean, or all I have between me and 25-to-life is a Romero motion.”
As to bargaining power: For those two-strikers who DO step out of line, despite deterrence, I want prosecutors to have a huge bargaining chip. “Well, Spike, I’ll offer a ten-year deal in which we don’t charge both of your strike priors. Or you can roll the dice and probably end up with life, because there’s no way the judge is going to grant your Romero.”
Prop 36 would muddy up this bargaining power in many cases by creating a new layer of litigation over whether the charged third strike was serious enough.
Mitch (341ca0) — 10/29/2012 @ 1:53 pmThe whole point of “Three Strikes” was to put recidivists back into jail where they were to stay until they were too old, or too cold, to commit further offenses against society.
AD-Restore the Republic/Obama Sucks! (b8ab92) — 10/29/2012 @ 2:14 pmGreat letter, Patterico, but instead of signing it “Yours truly,” where the LA Times is concerned you should sign it “Yours truthfully.” You know, as in “I am here to set the record straight.”
JVW (f5695c) — 10/29/2012 @ 2:48 pmMine said “a free facking press ain’t worth spit if it lies to you in service of its ideological agenda”
JD (436368) — 10/29/2012 @ 3:06 pmUh, no.
A judge can strike a prior conviction. Period.
Patterico (8b3905) — 10/29/2012 @ 5:14 pmOur esteemed host asked The Los Angeles Times:
[snort] I can just imagine [chuckles] exactly how high a priority [guffaws] the Readers’ Representative [rolling on the floor laughing my ass off] will give this issue. [Just barely avoiding wetting myself I’m laughing so hard.]
The amused Dana (f68855) — 10/29/2012 @ 5:52 pm