The L.A. Times reported yesterday: L.A.’s Busiest Crooks to Do More Time. Sounds pretty good, and maybe it is. Here is the beginning of the article:
Working from research showing that 10% of criminals commit up to half of all crime, Los Angeles police officials and prosecutors have agreed on a program to seek the stiffest possible penalties for the most frequent repeat offenders, even for relatively minor crimes.
The so-called 10 percenter program, which could begin operating in Los Angeles County courtrooms this summer, aims to reduce crime on the streets by keeping repeat criminals behind bars as long as possible. Police Chief William J. Bratton said that would help the Los Angeles Police Department, which has fewer officers per capita than other major cities.
The article clarifies that no new laws must be passed to implement the program. We need only fully enforce the ones we have:
The program does not require passage of any laws but rather involves police and prosecutors working together to identify repeat offenders. They will use a new, standardized form to document why convicted criminals merit special attention, then ask judges to sentence them to the maximum amount of time possible.
The idea is that police can work to provide more background information on certain defendants, as part of a recommendation that prosecutors seek the maximum sentence:
The 10 percenter program would ensure that prosecutors had the information they needed to seek stiffer sentences.
In a series of meetings during the last few months, police and prosecutors have agreed on the basic rules of the program. Now they are developing a standard form that will be filled out by officers to provide information that justifies seeking more jail time, [Janet Moore, director of central operations for the district attorney’s office] said.
Police “are making a request that we look at the person more carefully,” Moore said. “It is incumbent on the officer to designate a person as a 10 percenter. They must explain to us why that designation is justified. There has to be a solid basis in law for doing so.”
Lt. Tom Murrell of the LAPD’s Foothill Division said some 10 percenters don’t have long histories of convictions on their rap sheets, but there can be evidence that they were involved in other crimes.
After a person is arrested, officers can look through past arrest reports to determine whether there are similarities to other cases. For example, a robber might have used the same words in shaking down victims in several instances. If that information is added to the rap sheets provided to prosecutors, it could provide a basis for seeking a tougher penalty.
“If the LAPD is able to show us the designation is justified, we will try to seek the maximum penalty that is appropriate,” Moore said.
We can safely discount the concerns articulated by “civil libertarians” and defense attorneys. What crime-fighting program did they ever approve of? It sounds like a very good idea in theory, and the people in my office who have been studying it have no doubt taken a closer look at the proposed program than I could possibly glean from a single article in the L.A. Times. Janet Moore, quoted in the article, is an experienced D.A. who has prosecuted many significant crimes in our county, and I trust that she is on top of this.
There is one potential problem with the program that concerns me, however, which I assume top administrators in my office (like Janet) are taking a close look at. That issue is simple: I strongly suspect that “ten percenters” are not equally distributed throughout the County.
Listen to this description of a typical “ten percenter”:
Murrell provided an example of how his Foothill Division detectives use their list, which includes a 41-year-old man who has 14 felony bookings on burglary and narcotics charges and five convictions dating to the 1980s.
Ten of his arrests involve crimes committed in two reporting districts of the Foothill Division, so detectives know to look at him if there is a string of burglaries in those neighborhoods. The man’s file indicates that prosecutors repeatedly refused to file minor charges or agreed to lesser charges as part of plea bargains, so he has served little time during his three stints in prison.
Murrell said that without the additional information developed by officers from police reports and other sources as part of the 10 percenter program, prosecutors might not get the full picture.
I think that’s fantastic. I am always looking for the fullest possible picture of the defendant, and this sounds like a great way to help fill in the gaps.
But the “ten percenter” described is quite a common criminal in Compton. Fourteen felony bookings on burglary and narcotics charges? That’s all? Only five convictions dating back to the 1980s? Just five? What a piker!
In my courtroom in Compton, I see defendants with similar records all the time. My guess is that far more than 10% of the criminals in Compton are “ten percenters,” whereas in some other jurisdictions of the county, the “ten percenters” probably make up far fewer than 10% of the criminal population.
Why is this a potential problem?
Simple. To get the maximum sentence against the “ten percenters,” you have to take them to trial. And you can’t stack up all those trials in the same two or three courthouses in the county.
If you have a criminal who deserves the maximum possible sentence, and you have a decent case against him, it’s not hard to seek the maximum. But one thing is required: you will have to go to trial. I can count on one hand the number of criminals in my career who entered guilty pleas in return for the maximum possible sentence. You could chop off all ten of my fingers and I could still count that number on one hand.
It just doesn’t happen. Ever.
Criminals don’t plead for the maximum sentence. Period.
This means: if you want the maximum possible sentence against a particular defendant, you have to go to trial.
That’s fine. Some people need to go away for the maximum sentence. One of the main functions of a good District Attorney’s office is to identify these criminals, and take them to trial. This allows us to protect the public and do our jobs in the proper manner. It’s what my job is about, and I’m proud to do it — and I think I do it well.
But don’t kid yourself. Most cases resolve through plea bargains. We’re talking the vast, overwhelming majority of cases. You just can’t process hundreds of thousands of people through a criminal justice system like we have in L.A. County without plea bargains. It’s an ugly but very real fact of life. The best you can do as a prosecutor is to try to make sure that the people who get the plea bargains are the less dangerous criminals.
Even then, you’re often limited by problems of proof. “Beyond a reasonable doubt” is a tough standard to sell to 12 people who must all agree. And the sad fact is that the jurisdictions like Compton with the greatest number of violent, dangerous criminals are also the jurisdictions with the toughest jury pools, where obtaining convictions is the hardest.
And, realistically, this fact plays into the deals that defendants get. It’s harder to get a defendant in Compton to accept a stiff prison sentence in plea negotiations than it is in Pomona. That’s because the defendant can take his case to trial in Compton, and he’ll stand a decent chance of beating it. In Pomona, that same defendant is getting convicted. He knows this, and he’ll consent to a longer prison sentence in a plea bargain.
It’s totally counterproductive that the system works this way. But don’t kid yourself: it does. It’s a simple function of what you can win, where. You want to change this fact? Change the jury pool.
Now, understanding this harsh reality, you’re trying to tell me that we’re going to trial on every “ten percenter” in Compton — even though we have far more than our share of ten percenters coming through our court?? And, even though it’s tougher to obtain convictions there — and even though you, as taxpayers, are unwilling to pay greater taxes to allocate greater law enforcement resources to Compton — you want us to start going to trial on an inordinately high percentage of cases? So we can send the 30-50% of our criminals who are “ten percenters” away for the max?
That’s great — but you’d better double the number of D.A.’s we have in Compton. Because the 40 or so we currently have aren’t going to be enough, by half. It’s not our fault. It’s just a function of the distribution of “ten percenters” throughout the County.
In the end, without a radical redistribution of crime-fighting resources throughout the county, I suspect that you’ll end up with something of a mishmash. It will be the criminal law equivalent of what some states force their public universities to do: accept the top 10% of students from each school in the state. You won’t get the top 10% of students in the state. But you’ll get diversity. Same with this program. You’ll put away the worst 10% of criminals in Pomona, the worst 10% in Van Nuys, the worst 10% in Long Beach, and the worst 10% in Compton. (Probably pretty close to what we’re already doing anyway.) But you won’t put away the worst 10% in the county, because those 10% are concentrated in the worst areas.
If you really want to get the worst 10% in the county, you’ll have to radically redistribute law enforcement resources to target the most problematic areas. Somehow, I don’t think we’re ready to do what’s necessary. I’d like to think I’m wrong. But somehow, I don’t think I am.
UPDATE 6:21 a.m.: I should make it clear that the “we” in the preceding paragraph is L.A. County taxpayers, not the D.A.’s office. I’m quite sure that Steve Cooley would be thrilled to send more people to prosecute crimes in places like Compton and downtown, but he can’t do that by simply shifting resources. We can’t just stop prosecuting crimes in Pasadena and San Fernando because we’d like to try twice as many cases in other courthouses. We’re already thinly staffed throughout the county as it is. To fully carry out the “ten percenter” vision would require a substantial commitment on the part of the taxpayers and/or the Board of Supervisors — either to raise taxes, divert more money to law enforcement, or both. That’s what I don’t think is going to happen — though it should.
I should also reiterate that I think we’re already doing a pretty good job of targeting the right people. I have plenty of examples from personal experience, which I may or may not share on the blog, but which I would be happy to tell readers about over a beer.