Patterico's Pontifications

5/9/2006

“Ten Percenters”: Can We Really Target Them All?

Filed under: Crime,General — Patterico @ 6:02 am



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.

23 Responses to ““Ten Percenters”: Can We Really Target Them All?”

  1. Ooh, ooh, ooh! Call on me!

    Don’t understate the racial angle. Diversity is insane in the criminal justice realm. But if you did try to put the county’s real top 10 percenters away, shifting resources and all, there would be racial demagoguery galore. And riot city.

    Good luck.

    Attila (Pillage Idiot) (dfa1f1)

  2. What ever happened to “Don’t do the crime if you can’t do the time”?

    This is the result of putting judges like minded to Stephen Rhinehart on the bench.

    Maybe if Rhinehart, Ripston, and the other bleeding heart ACLU supporters were locked up with their cause celebs and got what their cause celebs dished out to the public, we might see enlightenment on that side of the aisle.

    PCD (f4f85f)

  3. 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.
    Patterico… this is a great opportunity! You have a topical issue and someone in your office with information… go interview her for the blog!

    Darkmage (4de99c)

  4. Los Angeles County is a mess and it starts with a Board of Supervisors that are a joke.

    There is no political will by the District Attorney or the Sheriff to prosecute crime. Why? Most of their political supporters are the Westside hand wringers, the Southside apologists or Eastside illegal alien supporters (who comprise a healthy percentage of Los Angeles County criminals).

    However, when D.A. Steve Cooley wants to change the three strikes law affecting my county, Ventura, Flap says hands off – deal with your own mess.

    Patrick, I feel your pain…..

    Flap

    Flap (9a1d0f)

  5. Wouldn’t there be a flip side to concern about going trial? If you have a strong enough case against one of these people and you can put it on the table that you have what you need to go for the maximum, doesn’t that give you leverage to get plea for longer than you might have otherwise? All it would take is one or two successful prosecutions to establish the needed credibility of the threat.

    Yes, you’re not getting the maximum but at least your plea sentences are getting longer.

    Stephen Macklin (fc20a6)

  6. Great post.

    Where I am, we have a career criminal designation, but that’s really for the one percenters, not the ten percenters. Career criminals get tried a lot.

    I’d have to have more fingers than our host to count the number of guys who have pled to the sheet and pleaded for mercy; people do that sometimes in the hopes that the judge will cut them a break. Still, the point is well-taken – if you’re not making a deal, the chance of a plea is far less likely.

    The most critical points can’t be underscored enough:

    1. Fund the police. Put cops on the street. If you don’t do that, you won’t solve crimes. By the time they’re responding to the auto theft, your car’s been stripped and is 35 miles away.

    If you don’t adequately staff police agencies, nothing else matters.

    2. Fund the prosecutors’ office. They need the money to hire staff. Otherwise, they’re forced to deal off some cases that shouldn’t get dealt. You need to try some of those .07 deuces, those tough DV cases, and if you don’t, you’re selling out a class of cases.

    3. (Not Pat’s point, but important, I think): Fund the public defender’s office and get good people there. I can’t stress this enough. If you’ve got an ineffective, overworked P.D.’s office, then the rich get less justice than the poor. It doesn’t have to be that way; in many jurisdictions if you were to pick a PD at random and a private attorney at random, you’d probably be happier with the PD. But if you give them no chance to push cases, and the private attorneys are pushing, then you end up with disparate justice. And that’s a flawed system.

    –JRM

    JRM (de6363)

  7. Although you touch on this point Patterico, I think it must be emphasized — We’re not afraid to go to trial … but we’ve got to have good evidence to win these cases. Yes, maybe even better evidence in places like Compton.

    I find it funny that this was an LAPD study. Funny in that they don’t cover the really worst of the worst areas like Compton. Sure they cover their share … but not all of them.

    Also, in my experience, LAPD’s cases aren’t the best. Sure they have a large number of cases … maybe a larger number on average than other agencies … but they also are not as well investigated. Which leads to the problem in getting convictions on these 10%ers. Sure, we’ll put them away, just give us the cases to do it with. Or else the cases will be bargained down to something less than they should.

    MOG (59bfb8)

  8. I will be interested to see how this square’s with DA Steve Cooley’s support of legislation to modify three strikes. If they consider someone with 14 felony bookings (not convictions) and 5 felony convictions (unclear whether they are strikes) to be a “ten percenter” then isn’t the persons with 2 prior serious or violent felonies a “ten percenter”? Most three strikes defendants have numerous additional convictions in addition to their 2 prior serious or violent felonies. I would suspect a very large percentage of them are poster childs for the “ten percenter” program.

    If their third strike is not a serious or violent felony and they are a “ten percenter” it would seem that by the terms of the program we would be seeking the maximun sentence — a sentence of 25 to life under the three strikes law. Current LA County DA policy is to pursue the majority of these cases as “two strikes” and proposed legislation would make this the law for the rest of the state as well.

    So in one proposal (three strikes) we would limit the sentence we could impose on these recidivists, and in another proposal (ten percenter) we will be seeking the “maximum term.”

    Call me cynical but for all the reasons set out in Patterico’s post I would be surprised if the LA County DA’s office was doing much more than lip service to the “ten percenter” program. We’ll get the information from LAPD, we might seek slightly higher sentences in plea bargains, but I would be shocked if we actually refused pleas and tried all these defendants.

    CStudent (59bfb8)

  9. Wow, for smart guys, you attorney’s can be a little dense.

    Let me lay out a simple solution to BOTH your problems.

    Problem #1: Ten-percenters, who you can’t all take to trial, and who won’t cop to the maximum sentence.

    Problem #2: No time for actual trials.

    Hey, here’s a solution: Up the minimum AND maximum SENTENCES.

    Felony burglary: 5 years. Cop a plea? OK: 3 years.

    Problem solved.

    RightNumberOne (11dd90)

  10. Our host has it exactly right on allocation of resources. JRM (Comment #6) is also exactly right on his #1 point. One policeman on the street corner can prevent a 100 times more crimes than a prison guard guarding three to five prisoners. Which does not mean that we do not need prison guards. The arrest must mean something. (Unless, of course, we amend the Constitution to allow field trials and summary executions).

    RightNumberOne, Comment #9:
    In my state, all burglaries are felonies and the penalty is five to fifteen and can be enhanced to thirty by a prior felony conviction. It’s meaningless unless it’s enforced: 1)By arrest and 2) by prosecution. Read our host’s post more carefully. We need police to arrest and develop the evidence; prosecutors to try the case; judges to try them and courtrooms to try them in. Politicians passing a law imposing a harsher penalty, without the resources to enforce it, is just a fraud on the public. (Or, very rich jurisdiction with a high tax base will be able to enforce the law and poor jurisdictions will not. Lesson to criminals: Steal from the poor, not the rich.)

    nk (f58916)

  11. Maybe you didn’t get my point then NK:

    If a guy is arrested for Burglary first degree felony, which let’s say for purposes of my example carries a 5-15 year sentence, and then you DA types plead it down to Burlary, third degree with a senctence of 6 months, then such a system CREATES the Ten-Percenter problem.

    What needs to happen is that Burglary, third degree needs a MINIMUM sentence of 3 years, not 6 months. That may mean that burglary, first degree, needs a sentence of 7-20.

    The problem Patterico points out is that DAs simply MUST plead cases. There aren’t enough of them to actually TRY cases. Defense attornies CANNOT recommend a plea if it means their client gets the MAXIMUM sentence – that would be malpractice.

    So the solution is to INCREASE MINIMUM sentences for the crimes the bad guys ARE PLEADING TO. If that means also upping the minimum sentences for the crimes they are ARRESTED FOR in order to create an incentive, so be it.

    If a Ten-Percenter who used to get out in 6 months, instead gets out in 3 years – you’ve significantly reduced the profit margin on crime without having necessarily to try more cases.

    RightNumberOne (11dd90)

  12. I’m not a lawyer, but couldn’t you farm out the extra cases to other venues?

    Patricia (2cc180)

  13. Very interesting thoughts/observations.

    Let me try the idea on you a different way. Given what you know about the likelihood of your present criminal, err, clientele going to trial anyway, what additional resources would the Compton office need to take the worst (by whatever standards) 10% of them to trial without plea bargains and try for the maximum penalty?

    Joel Rosenberg (10e6b3)

  14. Oh, and for the folks who think there’s a simple, easy solution, come on — if there was, it would already have happened.

    Joel Rosenberg (10e6b3)

  15. Joel –

    There IS a simple, easy solution. Its called “Modified 3 strikes and you’re out” – get 3rd felony convicton…get 5 mins to say goodbye to Mommy…get taken out back….bullet in the head. No fuss, no muss, no “endless appeals”, no waste of taxpayer money warehousing these animals. I figure if 3 trips thru the justice system has not “rehabilitated” (how I loathe that word…) you, then you are obviously a waste of skin and a non-functioning member of society. Do you not agree?

    How many “2nd chances” do these folks get anyway? Get rid of the 7-10% that commits the majority of the crimes and you’ll solve your crime “problem”.

    As for “it would have been tried already” – that would be true if you included the political willpower to do it…

    Bob (527a31)

  16. 1) is Compton really more defendant friendly to criminals than downtown? (2) if resources were allocated would the volume go down eventually? (3) Is witness intimidation an issue with repeaters (I assume it is) and thus another speed bump to dealing with violent recidivists? (4) would voters be willing to re-visit the issue of balloning pensions for public employees who can retire at age 50 in some places, to save some money to put more cops on the street? (5) Would police officers agree to defer retirement eligibility and the sweeetners in their pensions to help with that?

    Frank Drebbin (bb7b00)

  17. I’m not a lawyer, but couldn’t you farm out the extra cases to other venues?

    No, for many reasons. Mainly, we are very thinly staffed everywhere.

    Patterico (50c3cd)

  18. Let me try the idea on you a different way. Given what you know about the likelihood of your present criminal, err, clientele going to trial anyway, what additional resources would the Compton office need to take the worst (by whatever standards) 10% of them to trial without plea bargains and try for the maximum penalty?

    I have the standard disclaimer on the sidebar, but I need to make it especially clear that I don’t speak for my office when answering questions like this.

    That’s not really the relevant question. My point was that, if you target the worst 10% in the county, Compton will probably have more than its share. We already do try any case where we think we can’t get an appropriate sentence from a plea. But in reality, what is considered an appropriate sentence is affected by resources — those of the police department, the D.A., and the courts.

    We already tend to be tougher where the current crime is more serious, and/or where the defendant’s record is more serious. But I wonder whether we have the resources to seek the maximum sentence on every single case committed by someone considered a “ten percenter” — regardless of whether the current crime is relatively less serious, like possession of a controlled substance (a serious crime to be sure, but relatively less so than, say, rape).

    Patterico (50c3cd)

  19. 1) is Compton really more defendant friendly to criminals than downtown? (2) if resources were allocated would the volume go down eventually? (3) Is witness intimidation an issue with repeaters (I assume it is) and thus another speed bump to dealing with violent recidivists? (4) would voters be willing to re-visit the issue of balloning pensions for public employees who can retire at age 50 in some places, to save some money to put more cops on the street? (5) Would police officers agree to defer retirement eligibility and the sweeetners in their pensions to help with that?

    1) Perhaps slightly so, but that wasn’t my point. My point is that Compton and downtown are more defendant friendly than other jurisdictions, such as (say) Pomona.

    2) Reallocation without extra resources will do nothing. More resources would reduce crime somewhat, in my opinion.

    3) It’s a factor in gang cases. But it is also a factor that is routinely overcome.

    4) and 5) You don’t get something for nothing. Take away police perks and see whether it affects recruiting. Hint: it will. You lay your life on the line for these jobs. Reducing pensions doesn’t increase the attractiveness of the job.

    Patterico (50c3cd)

  20. Just some extended thoughts on

    (3) Is witness intimidation an issue with repeaters (I assume it is) and thus another speed bump to dealing with violent recidivists? (4) would voters be willing to re-visit the issue of balloning pensions for public employees who can retire at age 50 in some places, to save some money to put more cops on the street? (5) Would police officers agree to defer retirement eligibility and the sweeetners in their pensions to help with that?

    On three, Pat’s experience is the same as mine. In general, witnesses are *not* at risk from recidivist offenders, with the exception of gang witnesses on gang cases, and, to a lesser extent, civilian witnesses on gang cases.

    On four and five, Pat’s point is well taken that recruiting good cops is important, but also you generally *want* cops to retire at 50. It’s a young person’s game to go running after bad guys. This way, the people who are staying really want to stay.

    Sure, you lose some institutional knowledge. But relatively young retirement ages for cops makes a huge amount of sense.

    –JRM

    JRM (5e00de)

  21. What happens when Chief Bratton’s “10% Solution” bumps up against SO-40? If he would rescind SO-40, a lot of his 10%’ers could be dealt with without involving the DA’s office.

    Another Drew (c6d4d5)

  22. All y’all have ignored an even bigger problem – prison space.

    I am all for throwing the bums in a rotting cell and throwing away the key, but the do-gooders will not allow for this. As it is, the worst of the wort are getting out earlier and earlier simply due to space issues.

    From where, good people, will the resources and the will to build, maintain, and staff, prisons come?

    Ed (fa4ac8)

  23. […] P.P.S. So why does this happen? A big part of it is obviously the crush of cases. Although Lopez acts as though LAPD isn’t making enough drug arrests downtown, they make plenty every single day. The courthouse is flooded with them. And I have explained before that the D.A.’s office can’t seek the maximum sentence against every defendant. […]

    Patterico’s Pontifications » Steve Lopez Contradicts Pattt Morrison on First-Time Drug Dealers Going to Prison (421107)


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