What would happen if the succession law were to be applied retroactively?

Is the California Three Strike Law just?

• One often hears about cases where the three strike law was applied to minor offenses and resulted in the offender being incarcerated for an amount of time disproportionate to the crime committed. How often does this happen, and is there such a thing as mitigating circumstances when applying this law?

• Answer:

  Three Strikes laws are shortsighted and contribute to more problems in our legal system instead. Our laws and our choices about incarceration need to be based on intelligent, informed assessments of the crimes committed and the people involved. It's absurd that we consistently lock up far more nonviolent offenders than violent ones, and that we in fact are consistently releasing violent and even predatory offenders in order to make more room for nonviolent offenders. One glaring point that helps demonstrate the flaws in Three Strikes laws, is that very often there is an intentional choice to charge someone with a more serious offense specifically to make Three Strikes laws apply, whereas in other cases a lot of people might plead their more serious cases down and avoid falling under Three Strikes laws for a longer period of time. The result will be the cliched but very real examples of someone going to prison for a longer period of time for eating a piece of pizza off another person's table at a pizza joint, than someone who rapes or murders someone. Literally, that can and does happen under Three Strikes laws. If we had rational sentencing for offenses in general to begin with, so that we weren't giving longer sentences for drug crimes than (for one glaring example) for violent sex crimes against children, and if we instead focused on locking up violent offenders for longer periods of time and focused on rehabilitation and education for nonviolent offenders, we could solve many problems of repeat offenses and dramatically reduce our prison population. Three Strikes laws are an example of one of the most typical problems in this nation's broad social behavior -- laziness in dealing with problems, and a desire to just apply some reactionary simplistic response in order to claim to have taken some action, rather than doing the serious, harder work of thinking about the issue and applying a rational, long-term solution. We do this all of the time, getting angry about something and making a stupidly gross overreactive choice and then pretending we solved the problem and can now promptly ignore it and just complain and get angry without having to further consider and work on the real, more nuanced, harder issues involved. Drug law reform that eliminates the obviously failed and morally bankrupt prohibitions against marijuana and other drugs; reforming and tightening laws against violent offenses such as rape (seriously, if any crime beside premeditated homicide needs to result in a life sentence, it's sex crimes); and dealing with basic economic and educational inequalities that we all know contribute directly to crime, are just a few examples of the ways we need to more reasonably change our approaches to law enforcement and incarceration. Allowing jails and prisons to be treated as some sort of industry to address job creation is absurd and speaks to a moral failing of our approach not only to crime and justice, but to economic stimulus as well. But that's part of the difficulty in getting everyone to be honest about these issues and look at them seriously and intelligently -- vested interests abound, including the private prison industry, companies that supply services to jails and prisons, the fact local police departments get large amounts of extra money and resources and militarized weapons and training due to continued drug prohibition, and so on. That these are all ultimately false "benefits" and that we lose far more as a society as a whole is lost amid the propaganda from the small select groups who benefit from keeping things the way they are in our justice system and who in fact promote even harsher, less intelligence-based choices and regulations and laws. Whomever benefits from California's Three Strikes law, for example, their financial interests pale in comparison to the fact marijuana alone generates more than $100 million in sales tax alone from dispensaries for approved medical patients -- when you add business licenses, personal income taxes, payroll taxes, and other revenue, California is benefiting to the tune of more than a quarter of a billion dollars every year just from medical marijuana dispensaries. That's not to mention the role in job creation played by the hundreds of dispensaries, too. Imagine if this was expanded in a full tax-and-regulate program for marijuana. Then imagine if we just rationally took all recreational drugs, put them into private business models, applied FDA standards for purity levels and preventing tainting with other drugs etc, and then sold them in limited specialty shops that only let adults come in, that required ID, that were heavily taxed and regulated like tobacco and alcohol, and then we treated addiction as a health care problem instead of a criminal justice problem. We'd remove most of the secondary problems associated with illicit drug use, we'd be able to treat addiction a lot easier and with better results, we'd reduce access to drugs for young people and kids, and we'd generate BILLIONS of dollars in revenue and create a large number of jobs, and we'd massively reduce state and federal expenditures for crime and punishment. Compare that to whatever benefits people mistakenly believe we get from Three Strikes laws. If drugs were taken off the table as an issue, you'd in fact remove most of the crimes that are part of Three Strikes sentencing. We'd cut our jail and prison populations by more than half. Meaning we'd be able to sentence violent criminals to much longer sentences, allowing judges to listen to the details of the crimes and consider the defendant's behavior and attitude and background and other factors, and then make a reasoned determination about sentencing. It's not exactly the same thing in every respect, but Three Strikes fits into the broader category of sentencing requirements like mandatory minimum sentencing, which is something I've been mostly against for a very long time. I say "mostly" because I do in fact think that certain violent crimes with specific kinds of context should result in sentences that ensure the offender cannot threaten the victim or society any more -- sexual assaults, for example, are crimes where by definition there's no "defense" to explain and justify having committed the crime, as compared to a beating or physical assault where a person might claim self-defense or having been overcome with rage against what they thought was another person who did something that might itself be considered a crime (if you see someone beat their child, you might be enraged to the point of punching that parent, as an extreme example). I think that even with murder and manslaughter cases, we can all think of hypotheticals and real-life examples where it would be reasonable to say that a harsher sentence might not be the best choice and where there are mitigating circumstances; but with sexual assaults and similar sex crimes, there is no real mitigating circumstance -- if someone committed a rape or molestation, then they need to be punished very severely and locked up for a long time. But anyway, for MOST crimes, that kind of narrow context doesn't apply, and I think mandatory minimums should be abolished. A lot of -- probably most of -- the points against mandatory minimum sentences tend to generally apply to Three Strikes laws as well, so it's worth considering some quotes from experts and other with experience related to mandatory minimum sentencing laws. Here are a few from the Web site of the excellent organization http://Families%20Against%20Mandatory%20Minimums... Academics   Charles Ogletree, Harvard professor “The criminal justice system is devouring our resources; putting  people who have committed low-level offenses, who are perfectly capable  of being rehabilitated, away for lengthy sentences and turning them into  hardened criminals; destroying families and communities; and callously  throwing away lives. We cannot afford to continue to invest in such a  system.” - http://judiciary.senate.gov/hearings/testimony.cfm?id=3906&wit_id=8063 submitted to the Subcommittee on Crime and Drugs, U.S. Senate Committee on the Judiciary, June 11, 2009.    Roger K. Warren, National Center for State Courts "State sentencing statutes, rules, and guidelines should provide  sufficient flexibility so that sentencing judges can craft orders  designed to reduce the risk of recidivism in appropriate cases, and  should avoid overly broad, strict, or arbitrary sentencing mandates that  interfere with more appropriate sentencing options. Principal examples  of interfering mandates are provisions that prohibit judges from  granting probation, require disproportionately long periods of incarceration,  or set mandatory minimum terms of imprisonment where neither the  seriousness of the particular offense nor the risk factors presented by  the particular offender warrant such restrictions." - Roger K. Warren, President Emeritus, National Center for State Courts, “http://www.pewcenteronthestates.org/uploadedFiles/Final_EBS_Brief.pdf,” Pew Center on the States, Public Safety Policy Brief (May 2009)   Conservatives   Grover Norquist “The benefits, if any, of mandatory minimum sentences do not  justify this burden to taxpayers. Illegal drug use rates are relatively  stable, not shrinking. It appears that mandatory minimums have become a  sort of poor man’s Prohibition: a grossly simplistic and ineffectual  government response to a problem that has been around longer than our  government itself.” - Grover Norquist, President, Americans for Tax Reform, http://judiciary.house.gov/hearings/pdf/Norquist090714.pdf submitted to the Subcommittee on Crime, Terrorism, and Homeland Security, House Committee on the Judiciary, July 14, 2009. David A. Keene “[M]y opposition to mandatory minimums . . .  is rooted in  conservative principles; namely, reverence for the Constitution and  contempt for government action that ignores the differences among  individuals. . . . James Madison, for one, believed that a clear  separation of powers was more vital to protecting freedom than the Bill  of Rights. Yet mandatory minimums undermine this important protector of  liberty by allowing the legislature to steal jurisdiction over  sentencing, which has historically been a judicial function. The attempt  by legislatures and the Congress to address perceived problems in the  justice system by transferring power from judges to prosecutors and the  executive branch violate these principles and have, in the process,  given prosecutors unreviewable authority to influence sentences through  their charging decisions and plea bargaining power.” - David A. Keene, Chairman, American Conservative Union, http://judiciary.house.gov/hearings/printers/111th/111-48_51013.PDF submitted to the Subcommittee on Crime, Terrorism and Homeland Security  of the U.S. House of Representatives Committee on the Judiciary (July  14, 2009) Pat Nolan, Justice Fellowship “When judges mete out sentences for certain crimes, mandatory  minimum laws prohibit them from weighing the relative harm caused by the  crime or the relative culpability of the defendant. Mandatory minimum  sentences are “one size fits all”. These laws offend the very notion of  justice, which requires that the severity of the punishment match the  harm done by an individual criminal. In Exodus 21:24, we are told that  our judgments should exact an “eye for eye, tooth for tooth.” This verse  limits punishment by requiring that offenders pay back “value for  value.” The Bible calls for proportionality in punishment, and stresses  that penalties should match the injury.” - Pat Nolan, President, Justice Fellowship, “http://www.justicefellowship.org/key-issues/issues-in-criminal-justice-reform/issue-2/823”   Ed Meese, former U.S. Attorney General for President Reagan “I think mandatory minimum sentences for drug offenders ought to be  reviewed. We have to see who has been incarcerated and what has come  from it.” - Ed Meese, former U.S. Attorney General under President  Reagan and Senior Fellow at the Heritage Foundation, quoted in Texas  Public Policy Foundation, “http://www.texaspolicy.com/pdf/2010-01-PP02-conservativesaresaying-ml.pdf (Jan. 2010)   Pat Robertson, Christian Broadcasting Network "[O]ur government [should] revisit the severity of the existing  laws because mandatory drug sentences do harm to many young people who  go to prison and come out as hardened criminals. ... [T]hese mandatory  sentences needlessly cost our government millions of dollars when there  are better approaches available." - Thoughts of Pat Robertson, Founder and Chairman of the  Christian Broadcasting Network, as delivered by CBN spokesman Chris  Roslan on Dec. 23, 2010   Drug czars General Barry McCaffrey, U.S. drug czar for President Clinton "I am unalterably opposed to the system of mandatory minimums.  I think we need to give this authority back to the judges.”  â€“ Barry McCaffrey, former U.S. drug czar in the Clinton administration   Elected officials   U.S. Representative Bob Inglis (R-S.C.) “Mandatory minimums wreak havoc on a logical system of sentencing  guidelines. Mandatory minimums turn today’s hot political rhetoric into  the nightmares of many tomorrows for judges and families.” - Rep. Bob Inglis (R-S.C.), http://www.famm.org/NewsandInformation/PressReleases/CorrectingCoursereportandpollrelease.aspx, “New Poll: Americans Oppose Mandatory Minimums,Will Vote for Candidates Who Feel the Same,” (Sept. 24, 2008) U.S. Representative Bobby Scott (D-Va.) “Mandatory minimum sentences have been studied extensively and have  been shown to be ineffective in preventing crime. They have been  effective in distorting the sentencing process. They discriminate  against minorities in their application, and they have been shown to  waste the taxpayers’ money.” - Rep. Bobby Scott, http://judiciary.house.gov/hearings/printers/110th/36343.PDF before the Subcommittee on Crime, Terrorism, and Homeland Security, House Committee on the Judiciary, June 26th, 2007. U.S. Representative Henry Hyde (R-Ill.),1994 “It doesn’t make sense to put away everybody, no matter how  peripherally involved in drug dealing, for five years or 10 years.  Not  only are such sentences morally troublesome, they threaten to sap the  willpower we must maintain to deal with the true threats to society.” U.S. Rep. Frank Wolf (R-Va.), 1998 “I do…understand that some first-time, nonviolent offenders have been  given mandatory minimum sentences, and I would consider supporting  legislation to give judges flexibility in such cases.” Presidents of the United States President George W. Bush “I think a lot of people are coming to the realization that maybe  long minimum sentences for first-time users may not be the best way to  occupy jail space and/or heal people from their disease.  And I’m  willing to look at that.” – George W. Bush on CNN (Inside Politics), January 18,  2001, three days before his inauguration as President of the United  States.   President Bill Clinton “I think the sentences in many cases are too long for nonviolent  offenders… . Most judges think we should [do away with mandatory minimum  sentences].  I certainly think they should be reexamined.  And the  disparities are unconscionable between crack and powdered cocaine….Our  imprisonment policies are counterproductive.” – President Bill Clinton, Rolling Stone, December 28, 2000   President George H.W. Bush “[Eliminating mandatory minimums] will result in better justice and more appropriate sentences.” – President (then Representative) George H.W. Bush, in 1970 speaking about a successful bill to eliminate mandatory minimums.   U.S. Supreme Court justices   Justice Anthony Kennedy “I'm against mandatory sentences.  They take away judicial discretion  to serve the four goals of sentencing.  American sentences are eight  times longer than their equivalents in Europe.  California's 3-strikes  law emanated from the electorate, and the sponsor of the initiative was  the correctional officers association—and that is sick.  California has  185,000 people in prison, and the cost is astounding.” - Justice Anthony Kennedy, http://lacbablog.typepad.com/enbanc/2010/02/justice-anthony-kennedy-at-pepperdine.html, Pepperdine University, February 3, 2010.   "If you were asked to design a penal system that would win the  prize for the worst system, the one you’ve got would at least be  runner-up... If cost is a way to activate human compassion, I’ll take  it. We are squandering our resources and spending them in the wrong  way.” - Justice Anthony Kennedy, http://www.newsmax.com/Newsfront/anthony-kennedy-elena-kagan/2010/05/14/id/359126to the Forum Club of Palm Beaches and the Palm Beach County Bar Association, West Palm Beach, Fla., May 14, 2010.   “I can accept neither the necessity nor the wisdom of federal  mandatory minimum sentences.  In too many cases mandatory minimum  sentences are unwise and unjust. . .The legislative branch has the  obligation to determine whether a policy is wise.  It is a grave mistake  to retain a policy just because a court finds it constitutional.   Courts may conclude the legislature is permitted to choose long  sentences, but that does not mean long sentences are wise or just…A  court decision does not excuse the political branches or the public from  the responsibility for unjust laws.”   – Justice Anthony Kennedy, U.S. Supreme Court justice at annual meeting of the American Bar Association, 2003   “Mandatory minimums are harsh and in may cases unjust.”  If the  hypothetical example of an 18-year-old gets caught growing marijuana in  the woods and happens to have a hunting rifle in his truck when  arrested, he could face a mandatory minimum sentence of 15 years.  Now  he shouldn’t be doing that, (but) an 18-yearold doesn’t know how long 15  years is.” – Anthony Kennedy, U.S. Supreme Court justice, in Congressional testimony, 2003   Chief Justice William Rehnquist “These mandatory minimum sentences are perhaps a good example of  the law of unintended consequences. There is a respectable body of  opinion which believes that these mandatory minimums impose unduly harsh  punishment for first-time offenders…mandatory minimums have also led to  an inordinate increase in the federal prison population and will  require huge expenditures to build new prison space...they frustrate the  careful calibration of sentences, from one end of the spectrum to the  other, which the sentencing guidelines were intended to accomplish.” - Chief Justice William Rehnquist, "https://www.cato.org/pubs/pas/pa-208.html," in U.S. Sentencing Commission, Drugs and Violence, 2005.   "Our resources are misspent, our punishments too severe, our sentences too long." – William H. Rehnquist, former chief justice of U.S. Supreme Court, at the 2002 annual meeting of the American Bar Association   Justice Stephen G. Breyer [More statutes containing mandatory minimum sentences are] “not going  to advance the cause of law enforcement in my opinion and it’s going to  set back the course of fairness in sentencing. . . . There has to be  room for the unusual or the exceptional case.” – Stephen G. Breyer, associate Supreme Court Justice, at a John F. Kennedy Library and Museum, 2003   Federal judiciary   Honorable Judge Julie E. Carnes “Unjust mandatory minimums  . . . have a corrosive effect on our  broader society. To function successfully, our judicial system must have  the respect of the public. The robotic imposition of sentences that are  viewed as unfair or irrational greatly undermines that respect. . .  [S]ome of these statutes do not produce merely questionable results;  instead, a few produce truly bizarre outcomes. - Honorable Judge Julie E. Carnes, Chair of the Criminal Law Committee of the Judicial Conference of the United States, http://judiciary.house.gov/hearings/pdf/Carnes090714.pdf before the Subcommittee on Crime, Terrorism and Homeland Security of  the U.S. House of Representatives Committee on the Judiciary, July 14,  2009.   Professor David Zlotnick, Roger Williams School of Law, Rhode Island,  created a set of case studies of federal sentencings that captures  judicial dissatisfaction with the sentencing laws in effect during the  mandatory Guidelines era . After corresponding with hundreds of inmates,  he gathered sufficient documents to write detailed profiles of forty  Republican appointees and at least one case in which each of these  judges stated their disagreement with the sentence required by law from  the bench. Only cases where reliable documents, such as the Pre-Sentence  Investigation Report (“PSI”) and the Sentencing Transcript, were  available were considered. http://faculty.rwu.edu/dzlotnick/federalsentencingstudy.html U.S. District Judge Paul Cassell “I express no view on mandatory minimum sentencing schemes in  general.  But …one particular feature of the federal scheme – the ‘count  stacking’ feature of § 924(c) for first-time offenders – has lead to an  unjust result in this case and will lead to unjust results in other  cases….The 55-year sentence mandated by § 924(c) in this case appears to  unjust, cruel and irrational.” – U.S. District Judge Paul Cassell in sentencing first-time  offender Weldon Angelos to 55 years in prison, 2004.  Nominated by  President George W. Bush, 2001.   Honorable Robert Cindrich "When the law provides a result that is repugnant, we must still  follow the law. And you can only do that so many times before you start  to wonder, 'How many more times am I going to put my name on this  sentence that I don't believe in?'” – Robert Cindrich, who resigned from the federal bench,  partially in protest of federal sentencing guidelines, 2004.  Nominated  by President William J. Clinton, 1994.   Honorable John S. Martin Jr. For most of our history, our system of justice operated on the  premise that justice in sentencing is best achieved by having a sentence  imposed by a judge who, fully informed about the offense and the  offender, has discretion to impose a sentence within the statutory  limits. Although most judges and legal scholars recognize the need for  discretion in sentencing, Congress has continually tried to limit it,  initially through the adoption of mandatory-minimum sentencing laws. . .  . For a judge to be deprived of the ability to consider all of the  factors that go into formulating a just sentence is completely at odds  with the sentencing philosophy that has been a hallmark of the American  system of justice. – John S. Martin Jr., federal district judge in Manhattan,  retired in protest of restrictions on federal judicial discretion,  2003.  Nominated by President George H.W. Bush, 1990.   Honorable J. Spencer Letts “Statutory mandatory minimum sentences create injustice because the  sentence is determined without looking at the particular defendant…. It  can make no difference whether he is a lifetime criminal or a first-time  offender. Indeed, under this sledgehammer approach, it could make no  difference if the day before making this one slip in an otherwise  unblemished life the defendant had rescued 15 children from a burning  building or had won the Congressional Medal of Honor while defending his  country.” – J. Spencer Letts, U.S. district judge, Central District of  California, senior status 2000.  Nominated by President Ronald Reagan,  1985. Honorable Leon Higginbotham “We must remember we are not widgets or robots, but human beings.  Defendants should be sentenced within the spectrum of what most judges  would consider fair and reasonable.” —Leon Higginbotham, judge, 3rd Circuit Court of Appeals.  Nominated to the circuit court by President Jimmy Carter, 1977.   Honorable David Doty “I think that a lot of people do not understand what is going on  until, all of a sudden, they are caught up in the system; and they find  out that people have been mouthing all kinds of slogans, and when the  slogans all come down to rest, they sometimes come to rest very hard on  the shoulders of the individual.” —David Doty, U.S. district judge, Minnesota, senior status 1998.  Nominated by President Ronald Reagan, 1987.   Honorable Paul A. Magnuson “…I continue to believe that sentence of 10 years’ imprisonment under  the circumstances of this case is unconscionable and patently  unjust….[the defendant] will be sacrificed on the altar of Congress’  obsession with punishing crimes involving narcotics. This obsession is,  in part, understandable, for narcotics pose a serious threat to the  welfare of this country and its citizens. However, at the same time,  mandatory minimum sentences – almost by definition – prevent the Court  from passing judgment in a manner properly tailored to a defendant’s  particular circumstances. —Paul A. Magnuson, U.S. district judge, Minnesota, senior status 2002.  Nominated by Ronald Reagan, 1981. Honorable Joyce Hens Green “As a consequence of the mandatory sentences, we (judges) know that  justice is not always done…[Y]ou cannot dispense equal justice by  playing a numbers game. Judgment and discretion and common sense are  essential.” —Joyce Hens Green, U.S. district judge, District of Columbia, senior status 1995.  Nominated by Jimmy Carter 1979.   Honorable Stanley Sporkin “We need to deal with the drug problem in a much more discretionary,  compassionate way. We need treatment, not just punishment and  imprisonment.” —Stanley Sporkin, U.S. district judge, District of Columbia, retired 2000.  Nominated by President Ronald Reagan 1985 Other notables Martha Stewart “. . .So many of the women here in Alderson will never have the joy  and wellbeing that you and I experience. Many of them have been here for  years -- devoid of care, devoid of love, devoid of family. I beseech  you all to think about these women -- to encourage the American people  to ask for reforms, both in sentencing guidelines, in length of  incarceration for nonviolent first-time offenders, and for those  involved in drug-taking. They would be much better served in a true  rehabilitation center than in prison where there is no real help, no  real programs to rehabilitate, no programs to educate, no way to be  prepared for life ‘out there’ where each person will ultimately find  herself, many with no skills and no preparation for living.” – Martha Stewart, December 2004