BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 426 (Galgiani)
As Amended April 26, 2007
Hearing date: July 10, 2007
Penal Code
JM:mc
SERIOUS AND VIOLENT FELONIES :
THREE STRIKES, FIVE-YEAR ENHANCEMENTS AND OTHER CONSEQUENCES
HISTORY
Source: Crime Victims United of California
Prior Legislation: AB 1256 (Bermudez) - 2006, failed passage in
Senate Public Safety
Support: Conference of Delegates of California Bar; Sheriff of
San Bernardino County; Los Angeles District Attorney;
California District Attorneys Association
Opposition:California Attorneys for Criminal Justice; American
Civil Liberties Union; California School Employees
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUES
SHOULD THE CRIMES OF HUMAN TRAFFICKING (PEN. CODE 236.1) AND
SOLICITATION OF MURDER BE ADDED TO THE LIST OF SERIOUS FELONIES
IN PENAL CODE SECTION 1192.7, FOR PURPOSES OF THE THREE STRIKES
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LAW, PLEA BARGAINING LIMITS, EMPLOYMENT RESTRICTIONS AND OTHER
CONSEQUENCES, AS SPECIFIED?
(CONTINUED)
SHOULD THE CRIME OF SOLICITATION OF MURDER (PEN. CODE 653f, SUBD.
(b)) BE ADDED TO THE LIST OF "VIOLENT FELONIES" IN PENAL CODE
SECTION 667.5, FOR PURPOSES OF THE THREE STRIKES LAW, PRISON
SENTENCE CREDIT LIMITS AND OTHER CONSEQUENCES, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) add solicitation of murder
and human trafficking to the list of "serious felonies," and 2)
add solicitation of murder to the list of "violent" felonies.
Existing law provides that a defendant, who is convicted of any
current felony, with prior convictions of two or more "violent"
or "serious" felonies, must receive a life sentence with a
minimum term of 25 years. (Pen. Code 667, subds. (a) and
(d)(2)(i); Pen. Code 1170.12, subd. (c)(2)(A).)<1>
Existing law further provides that where a defendant is
convicted of any felony with a prior conviction for a single
serious or violent felony, the sentence imposed must be twice
the term otherwise provided as punishment. (Pen. Code 667,
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<1> The minimum term for any defendant with two prior serious
or violent offenses must be at least 25 years. In many cases,
multiple terms of 25-years-to-life must be imposed - one for
each count (separately charged offense) which does not arise
from the same operative facts in the current case. Where
multiple convictions do arise from separate operative facts,
the court has discretion to impose consecutive or concurrent
terms. (Penal Code 667(c)(6).) According to a complex
formula, in a rare case, a different minimum term may be
imposed if it would result in a longer sentence than 25 years.
(Penal Code 667(d)(2)(A)(i-iii).)
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subd. (d)(1) and Pen. Code 1170.12, subd. (c)(1).)
Existing law further provides that affected defendants may not
receive probation, there is no limitation on the aggregate term,
sentencing credits are limited to 20% of the term (instead of
the usual 50%), and any additional convictions must be imposed
consecutively. (Pen. Code 667, subd. (c) and Pen. Code
1170.12, subd. (a).)
Existing law provides that a defendant sentenced to a life term
under Three Strikes can earn no sentencing credits to reduce the
minimum term. (In re Cervera (2001) 24 Cal.4th 1073.)
Existing Three Strikes law , unlike five-year serious felony
enhancement provisions, does not require that prior qualifying
convictions arise in separate cases, and qualifying prior
"strike" convictions need not arise from separate transactions
that can otherwise not be separately punished. (People v.
Fuhrman (1997) 16 Cal.4th 830; People v. Benson (1998) 18
Cal.4th 24, 30; Penal Code 667(a).)
Existing law provides that a juvenile adjudication (no jury
trial) of a sixteen-year old must be counted as a prior "strike"
if the offense otherwise qualifies as an adult strike or would
establish presumptive unfitness for juvenile court under Welfare
and Institutions Code Section 707(b), and the minor was declared
to be a ward of juvenile court for commission of an offense
listed in Welfare and Institutions Code Section 707, subdivision
(b). (Pen. Code 667, subd. (d)(3) and Pen. Code 1170.12,
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subd. (b)(3).)<2>
Existing law includes the following additional mandatory Three
Strikes provisions:
A person sentenced under "Three Strikes" may not be committed
to any facility other than prison.
"Three Strikes" prohibits plea-bargaining, although a plea
bargain between the prosecutor and the defendant that was
accepted by the sentencing court would not be challenged,
regardless of whether the bargain violates the terms of the
Three Strikes law.
"Three Strikes" has no "washout" period - any prior serious or
violent felony shall be charged regardless of when it
occurred. However, Proposition 36 of the November 2000
election creates washout for defendants charged with
non-violent drug possession who have been free of crime or
custody for 5 years.
Under "Three Strikes," the prosecuting attorney must plead and
prove each prior felony conviction, although there is no
practical way to enforce this provision.
"Three Strikes" may only be amended by a two-thirds vote of
the Legislature or a ballot measure approved by the
electorate.
As originally enacted in 1994, the Three Strikes law defined
qualifying prior as those felonies listed as "serious" or
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<2> There is substantial overlap among the lists of violent
felonies, serious felonies and crimes of presumptive juvenile
unfitness. However, a few crimes, such as residential burglary
do not constitute unfitness crimes. It must be noted that the
California Court of Appeal, 6th Appellate District has recently
held that a contested juvenile matter (tried to a judge) cannot
constitute a prior strike because the facts of the matter were
not found by a jury, thus violating the 6th Amendment to the
U.S. Constitution. (People v. Nguyen H028798.) This case will
very likely be reviewed by the California Supreme Court.
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"violent" on June 30, 1993. (As noted in this document,
qualifying prior strikes subject a defendant to a doubled term or
life sentence upon conviction of any felony in the current case.)
Proposition 21 of the March 2000 primary election added to the
lists of serious and violent felonies and defined qualifying prior
strikes as felony listed as serious or violent felonies as of
March 8, 2000 - the date that the Proposition 21 took effect. For
all practical purposes, all "violent" felonies are "serious."
Thus the eligible "strikes" are aptly demonstrated by the serious
felony list, with additional notations for violent offenses.
Serious and violent felonies, as defined by Penal Code Section
667.5(b) and Section 1192.7, as they existed after March 8, 2000,
include the following completed crimes and attempts:
Murder or voluntary manslaughter (violent)
Mayhem (serious, and violent if by force or threat of
retaliation)
Rape (violent)
Sodomy by force, violence, duress, menace, or fear of
bodily injury (violent)
Oral copulation by force, violence, duress, menace or
fear of bodily injury (violent)
Lewd act with child under fourteen years of age
(violent) and continuous sexual abuse of a child (violent)
Any felony punishable by death or life imprisonment
(violent)
Any felony in which defendant inflicts great bodily
injury on defendant or personally uses a firearm (violent)
Attempted murder (violent)
Assault with intent to commit a sex crime, robbery or
mayhem (violent)
Assault with a deadly weapon on peace officer (serious)
Assault by life prisoner on a non-inmate (serious)
Assault with a deadly weapon by inmate (serious)
Arson (serious, and violent if structure was inhabited)
Exploding a destructive device with intent to injure
(serious)
Explosion causing great bodily injury or mayhem
(violent)
Explosion with intent to murder (violent)
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Burglary of inhabited dwelling (serious, and violent if
another person other than an accomplice is present)
Robbery, bank robbery or carjacking (violent)
Kidnapping (violent)
Inmate taking a hostage
Attempted crime carrying a life sentence or death
penalty
Any felony where defendant personally uses a dangerous
or deadly weapon
Sale or furnishing heroin, cocaine, PCP, or
methamphetamine to a minor
Forcible foreign object rape (violent in most cases)
Grand theft involving a firearm
Any violation of 10-20-life firearm use and discharge
enhancement law (violent)
Any gang-related felony (violent if crime involves
extortion or witness intimidation)
Existing law provides that a person convicted of a violent
felony may reduce his or her prison sentence by no more than 15%
through work and education sentence credits. (Pen. Code
2933.1.)
Existing law provides that where a defendant has been charged
with a serious felony, plea bargaining is prohibited unless the
prosecutor informs the court that there may be insufficient
evidence to prove the charge or the plea agreement would not
result in a substantial change in sentence. (Pen. Code
1192.7.)
Existing law includes numerous provisions that restrict or limit
the ability of persons convicted of serious or violent felonies
to receive specified benefits or to be employed in certain
capacities. Numerous other consequences flow from serious or
violent felony convictions.
Existing law defines human trafficking using the deprivation of
the victim's liberty for purposes of pimping, pandering and the
like, extortion, forced labor or forced services. Human
trafficking is a felony punishable by a prison term of 3, 4, or
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5 years and a fine of up to $10,000. Where the victim is a
minor, the prison term is 4, 6, or 8 years. Deprivation of
liberty is defined as "substantial restriction on another's
liberty" accomplished through fraud, deceit, coercion, violence,
duress, menace, or threat or injury. (Pen. Code 236.1.)
Existing law defines solicitation of murder as the soliciting of
another person to commit the crime of murder (killing of a human
being with malice aforethought), with the specific intent that
the murder be committed. Solicitation of murder is a felony
punishable by a prison term of 3, 6, or 9 years and a fine of up
to $10,000. (Pen. Code 653f.)
This bill adds human trafficking (Pen. Code 236.1) to the list
of serious felonies, thus making this crime a qualifying offense
under the Three Strikes law, limiting plea bargaining and
numerous other consequences, such as employment limitations, et
cetera.
This bill adds solicitation of murder (Pen. Code 653f) to the
lists of serious and violent felonies, thus making this crime a
qualifying offense under the Three Strikes law, limiting prison
work-conduct credits to 15% for an inmate convicted of this
crime, limiting plea bargaining and numerous other consequences,
such as employment prohibitions, et cetera.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA")
IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<3> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
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<3> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
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many counties are so overcrowded they do not accept misdemeanor
bookings in any form . . ."<4> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<5>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
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<4> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
<5> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<6>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
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<6> Analysis 2007-08 Budget Bill, supra, fn. 1.
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federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<7>
This bill appears to aggravate the prison and jail overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
AB 426 (Galgiani) adds the crime of human trafficking
to the list of "serious" felonies and the crime of
solicitation of murder to both the lists of "serious"
and "violent" felonies.
Solicitation of murder is a heinous crime, as heinous
as murder itself. It is not a crime of passion; it
requires careful planning and malice. Current
California law does not consider solicitation of
murder a serious or violent offense. As such, the
individual charged with solicitation of murder is not
subjected to the same stiff penalty as that which the
individual guilty of the murder crime is subjected.
By closing the loophole that allows the individual
guilty of solicitation to avoid serious punishment and
by creating more stringent penalties for such
solicitation, this bill will help deter individuals
from committing this crime and will give district
attorneys more discretion to adequately punish
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<7> Primer, supra, fn. 4.
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offenders.
As important is the problem of human trafficking.
Human trafficking victims are subjected to a multitude
of heinous circumstances from working in sweatshops to
being pushed in to the sex trade. Trafficking victims
have few economic or legal options and they are often
controlled by violence, threats of violence, threats
of being left destitute or of immigration
consequences. Prosecutors need authority to bring
harsher charges against people who participate at any
stage of trafficking schemes, including financing the
operation, arranging the transportation of victims and
recruiting the victims.
The inclusion of these offenses under the definitions
of serious and violent felonies will ensure that they
are prosecuted according to their seriousness,
providing victims with a greater sense of justice that
their victimization is taken seriously and prosecuted
to the fullest extent of the law.
2. Human Trafficking: Obtaining Labor, Services, Sexual Acts
Through Deprivation of the Victim's Liberty
The crime of human trafficking was specifically defined in
California law by AB 22 (Lieber), Chapter 240, Statutes 2005.
The essence of human trafficking is the deprivation of the
victim's liberty with the intent of obtaining sexual services,
forced labor, et cetera, from the victim. Many acts that could
constitute human trafficking were crimes under California law
prior to the enactment of AB 22. For example, human trafficking
includes pimping and pandering involving minors. Such crimes
were generally felonies under the law prior to enactment of
Penal Code section 236.1.
Arguably, human trafficking can involve a wide range or criminal
behavior, from the use of children as sex slaves to obtaining
relatively limited services or labor from a person, such as
paying him or her less than the value of certain work because of
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fears of deportation. The statute does require that the
deprivation of liberty to obtain services or labor be
"substantial and sustained." Determining whether that element
has been met would be a question for the jury and would depend
in substantial measure on the age, experience and status of the
victim.
Since the enactment of the human trafficking statute in 2005,
Committee staff has received reports that victims of the crime
are often very reluctant to cooperate with prosecutions.
Victims of human trafficking may be immigrants who have learned
to be fearful of government authorities in their countries of
origin and may be fearful of deportation from the United States.
Federal law does include some residency protections for human
trafficking victims. However, because of the reluctance of
victims to cooperate with police and prosecutors, it may be
difficult to fully understand how human trafficking is done in
California.
SHOULD ANY FORM OF THE CRIME OF HUMAN TRAFFICKING BE DEFINED AS
A SERIOUS FELONY, MAKING THE OFFENSE A QUALIFYING FELONY UNDER
THE THREE STRIKES LAW, SUBJECTING DEFENDANTS TO 5-YEAR SENTENCE
ENHANCEMENTS FOR PRIOR CONVICTIONS, LIMITING PLEA BARGAINING AND
NUMEROUS OTHER CONSEQUENCES?
3. Solicitation of Murder
The crime of solicitation of murder includes the following
elements: 1) The defendant solicited another person to commit
or join in the commission of murder, which is the unlawful
killing of a human being with malice aforethought; 2) the
defendant specifically intended that the murder be committed;
and 3) the person solicited actually received the communication
containing the solicitation. (People v. Bottger (1983) 142
Cal.App.3d 974, 981; Cal. Jury Instr. Crim., 441.)
Evidence to prove the crime must involve the testimony of at
least one witness and sufficient corroborating evidence, or the
testimony of two witnesses. Corroborating evidence is evidence
that is independent of that provided by the witness.
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Corroborating evidence must tend to connect the defendant with
the commission of the crime. The defendant is guilty of
solicitation if the elements set out above are established,
regardless of whether the murder was completed or even started.
The person solicited does not need to agree to commit the crime.
(Ibid.)
As solicitation of murder requires proof that the defendant
specifically intended that the crime be committed, the crime is
arguably very serious. One could thus argue that solicitation
of murder is equivalent in seriousness to many of the crimes on
the violent and serious felony lists.
SHOULD SOLICITATION OF MURDER BE ADDED TO THE LIST OF SERIOUS
AND VIOLENT FELONIES, WITH ATTENDANT THREE STRIKES, PRISON
SENTENCING CREDIT LIMITS, EMPLOYMENT AND BENEFIT LIMITATIONS AND
OTHER CONSEQUENCES?
4. Judicial Discretion to Dismiss Prior Strike Allegation is
Limited; Judicial Discretion to Deem an Alternate
Felony-Misdemeanor to be a Misdemeanor in a Three Strikes Case
Judicial Discretion Concerning Prior Strikes
The California Supreme Court held in People v. Superior Court
(Romero), (1996) 13 Cal.4th 497, that for purposes of "Three
Strikes," a court may on its own motion dismiss a prior felony
conviction allegation in the furtherance of justice. However,
the court's discretion to dismiss prior strike allegations is
quite limited. The trial court "must proceed in strict
compliance with Section 1385(a) and is subject to review for
abuse." The court may not dismiss a prior solely for judicial
convenience or because of court congestion or a plea agreement,
or because of personal disagreement with the effects of the
Three Strikes law. Courts must focus on the nature of the
present offenses, the defendant's background and other
"individualized considerations."
The court in People v. Williams (1998) 17 Cal.4th 148
essentially held that a trial court abuses its discretion in
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dismissing a prior strike if the defendant's criminality has
been unbroken. This is true even where the defendant's current
conviction is not for a serious or violent felony. A defendant
who seeks a dismissal of a prior "strike" must establish that he
or she should be treated as though he or she falls outside the
scope of the Three Strikes as written. (Id, at 161.)
5. Power and Discretion of Prosecutors in Three Strikes
The Three Strikes law grants great power to prosecutors. For
example, a defendant who has been previously convicted of two
serious felonies (residential burglary for example) who is
charged with an alternate felony-misdemeanor (petty theft with a
prior conviction for example) faces punishment that ranges from
a maximum jail term of six months to life in prison, depending
on the charging and disposition decisions of the prosecutor.
A white paper published by the California District Attorneys
Association during the campaign on Proposition 66 in 2004 stated
that prosecutors must file every available prior strike and that
plea bargaining is prohibited. While this is certainly a
correct description of the written provisions of the Three
Strikes law, it may be of questionable value or accuracy in
describing actual practice of many prosecutors.
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The well-known practice of at least one district attorney to not
file prior strike allegations in most cases where the defendant
is charged with a non-serious felony in the current charges
belies the assertion that all prior strike allegations are
filed. Further, if plea bargaining were never done in Three
Strikes cases - thus eliminating a defendant's agreement to
plead guilty from the circumstances considered by the prosecutor
in dismissing a prior strike allegation - there would be limited
incentives for defendants to plead guilty.
In a case where a defendant faces a life-term in prison, it is
highly unlikely that he or she would trust his or her fate to a
prosecutor's spirit of justice or beneficence as to whether one
of the prior strike allegations will be dismissed. In the
absence of a clear plea bargaining, or at least an unambiguous
indicated sentence by the court, a defendant in a life-term case
will choose to go to trial, as he or she has nothing to lose and
much to gain by doing so.
Prosecutors face great pressure to properly handle a large
volume of cases with limited resources. A true and strict
prohibition on plea bargaining in Three Strikes cases would be
very burdensome. However, Mr. Cooley's directive to avoid the
potential for coercive plea bargaining reveals just how much
leverage the Three Strikes law could give a prosecutor in plea
bargaining.
Under a comparable life-term sentencing scheme - the
'one-strike ' sentencing law for sex offenders - the California
Department of Mental Health found that prosecutors very often
plea bargain in cases where a defendant could be charged with a
one-strike crime. It appears that this practice has contributed
to a steady flow of persons committed to the Sexually Violent
Predator civil commitment program. Many assumed that the
one-strike law - which would impose life terms for persons who
might otherwise be committed to the SVP program - would greatly
reduce SVP commitments. As with Three Strikes, the actual
practices of prosecutors, defendants and courts may be very
different than the terms of the law would appear to dictate.
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In 1999, Jennifer E. Walsh, of the California State University,
Los Angeles, and Claremont McKenna College, published a study
concerning the exercise of discretion by prosecutors and judges
in Three Strikes cases. Walsh relied on surveys from 25 of the
58 elected district attorneys in California and on case files
compiled by the San Diego District Attorney's Office from
1995-1997. (The responding district attorneys prosecuted about
80% of the strikes cases in the state.) Walsh concluded that
prosecutors use common factors in determining whether or not to
seek dismissal of a strike allegation. She further concluded
that "prosecutors are not using their discretionary authority to
strike a strike in a disparate manner ?" Peter Greenwood, a
former researcher at Rand who now heads his own firm, has stated
that "the attorney responses [to Walsh's survey] show a large
disparity in the frequency of use of discretion." Greenwood has
published numerous Three Strikes and other criminology studies.
WOULD ADDING HUMAN TRAFFICKING TO THE SERIOUS FELONY LIST AND
SOLICITATION OF MURDER TO THE VIOLENT AND SERIOUS FELONY LIST
INCREASE THE POWER OF PROSECUTORS IN CASES WHERE THESE CRIMES
ARE CHARGED, REGARDLESS OF THE RELATIVE STRENGTH OF THE
EVIDENCE?
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