BILL ANALYSIS
AB 2447
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Date of Hearing: April 4, 2000
Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
AB 2447 (Wright) - As Introduced: February 24, 2000
SUMMARY : Amends the "Three Strikes" law to require that the
current conviction be a "serious" or "violent" felony in order
to sentence a defendant to a minimum term of 25 years to life in
the state prison. Specifically, this bill :
1)Provides that if it is pled and proved that the defendant has
two or more prior serious or violent felony convictions, as
defined, and if the defendant's current conviction is for a
serious or violent felony, the term for the current felony
conviction shall be an indeterminate term of life imprisonment
with a minimum term of the indeterminate term calculated as
the greater of:
a)Three times the term otherwise provided as punishment for
each felony conviction subsequent to the two or more prior
felony convictions;
b)Imprisonment in the state prison for 25 years; or,
c)The term determined by the court under the determinate
sentencing law including applicable enhancements.
EXISTING LAW :
1)Provides that if a defendant is convicted of a felony offense
and it is pled and proved that the defendant has previously
been convicted of two or more serious or violent offenses as
specified, the term for the current conviction is an
indeterminate term of life in prison with the minimum term
calculated as the greater of 25 years, three times the term
provided for each current felony conviction, or the
determinate term which would otherwise be imposed including
enhancements. (Penal Code Sections 667 and 1170.12.)
2)Provides that if a defendant is convicted of a felony offense
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and it is pled and proved that the defendant has been
convicted of one prior serious or violent offense as defined,
the term of imprisonment is twice the term otherwise imposed
for the current offense. (Penal Code Sections 667 and
1170.12.)
3)Provides that affected defendants may not receive probation,
there is no limitation on the aggregate term, conduct credits
are limited to 20% of the term, and any additional convictions
must be sentenced consecutively. (Penal Code Sections 667 (c)
and 1170.12 (a).)
4)Does not require that prior qualifying convictions arise in
separate cases, and "strike" convictions need not arise from
separate transactions that can otherwise not be separately
punished. (Penal Code Section 667 (a).)
5)Provides that a juvenile adjudication of a minor 16 years of
age or older constitutes a prior "strike" if the offense
otherwise qualifies an adult strike, or would establish
presumptive unfitness for juvenile court, and the minor was
declared a ward of the court for the commission of the
offense. (Penal Code Section 667(d)(3).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement . According to the author, "The issue of
three strikes has unfortunately become dominated by political
posturing rather than factual analysis. Numerous independent
studies of the impact of three strikes have raised serious
questions about its role as the prime factor for the reduction
in crime. AB 2447 does not detract from the original intent
or the main impact of the three strikes law. By requiring
that the third strike be a serious or violent felony, AB 2447
eliminates the one major public objection to the law. A
criminal justice system that does not make the distinction in
sentencing between the burglary of a $400 bike from a garage
and murder risks losing the respect of the public. The recent
refusal by two jurors in Placerville to convict and,
therefore, commit a criminal defendant to a third strike
sentence for such a burglary is an example if the growing
moral and ethical problems we force on the public. AB 2447
corrects this problem without weakening the main thrust of
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three strikes, which is to get serious and violent offenders
off the street."
2)Additional "Three Strikes" Information . The "Three Strikes"
law was enacted by AB 971 (Jones/Costa), Chapter 12, Statutes
of 1994, and by Proposition 184. Mandatory provisions beyond
those listed in "Existing Law" above include:
a)A juvenile adjudication (finding by a juvenile court judge
that a minor committed a crime) may constitute an adult
strike prior, although a minor is not entitled to a jury
trial.
b)A person sentenced under the "Three Strikes" law may not be
committed to any facility other than prison.
c)"Three Strikes" law prohibits plea-bargaining.
d)"Three Strikes" eliminates any "washout" period, requiring
that any prior or serious or violent felony conviction be
used regardless of when it occurred.
e)Requires the prosecuting attorney to plead and prove each
prior felony conviction.
f)"Three Strikes" may only be amended by a two-thirds vote of
the Legislature or a ballot measure approved by the
electorate.
3)Differentiation among Felonies . Existing law differentiates
between the severity of crimes. Thus, some felony offenses,
such as rape or murder, have higher penalties than others do,
such as theft. Under "Three Strikes," any felony conviction -
not only a serious or violent felony conviction - following a
violent or serious prior results in a sentence of twice the
normal length. With any two violent or serious felony priors,
a new felony conviction results in a life sentence. Thus,
"Three Strikes" makes no distinction in severity between the
different felonies.
For example, a person who was convicted of breaking into a
neighbor's garage (whether attached to the home or not) on two
occasions in order to steal a bicycle and receives probation
for the acts would have two serious prior offenses. All
residential burglary is defined as a "serious" felony, whether
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it occurs during the day or night and whether or not a person
is actually in the residence. Any third felony, such as theft
of $400 worth of property, results in a life term under the
provisions of "Three Strikes" regardless of whether or not the
accused had ever acted violently or dangerously. Two counts of
theft not committed on one occasion or arising from the same
facts - two separate incidents - charged in one case will
yield two consecutive terms of 25 years to life.
Since the third felony can be any felony, forgery of a $10
check, petty theft with a prior, or possession of a stolen
radio with two prior serious felonies would result in a life
sentence. This bill requires that the current conviction be a
serious or violent felony.
4)Judicial Discretion . The California Supreme Court held in
People v. Superior Court of San Diego County (Romero), (1996)
13 Cal. 4th 497, that for the purposes of "Three Strikes", the
court on its own motion may strike a prior felony conviction
in the interests of justice. However, the court's discretion
to strike prior convictions is limited, its exercise must be
in strict compliance with Penal Code Section 1385, and is
subject to review for abuse of discretion.
A trial court's discretion to deem a "wobbler" a misdemeanor
pursuant to Penal Code Section 17(b) and People v. Alvarez
(1997) 14 Cal 4th 968 give the court slightly wider discretion
to reduce an offense to a misdemeanor. However, such a
decision must also be made only after consideration of all
relevant facts, including the nature of the qualifying prior
convictions.
The very limited use of judicial discretion by trial judges has
been clearly demonstrated by applicable data. Commitments to
prison under the "Three Strikes" law stayed virtually constant
after the Romero and Alvarez decisions. ("Three Strikes
Update", Legislative Analyst's Office, October 1997.)
5)Cost of "Three Strikes" . On February 20, 1996, the Senate
Judiciary Committee, Criminal Procedure Committee, Budget and
Fiscal Review held a joint informational hearing on the
"Impact of the 'Three Strikes' Law on the Civil and Criminal
Justice System in California". At the hearing, the committees
learned that the impact of "Three Strikes" has varied widely
between counties, but courts, jails, and prosecution and
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defense efforts have been impacted in virtually all counties.
The Legislative Analyst's office noted that although more than
90% of all felony cases are disposed of through plea
bargaining in which the defendant ultimately agrees to plead
guilty, many fewer offenders are agreeing to plead guilty in
"Three Strikes" cases, presumably because of the much longer
sentences. This has resulted in many more cases going to
trial and many more defendants being held in county jail
awaiting or undergoing trial.
The backlog of criminal cases has pushed some misdemeanor and
low-level felony, as well as civil, cases out of court in some
jurisdictions. The "Three Strikes" law has limited the
ability of public defenders' offices to handle misdemeanor
cases for indigent defendants. Due to the impact "Three
Strikes" cases have on jails, some counties are no longer
booking misdemeanants and are releasing more sentenced and
pre-sentenced "Three Strikes" offenders from custody.
Assaults within the jail systems have increased, apparently
due to the number of "Three Strikes" cases where the inmates
are facing substantially longer terms.
Recent data continue to document the cost of the "Three Strikes"
law, particularly in Los Angeles County, which prosecutes
approximately 40% of the "Three Strikes" cases statewide.
Through 1997, the cost of "Three Strikes" cases to the Los
Angeles County Public Defender's Office has been over $80
million, costs to the prosecution totaled approximately $75
million, and costs to the sheriff were approximately $140
million. Because of the impact on Los Angeles County, the
County has filed a claim with the Commission on State Mandates
for $322 million for the costs of "Three Strikes" to the
county through 1997.
6)Prison Saturation Population. In an April 2, 1999 Sacramento
Bee article, the Associated Press (AP) reported that
California prisons are dangerously overcrowded. Current
California Department of Corrections (CDC) data shows a prison
population of approximately 160,000. The design capacity of
all facilities is approximately 80,000. Thus, the prison
system is at 200% of capacity.
The article, "April 2001, No More Room at Inn," quoted Robert
Presley, Director of Youth and Adult Correctional Agency
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(YACA) on the conditions in California prisons. Presley told
the AP that the prison system "is approaching critical mass .
. . [By] April, 2001 . . . we will have exhausted every cranny
and nook."
7)Justice Policy Institute Study on "Three Strikes". The
Justice Policy Institute (JPI) along with University of
California, Irvine School of Social Ecology doctoral candidate
Mark Males recently published a study, "Striking Out", on the
implementation of the "Three Strikes" law in various
California counties. The study used data collected by the CDC
and the Department of Justice from the 12 largest California
counties.
This study examined the data on the defendants sent to prison
from each of the 12 largest counties under "Three Strikes"
sentences. The data included raw numbers and the proportion
of "Three Strikes" sentences in contrast to other prison terms
from each county. The study concluded that the proportion of
defendants sent to prison under "Three Strikes" reflected the
charging policies of the county district attorney.
The authors of the study confirmed that a county's reliance
upon, or heavy use of, the "Three Strikes" law in sentencing
did not correlate to lower rates of crimes. Counties such as
Alameda (in addition to San Francisco) that sent a smaller
percentage of defendants to prison under "Three Strikes"
sentences had greater decreases in crime, particularly violent
crime, than did counties such as Sacramento and Los Angeles,
that relied heavily upon "Three Strikes" in charging and
sentencing defendants. (Source: California Criminal Justice
Statistics Center, CDC, Data Analysis Unit.)
The JPI found that of the nearly 40, 000 imprisoned under the
"Three Strikes" law, the great majority were convicted of
non-violent crimes. While 30% were convicted of drug crimes,
another thirty seven percent were convicted of property
crimes. Meanwhile, only 1% was convicted murderers.
JPI study authors summarized their conclusions about county by
county use of "Three Strikes" and crime rates as follows:
"Data clearly show that counties that vigorously and strictly
enforce the 'Three Strikes' law did not experience a decline
in any crime category relative to more lenient counties. The
absence of any difference in relative crime rates occurred
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despite the fact that the six largest counties [in terms of
use of 'Three Strikes'] applied the law at a rate 2.2 times
greater than the six counties that invoked the law least.
"Even more remarkable, the sevenfold greater use of 'Three
Strikes' in Sacramento and Los Angeles was not associated with
a bigger crime decline than in Alameda and San Francisco, two
counties that rarely use the law. In fact, San Francisco, the
county which uses 'Three Strikes' most sparingly, witnessed a
greater decline in violent crime, homicides and all index
crime than most of the six heaviest enforcing counties."
8)"Three Strikes" Statistics. Current CDC data:
a)Total prison population as of March 29, 1999:
159,911
Total prison population as of March 29, 1998:
156,662
Percentage increase in the last year:
2%
b)March 4, 1999 CDC data analysis of "Three Strikes" prison
population - Total cases under the "Three Strikes" law
account for approximately 30% of prison inmates.
i)Second "strike" (one prior strike conviction) inmates:
39,997
ii) Third "strike"
(two prior strike convictions) inmates:
5,043
iii) Total "strike" inmates:
45,040
c)Breakdown of "strike" offenses by types of crimes for which
inmates were sentenced to prison:
i)"Second Strike" Cases (one prior "serious" felony):
(1) Crimes against Persons: 20.0%
(2) Drug Crimes:
31.8%
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(3) Property Crimes: 35.9
%
(4) "Other" Crimes: 10.4%
(5) Missing Data:
1.9%
"Second Strike" inmates with non-serious/nonviolent
current offenses are approximately 78%.
ii) "Third Strike" Cases:
(1) Drug Crimes:
19.4 %
(2) Property Crimes: 31.6 %
(3) Crimes against Persons: 40.2%
(4) "Other" Crimes: 8.9%
(5) Missing Data:
1.2%
"Third Strike" Inmates with non-serious/nonviolent
current offenses are approximately 50%.
iii) Specific Crime Comparisons:
(1) Inmates Serving "Second Strike" (Doubled)
Terms:
(a)
Simple Possession of (Non-Marijuana) Controlled
Substances:
8,157
(b) All Sex Crimes:
1,237
(c) Robbery (with and
without weapons):
3,061
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(d) Commercial
(Non-Residential) Burglary:
3,287
(e) Residential Burglary
1,978
(f) Murder (First and
Second Degree)
222
Total "Second Strike" Inmates
39,997
(2)
Inmates Serving "Third Strike" (Twenty-five Years to
Life) Terms:
(a)
Simple Possession of (Non-Marijuana) Controlled
Substances: 498
(b)
All Sex Crimes:
239
(c)
Robbery (With and Without Weapons)
912
(d)
Commercial (Non-Residential) Burglary
347
(e)
Residential Burglary
580
(f)
Murder (First and Second Degree)
161
Total "Third Strike" Inmates
5,043
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9)Five-Year Report on the Success of "Three Strikes" . In a press
release dated February 26, 1999, Secretary of State, Bill
Jones (co-author of "Three Strikes" law) asserted that the
"Three Strikes" law is responsible for the decline of crime in
California: "The theory was simple, if we could incarcerate
the small number of criminals who commit the vast number of
crimes, we could effectively lower the crime rate and save
thousands of lives. Five years later we have witnessed a
reduction in crime that is greater than even the most
optimistic 'Three Strikes' supporters predicted.
Secretary of State Jones cited Department of Justice Statistics
that overall crime in California is down 38% and that murder
and robbery rates are down by 50%. Jones attributes the
decline to the "Three Strikes" law. Secretary Jones further
states that "Three Strikes" has deterred recidivists: "In
1994, the year that 'Three Strikes' was put in place, more
parolees left the state than entered for the first time since
1976. That trend continues until this day."
10)
Statement in Support . According to the California Association of
Black Lawyers, "Current data provided by the CDC indicates
that African-Americans are overwhelmingly the population being
prosecuted under the current 'Three Strikes' law, comprising
approximately 44% of the 'three strikers' now incarcerated.
In addition, according to the JPI, of the nearly 40,000
inmates imprisoned under the 'Three Strikes' law, the great
majority were convicted on non-violent crimes. Furthermore,
studies have found that there is no correlation between
California's drop in crime and the current 'Three Strikes'
law."
11)
Statement in Opposition . According to the California Correctional
Peace Officers Association (CCPOA), "CCPOA is convinced that
the 'three strikes' law has had a positive impact on reducing
crime in California. By requiring the third strike to be a
serious or violent felony does not in any way protect society
better than the current law. Rather, this measure would
require another person to become a serious or violent crime
victim before the three strikes can be fully implemented.
Remember, the three strikes law was intended to hold a
criminal accountable for their 'lifestyle.' If two prior
trips to prison doesn't phase them, the 'any' felony' wide-net
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is designed to protect public safety at its earliest
opportunity."
12)
Prior Legislation. AB 1444 (Kuehl), of the 1995-96 Legislative
Session, required that the current conviction for the purposes
of the "Three Strikes" law be a serious or violent felony. AB
1444 failed passage in the Assembly Public Safety Committee.
SB 1317 (Lee), of the 1997-98 Legislative Session, required the
current conviction for the purposes of the "Three Strikes" law
be a serious or violent felony. SB 1317 failed passage on the
Senate Floor.
SB 2048 (Vasconcellos), of the 1997-98 Legislative Session,
authorized a joint study of the cost and benefits of the
"Three Strikes" law. SB 2048 was vetoed by the Governor.
SB 79 (Hayden), of the 1997-98 Legislative Session, required the
current conviction for the purposes of the "Three Strikes" law
be a serious or violent felony. SB 79 failed passage on the
Senate Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Black Lawyers
National Organization for the Reform of Marijuana Law
Opposition
California Correctional Peace Officers Association
Committee on Moral Concerns
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744