CRIME AND PUNISHMENT I: THE SYSTEM Chief Justice Ron George

Crime and Punishment I: The System How Criminal Justice Policy is Made Legislation by anecdote Initiatives lock in decisions How Justice Policy is Enforced Pyramid of courts Politics and the judicial branch Effects of the Tough on Crime Wave

Crime in California

Prisons in California California’s Youth and Adult Corrections budget has grown from 3.3% of general fund spending in 1976-1977 to a proposed 9.4% in 2012-13. Fastest growing area. Higher Education dropped from 18.0% to 10.5% over this period

How Criminal Justice Policy is Made Legislation by Anecdote. Key events that drive the news cycle often drive policy. 1993 murder of Polly Klaas by two-time kidnapping convict Richard Allen Davis led to California’s “Three Strikes” law. Many gun control bills have been passed in the wake of mass shootings (Stockton playground led to assault rifle ban, Columbine led to gun-a-month).

How Criminal Justice Policy is Made In March, 1994, Assembly Bill 971 (Bill Jones and Jim Costa) passed 29-7 in the Senate and 63-9 in the Assembly. If a defendant has two prior convictions of violent or serious felonies, a third conviction of any felony automatically leads to a sentence of 25 years to life. A second conviction doubles your sentence. Predicted cost $2.8 billion for incarceration by 2003 and $21.3 billion in construction.

How Criminal Justice Policy is Made Locking in Decisions This legislative victory was locked in by the passage of Proposition 184 in the 1994 general election. It passed with 72% of the vote. Marc Klaas, Polly’s father, famously changed his position on the law when he learned of its scope. Bills to require that the third strike be serious or violent have failed.

How Justice Policy is Enforced Pyramid of Courts California Supreme Court – 7 Justices, 5,000 filings Courts of Appeal – 101 Justices, 20,000 filings Superior Courts – 789 Judges, 1 million filings Municipal Courts – 616 Judges, 16 million filings The People’s Court

How Justice Policy is Enforced Pyramid of Courts Municipal Courts hear misdemeanors and <$25,000 civil cases Misdemeanor convicts go to county jails for less than a year Superior Courts can hear felony cases and <$25,000 civil case Felony convicts go to state prisons for a year or more

How Justice Policy is Enforced Pyramid of Courts Appeals Courts and the Supreme Court do not hear the facts of the case, leaving this to the “trial courts,” and instead correct errors of law. Death penalty cases go straight to the Supreme Court on appeal. The Supreme Court also resolves open questions of law.

How Justice Policy is Enforced Politics and the Judicial Branch Appeals Court and Supreme Court justices are picked by the governor. Their selection must be confirmed by the Commission on Judicial Appointments, which has only rejected one (in 1940). When the justice’s term expires, voters in the state or appellate district have the chance to vote yes or no on the justice. Only three justices have ever lost.

How Justice Policy is Enforced Politics and the Judicial Branch Superior and Municipal Court judges either win an “open seat” (the old judge left when term expired) or are appointed by the governor (for a mid-term vacancy). In either case, there is an election at the end of the six year term. Any lawyer can run to fill the next term.

Effects of the Tough on Crime Wave #1. Transfer of discretion. Judges used to have broad discretion in making the punishment fit the crime. Under Three Strikes, district attorneys have the real discretion by deciding whether to charge a crime as a strike. Bowers (NYU Law Review) shows that San Francisco doesn’t charge nonviolent felonies as strikes, but San Diego leads the state in Three Strikes convictions.

Effects of the Tough on Crime Wave #2. There was a dramatic decrease in the crime rate during the 1990s. Advocates of Three Strikes point to deterrence and incarceration effects. Reduction may also result from drops in unemployment and the population proportion of 14-24 year old males. Drop in counties like San Francisco equals drops in those like San Diego.

Effects of the Tough on Crime Wave #3. By 1999, 40,000 Californians were in prison on second strike charges, 5,000 for third strikes. This is 30% of the prison population, but not as large as expected. “Crimes against person” accounted for only 20% of second strike sentences and 40% of third strike cases. Primarily drug and property crimes.

Effects of the Tough on Crime Wave #4. Backlash against the sentence enhancements of early 90s. Proposition 215 (56%, 1996), the Medical Marijuana Act, allowed cultivation and possession of pot if doctor- recommended. Proposition 36 (61%, support 2000) mandated parole and drug treatment, but not incarceration, for those convicted of use or possession. Proposition 36 (69% support in 2012) required a Third Strike to be serious or violent to lead to 25-to-life, except for heinous 1st and 2nd strikers. Leading to resentencing now.

Discussion Questions Should we make policy by anecdote? If rejection of justices by the Commission on Judicial Appointment or by voters is so rare, do these apparent obstacles make a difference? What are the benefits and drawbacks of electing trial judges?