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Prosecutors Seek Fewer 3rd Strikes

Since the peak in 1996, D.A.s, including L.A. County's Cooley, have been more selective in pursuing life sentences for three-time felons.

May 27, 2003|Nicholas Riccardi | Times Staff Writer

Although the U.S. Supreme Court earlier this spring ended years of legal doubts about California's three-strikes law, state prosecutors have steadily cut back on seeking life sentences for repeat offenders.

Statewide, the number of 25-years-to-life sentences for a third strike has dropped more than 50% since the peak in 1996. Falling crime rates account for part of that decline, but prosecutors, defense lawyers and independent analysts all say another major factor is that district attorneys are being more selective in deciding when to seek a third strike.

"Prosecutors are beginning to more finely calibrate their use of the three-strikes law," said Charles Hobson, an attorney with the Criminal Justice Legal Foundation in Sacramento who successfully defended the constitutionality of the law before the U.S. Supreme Court earlier this year.

The change has been most notable in Los Angeles County, where Dist. Atty. Steve Cooley has halted prosecution of most nonviolent third-strikers. Just one of every three potential third-strike cases has been prosecuted to the full extent of the law since he took office in December 2000.

Cooley's office has no statistics on the percentage of third-strike cases in which life sentences were pursued under former Dist. Atty. Gil Garcetti, said Cooley's special counsel, Lael Rubin. But she and other prosecutors agree with defense attorneys that the percentage has dropped.

In Orange, Riverside, San Bernardino, San Diego and Ventura counties, there is no rule against prosecutors' pursuing nonviolent offenses as third strikes.

Under Cooley's policy, by contrast, violent offenses and major drug possession charges are normally treated as third strikes. But nonviolent offenses or lesser drug possession charges are presumed not to be third strikes. A prosecutor can overcome that presumption and bring a third-strike case against a nonviolent defendant, but only with approval of higher officials in the district attorney's office.

Cooley's policy put Los Angeles County, origin of 41% of the state's three-strikes cases, into line with policies followed in San Francisco and Alameda counties.

Cooley defends his approach to the law. "I'm not afraid to go after the criminal element, but I'm also not afraid to make policies that make the system work better and the system more fair," he said. "When you're trying to be fair, that takes some courage, because some idiots will call you soft on crime."

Some legal experts have praised Cooley for reducing the number of petty thieves and drug addicts consigned to prison for the rest of their lives. But critics charge that those are precisely the types of criminals voters targeted with the 1994 initiative.

Unlike most of the 24 other states that have adopted versions of the three-strikes law, California's applies to violent and nonviolent offenses committed by anyone who has been convicted of two so-called violent or serious felonies. Sponsors of the law argue that putting repeat offenders away for life, even if their final crimes are nonviolent, is what was intended.

"Everyone wants to lock up really bad people," said Mike Reynolds, the Fresno photographer whose daughter's murder inspired the state's three-strike law. "We're just having trouble figuring out who they are."

Among those who have questioned Cooley's approach is Superior Court Judge Dan Oki, now supervising judge of Los Angeles County's criminal courts.

In a confidential memorandum to judges two years ago, after Cooley's policy was unveiled, Oki wrote that "perhaps the district attorney's policy is what the law should be, but it is not what the law currently is."

The memo, which was advisory and had no legal impact, was inspired by a small number of third-strike cases in which judges ruled that Cooley's office was not seeking a tough enough penalty.

One such case was that of Billy Ray Pimpton, charged with petty theft with a prior conviction for stealing $38 worth of whiskey from a Carson convenience store.

Pimpton's prosecutor was troubled by the man's history of violence, including a gun battle with Compton police 20 years earlier and a more recent alleged attack on his girlfriend with box cutters. Citing Cooley's policy, top officials in his office ordered that no third strike be pursued against Pimpton. But, at his supervisor's urging, the deputy district attorney told the judge, Superior Court Commissioner John T. Doyle, about Pimpton's past.

Doyle denied the district attorney's office's motion for leniency and handed down a sentence of 25 years to life.

What Voters Wanted

"Whether I personally agree with it or not," said the judge, a former defense attorney, sending people like Pimpton away for 25 to life "appears to be what [voters] intended to do."

In 1996, the year the statewide drop in the use of three strikes began, the California Supreme Court gave trial judges the authority to sentence third-strike defendants to less than 25 years to life.

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