Los Angeles Daily Journal article

Los Angeles Daily Journal, November 16, 2012


Prosecutors and defense lawyers gird for "three strikes" changes

By Henry Meier, Daily Journal Staff Writer

When California voters passed Proposition 36 last week, they curtailed the "three-strikes" law, including giving a subset of defendants convicted under the statute a chance to appeal their sentences and reduce their prison terms if a judge approves. But implementing all facets of the initiative might prove dicey. While many district attorneys say they're confident they'll be able to adapt to the legal changes going forward, prosecutors, defense attorneys and criminal justice insiders are worried about the retroactive portion of the law.

"Making sure everyone who is eligible for release gets access to a fair hearing [is challenging]," said Michael Romano, a Stanford Law School professor and director of its Three-Strikes Project.

Romano said he wasn't worried about the hearings in which third-strikers can attempt to challenge their sentences, but figuring out who should get one could be a nightmare.

"The people we're talking about are disproportionately mentally ill and illiterate ... and they have to file the petition themselves," he said. "I'm concerned about the system identifying folks who are eligible for release."

Prosecutors say they're concerned about retroactive application of Prop. 36, including coordinating offender transportation from state prisons to the county and notifying victims about resentencing under Marcy's Law requirements. They say such issues will put enormous strain on district attorneys' offices.

"It's a lot of work and effort and manpower on our part," said Riverside County District Attorney Paul Zellerbach. "It presents a huge challenge for us, the courts and the defense as well."

The other part of the new law, which requires third-strikes be of a violent or serious nature unless previous strikes meet certain criteria, should be less onerous to implement, prosecutors said.

In San Bernardino County, Assistant District Attorney Gary Roth made sure his prosecutors had a copy of the new protocols in-hand immediately.

"The day Prop. 36 passed we had training material prepped and rolled it out to the staff that morning," he said. The California District Attorneys Association made similar guidance available to all counties.

Roth said the new rules might create some additional work for prosecutors. "It'll take a little more research and time to figure out these cases, but not significantly more," he said. "We may have to order more copies of prior records and be more thorough in going through them, but it's not a huge deal."

While the future impact is hard to predict, some 2,000 to 3,500 inmates serving time in state prison could be eligible for relief.

Roth said he was in contact with representatives from the court and public defender's office in San Bernardino County to facilitate a process to identify inmates that were eligible and hear their petitions. He said the California Department of Corrections and Rehabilitation had helped identify approximately 300 prisoners from the county that could be resentenced. Zellerbach, the Riverside district attorney, "guestimates several hundred" from his county would fit that bill, but had yet to hear from the corrections department.

Exit polls done by Californians for Safety and Justice, an organization dedicated to reforming criminal justice for fiscal reasons, showed voters were very motivated to get the cases quickly resolved in order to save the state money.

"Our survey found that three in four voters want to expedite the implementation of Prop 36 to truly realize – and maximize - the cost savings for those people who are eligible for revised sentences," said Lenore Anderson, the group's director. Anderson said the vote on Prop. 36 showed just how far ahead the electorate is of the state's Legislature.

"Californians are far ahead of policymakers right now in wanting changes to the state's prison and justice systems,"she said. "This includes reducing spending and making sure punishments better fit the crimes."



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