On the upcoming November 3 California election ballot is to soften sentences for non-violent crimes in the 3 Strike Act, such as drug possession. With a history of violent crimes, the third strike is an easy decision but a problem arises when someone picks up a couple of strike offenses that aren't violent, says retired Superior Court Judge of Santa Clara, California Eugene Hyman.
One of the initial problems, says Hyman, is figuring out what some of the crimes are that are classified as non-violent. For example, in California, threatening someone by saying "I'm going to kill you," qualifies as a third strike offense. Petty theft, as another example, is a robbery if force or fear is used and robbery, in California, whether or not the person is armed is not only a straight offense but now it is a strike felony, according to Hyman.
If the prosecutor has charged a crime under the 3 strikes, the defense has a couple of options to bring a motion at the time of sentencing to strike a strike, says Hyman. The person may be treated as a second strike person rather than a third strike person and then their prison sentence is usually doubled because they're ineligible for probation, Hyman adds.
Hyman notes that the prosecutor, as a member of the executive branch, has a great deal of authority and discretion on how they charge crimes and they're not required to pledge every strike offense that's out there.
With the third strike law, there's no "wash out period," says Hyman, so if you pick up a couple of strikable offenses twenty years ago and then you pick up an offense today, those strike offenses are eligible for consideration, even if they were picked up as juveniles.
An additional problem, Hyman notes, is that case law, at least in California, is very strict from a judge's discretion perspective in terms of what kinds of factors must be present before a judge can strike a strike. "When you add all of this up, the prosecutor is the one that's driving the facts of the situation," says Hyman.
Regarding a pre-disposition to alcohol or drug addiction, that is not going to be recognized as an excuse in terms of perpetrating a crime, Hyman says and violent crimes, no matter how sad the person's childhood was, doesn't factor in because violence is taken very seriously.
One of the things a judge is powerless to do when sentencing a person to state prison is to demand substance abuse intervention at the correctional facility. In Judge Hyman's opinion, if you're sending someone away without any substance intervention, then you're setting them up to come out and perpetrate more crimes and come back to prison.
Supporters of the reform act say it can save around $70 million dollars but Hyman says that if some of the savings aren't going to be put back in in terms of substance abuse intervention, which is relatively inexpensive, then they're really not going to be saving any money because these people are going to be coming back and back into the prison system.
One of the good things about realignment, which is when more people are sent to serve time in county jail, is the county jail does a better job of substance abuse intervention than the state prison and these people do turn around, Hyman says. He adds that there also needs to be accountability when people get out, whether it's from the county jail or parole system, that if they don't go to meetings or test clean, that there needs to be quick intervention.
"The public is told that the programs don't work and that these people need to be locked up for a long time, which is really an injustice in terms of identifying the problem," says Hyman.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. For more information on the 3 Strike Reform Act, click here for an article in the Huffington Post.