20 June 2006

Rare 8th Amendment Defendant Win

A man sentenced to 26 years to life under California's three strikes law for taking the written part of the driver's license test for an illiterate cousin under the argument that a life sentence for the third of three "serious" felonies are disproportionate to the life sentence under the 8th Amendment, if the defendant was not personally engaged in violent activity during any of the offenses.

In this case the prior two strikes were a juvenile burglary and an armed robbery conviction as an adult six years after the juvenile offense and fourteen years prior to the most recent conviction. The driver's license offense would have been a misdemeanor itself, but for the prior conviction. The man argued on appeal that he was not personally armed or violent during the armed robbery and should be allowed to argue that this was the case in the sentencing hearing, and the 9th Circuit agreed, holding that if this was the case, that the 8th Amendment was violated. The U.S. Supreme Court declined to review the case.

Of course, the more fundamental problem is California's three strikes law itself, some of whose flaws are well illustrated in this case. First, it includes juvenile offenses. Second, there is no time range within which the strikes can be committed, once you have two strikes it doesn't matter if you stay clean for decades afterwards. Third, strikes don't have to be terribly serious felonies. And fourth, strikes can include offenses which would be a misdemeanor if committed by a first offender.

A juvenile burglary, misdemeanor forgery conviction and being a lesser participant in an armed robbery do not an unredeemable felon make, particularly when these offenses are widely spaced over twenty years. It is an injustice to the man convicted and all who rely upon him for support, and it is an injustice to the people of California who have to pay for it.

There is nothing fundamentally wrong for enhancing punishments for recidivist offenders. They pose a high risk off reoffending so keeping them in prison and off the streets for a longer period than a first offender makes sense. But, punishments also need to bear some relationship to the crime, even for recidivists.

Colorado Compared

Colorado, while not perfect, is far less draconian than California.

To qualify for life imprisonment on the basis of three strikes in Colorado, each of the felonies must be a class one felony, a class two felony, or a violent class three felony. Section 18-1.3-803(1), Colorado Revised Statutes. This means that strikes are limited to crimes like murder, aggravated assault, kidnapping, armed robbery, and aggravated rape. In practice, this results in no meaningful sentence enhancement for class one felonies, which already carry a life sentence, and rarely more than doubles a sentence for a class two felony or a class three violent felony, which already carries a sentence of up to twenty-four years and in some cases longer.

Alternately, one can face life imprisonment as a habitual criminal in Colorado by committing a felony crime of violence, when one had already committed four ordinary felonies tried on separate occassions and involving separate criminal episodes, and have already received one previous aggravated habitual criminal sentence. Section 18-1.3-803(2.5), Colorado Revised Statutes. This does not appear to include juvenile offenses. If the current offense was a class three felony or worse, this no more than doubles the sentence. If the current offense is a class four violent felony, this no more than triples the sentence in most cases. If the current offense is a class five or class six violent felony, this could increase the sentence sixfold or more.

Colorado has other habitual offender statutes, but they result merely in double (two serious burglaries within ten years), triple (three non-trivial felonies within ten years), or quadrupile (four felonies) the regular sentence for the crime most recently committed. Thus, the punishment bears some relationship to the crime, and in the case of a relatively minor most recent offense, is much shorter than a life sentence.

Thus, the only time you can receive more than four times the usual maximum sentence in Colorado, is if you a convicted of a violent class five or six felony (such as a a first or second degree assault causing serious bodily injury committed in the heat of passion) and have four prior felonies, which makes it a little hard to feel much sympathy for you, even if you are getting a relatively raw deal.

The defendant in the California case described above wouldn't even be considered a habitual offender in Colorado at all due to the juvenile case, the time elapsed between the cases and the fact that the third would be a misdemeanor, since only a handful of offenses go from misdemeanor to felony status based on previous convictions and even then only in very specialized situations.

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