Q What were the criminal justice propositions on the ballot in the last elections and what did they signify?

A  On November 6, 2012, California  voters
rejected a proposition to end the death penalty, but passed propositions to increase penalties for human trafficking crimes and to end some aspects of three strikes sentencing. For the most part, the “tough on crime” trend continued.

In the 1990s, legislatures instituted mandatory sentencing, and California voters approved three strikes legislation to increase penalties for repeat serious or violent felony offenders. Under California’s three strikes scheme, recidivists could be sentenced to life in prison for conduct punishable by a day in the county jail for a first time offender. Until 2011, even petty theft could trigger a life sentence if the accused had two prior strike felony convictions. So, stealing items valued at less than $400 could end in a life sentence.

In California, backers of an initiative can place it on the ballot by obtaining a certain number of voter signatures. If more than 50% of the voters approve the proposition, it either becomes the law or amends the State Constitution.

The danger is that propositions with heavy financial backing often pass regardless of whether they are good ideas or not. Three strikes and mandatory sentencing laws are not good ideas because they take discretion out of the hands of judges and effectively transfer it to the prosecution.

The prosecution has always had sole discretion for charging crimes. Prosecutors decide whether to pursue a case under the three strikes scheme. Now with mandatory sentencing, the charging decision has a much greater impact on the outcome of the case, because that decision makes it certain that the convicted defendant will be punished a certain way.

Mandatory sentences deny justice to the accused. Even if one is innocent, going to trial is an uncertain proposition. The truth is often difficult to discern because human witnesses have lapses of memory, biases, and other reasons to be unreliable. The convicted defendant cannot appeal to the judge whose hands are tied by the mandatory sentences.

The specter of losing at trial and incurring a lengthy prison sentence deters many an accused from fighting his case.

Voters did, at least, end the possibility of life sentences for non-violent offenses committed by third strikers. We appear to be coming to the realization that mass incarceration is not the answer to all criminal justice problems. Our prison population has grown exponentially without a corresponding decrease in crime. This is likely due to the fact that incarceration does not solve the underlying issues that spawn criminals.

Crime rates would diminish much more reliably were we, as a society, to address the root cause of crime rather than to institute harsher penalties in knee jerk reactions to specific incidents. Leniency is not the answer, but neither is an unthinking lock ‘em up approach. The punishment must fit the crime. Mandatory sentences take away judges’ discretion to fashion appropriate punishments.

Naresh Rajan is an attorney in San Mateo County. Email nrajanlaw@gmail.com.

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