POLI 103A CALIFORNIA
POLITICS
CRIME AND PUNISHMENT I:
THE SYSTEM
Chief Justice Ron George
Crime and Punishment I: The System

How Criminal Justice Policy is Made
 Legislation
by anecdote
 Initiatives lock in decisions

How Justice Policy is Enforced
 Pyramid
of courts
 Politics and the judicial branch

Effects of the Tough on Crime Wave
How Criminal Justice Policy is Made

Legislation by Anecdote. Key events
that drive the news cycle often drive
policy.
 1993
murder of Polly Klaas by two-time
kidnapping convict Richard Allen Davis led to
California’s “Three Strikes” law.
 Many gun control bills have been passed in
the wake of mass shootings (Stockton
playground led to assault rifle ban,
Columbine led to gun-a-month).
How Criminal Justice Policy is Made

In March, 1994, Assembly Bill 971 (Bill
Jones and Jim Costa) passed 29-7 in the
Senate and 63-9 in the Assembly.
 If
a defendant has two prior convictions of
violent or serious felonies, a third conviction of
any felony automatically leads to a sentence of
25 years to life. A second conviction doubles
your sentence.
 Predicted cost $2.8 billion for incarceration by
2003 and $21.3 billion in construction.
How Criminal Justice Policy is Made
Locking in Decisions

This legislative victory was locked in by
the passage of Proposition 184 in the
1994 general election.
 It
passed with 72% of the vote.
 Marc Klaas, Polly’s father, famously changed
his position on the law when he learned of
its scope.
 Bills to require that the third strike be
serious or violent have failed.
How Justice Policy is Enforced
Pyramid of Courts
California Supreme Court –
7 Justices, 5,000 filings
Courts of Appeal – 101 Justices, 20,000 filings
Superior Courts – 789 Judges, 1 million filings
Municipal Courts – 616 Judges, 16 million filings
The People’s Court
How Justice Policy is Enforced
Pyramid of Courts

Municipal Courts hear misdemeanors and
<$25,000 civil cases
 Misdemeanor
convicts go to county jails for
less than a year

Superior Courts can hear felony cases
and <$25,000 civil case
 Felony
convicts go to state prisons for a year
or more
How Justice Policy is Enforced
Pyramid of Courts

Appeals Courts and the Supreme Court
do not hear the facts of the case, leaving
this to the “trial courts,” and instead
correct errors of law.
 Death
penalty cases go straight to the
Supreme Court on appeal.
 The Supreme Court also resolves open
questions of law.
How Justice Policy is Enforced
Politics and the Judicial Branch

Appeals Court and Supreme Court
justices are picked by the governor.
 Their
selection must be confirmed by the
Commission on Judicial Appointments,
which has only rejected one (in 1940).
 When the justice’s term expires, voters in
the state or appellate district have the
chance to vote yes or no on the justice. Only
three justices have ever lost.
How Justice Policy is Enforced
Politics and the Judicial Branch

Superior and Municipal Court judges
either win an “open seat” (the old judge
left when term expired) or are appointed
by the governor (for a mid-term vacancy).
 In
either case, there is an election at the end
of the six year term.
 Any lawyer can run to fill the next term.
Effects of the Tough
on Crime Wave

#1. Transfer of discretion.
 Judges
used to have broad discretion in
making the punishment fit the crime.
 Under Three Strikes, district attorneys have
the real discretion by deciding whether to
charge a crime as a strike.
 Bowers (NYU Law Review) shows that San
Francisco doesn’t charge nonviolent felonies
as strikes, but San Diego leads the state in
Three Strikes convictions.
Effects of the Tough
on Crime Wave

#2. There was a dramatic decrease in the
crime rate during the 1990s.
 Advocates
of Three Strikes point to
deterrence and incarceration effects.
 Reduction may also result from drops in
unemployment and the population
proportion of 14-24 year old males.
 Drop in counties like San Francisco equals
drops in those like San Diego.
Effects of the Tough
on Crime Wave

#3. By 1999, 40,000 Californians were in
prison on second strike charges, 5,000 for
third strikes.
 This
is 30% of the prison population, but not
as large as expected.
 “Crimes against person” accounted for only
20% of second strike sentences and 40% of
third strike cases.
 Primarily drug and property crimes.
Effects of the Tough
on Crime Wave

#4. Backlash against the sentence
enhancements of early 90s:
Proposition 215 (56%, 1996), the Medical
Marijuana Act, allowed cultivation and
possession of pot if doctor-recommended.
 Proposition 36 (61%, 2000) mandated parole and
drug treatment, but not incarceration, for those
convicted of use or possession.
 Another Proposition 36 (2012) amends the Three
Strikes law

Discussion Questions



Should we make policy by anecdote?
If rejection of justices by the Commission
on Judicial Appointment or by voters is so
rare, do these apparent obstacles make a
difference?
What are the benefits and drawbacks of
electing trial judges?