Three Strikes and You’re Out (or maybe not)

As many of you may know, various states around the country have “three strikes” laws in the books.  In other words, if an offender is convicted of a third or more violent felony, the punishment could be as high as, well………forever!!  (Minnesota has a version of the three strikes law, but resulting sentences are not life in prison unless the conviction is for First Degree Murder).  These laws were passed in the late 1980′s and early 1990′s in response to what was then considered an “epidemic”:  the massive increase in criminal behavior, including but not limited to violent offenses.  Due in part to the misguided idea that the threat of life behind bars would result in criminal “attrition”, these laws were passed without much opposition.  This was a time when gang violence was reaching stratospheric levels in various large cities around the country, and the carnage left in its wake was simply too much to ignore.  Some states codified rather minor schemes, whereas others enacted extremely severe and unforgiving laws to achieved the desired end.  California was one such state.  When it first enacted the “three strikes law”, California mandated life in prison for a large range of third offenses, including misdemeanor offenses, depending on the criminal history of the offender.  In a nutshell:   A person in California could spend the rest of his or her life behind bars for stealing a T-shirt if their criminal history includes two prior felony convictions.  Imagine that:  You had a relatively active criminal past, but have lead a productive life for years.  You lose your job and can’t afford baby formula and diapers, so you steal some.  You get caught shoplifting, are arrested and charged, and ultimately convicted of stealing $50 worth of merchandise.  Because of your past, you get to spend the rest of your life on the tax payer dime, with a view of bars and prison walls. If you lived in California, such a scenario was a distinct reality.

Due in large part to the fact that the scheme resulted in mass overcrowding of the state’s prisons and jails, California began to loosen the grasp it had over those with checkered pasts.  Rather than sending to prison for life those who commit a minor third offense, a violent felony became a requirement to trigger the three strikes law.  Despite the effort to minimize the pool of those subject to the law, those familiar with the system have often accused various prosecutors of abusing the system to bolster felony conviction rates.  For example, a woman was recently charged with car jacking and robbery.  Mind you, she technically committed one offense:  she stole a car.  However, as most prosecutors do, she was charged with two separate offenses.  Normally, prosecutors offer to dismiss one felony in exchange for a plea to the remaining charge.  However, in this case, the state sought and obtained a conviction for both offenses.  And, due to her criminal history, they were the second and third felony convictions on her record, thereby mandating a sentence consistent with the three strikes law.  In other words, the State of California decided that this woman deserved an extremely lengthy prison sentence and sought a conviction for two separate offenses that arose out of the same behavioral incident.  As I would do if she were my client here in Minnesota, that sentencing decision was appealed.  Recently, the California Supreme Court ruled that it was impermissible  to essentially “stack” convictions that occurred from the same criminal conduct simply to justify an enhanced sentence under the three strikes law.

Thankfully, the California Supreme Court recognized the fact that prosecutors often overreach in an effort to extract as harsh a punishment as possible.  And thankfully it put a stop to it.  Even though the three strikes law in California often meant you were out, recent developments have made clear that a defendant is still on deck.


Privacy v Homeland Security

A federal judge in Oregon recently affirmed the authority of United States Government’s to conduct mass, or “bulk” data collection under FISA.  It is the first case brought after the fire-storm caused by Edward Snowden’s revelations of massive government spying made international news.  The case involved a man convicted of planning a terrorist bombing at the Portland Christmas Tree lighting ceremony in 2010. The conviction was based, in part, on emails that were found on his computer.  In short, the Oregon judge ruled that the government has the authority to spy on foreign nationals, including any communications with United States citizens, without having to use the normal channels of judicial intervention and the procedures/safeguards that go along with it.

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The Fourth Amendment Lives On

The United States Supreme Court issued a highly anticipated and carefully watched opinion today, one that affirms the privacy rights of every person in this country who may happen to come into contact with law enforcement.  In Riley v. California, the Court ruled that a police officer may not search a persons cell phone following arrest without first obtaining a search warrant.  The decision didn’t exactly send shockwaves throughout the judicial system.  However, for those of us familiar with the Supreme Court, and its propensity to chip away at our personal privacy rights , as well as its clear ideological divide, it was surprising that the Court ruled for the defendant on a 9-0 vote. Read more