A 'dangerous' new law takes away a judge's sentencing discretion in instances where a gun is used in a crime.
California Gov. Pete Wilson recently signed into law a new package of anti-crime bills. One in particular, Assembly Bill 4, has been described as the nation's "toughest" law against criminals who use guns in the commission of a felony.
On its face, the law looks simple. It increases the penalties for defendants convicted of using a gun in the commission of a felony. The law adds 10 years to any sentence if a gun is brandished during a crime, 20 years if the gun is fired, and 25-years-to-life if someone is injured.
AB4 is similar to the three-strikes law in that it mandates a particular sentence upon conviction of a crime. I believe that laws requiring a minimum mandatory sentence are dangerous because they take away discretion from judges and prosecutors. Discretion is needed so that a fair sentence may be given that both protects society and punishes the individual appropriately.
Hidden Issues
Both of these laws look great on paper. They are simply written and easy to apply. In short, they are very concrete. This, to a large extent, is what makes them so popular with the general public. How an we possibly be against a law that puts dangerous criminal away for life? However, it is this very concreteness, this very inflexibility that makes these laws so perilous to our criminal justice system.
Not every defendant charged with the same crime deserves the same sentence. The three-strikes law and the AB4 treat all criminal defendants in cookie-cutter fashion, requiring a judge to hand down a 25-years-to-life sentence in instances where a gun is used to shoot someone, no matter what the particulars of the defendant's crime or background. Under the sentencing guidelines for most felonies not affected by AB4 or the three-strikes law, the judge can, and indeed, must look at mitigating circumstances, both those to do with the crime, and the defendant's history, before choosing a sentence. Three strikes and AB4 make these criteria irrelevant.
Examples of the injustice under the three-strikes law are easy to find. If an individual pleaded guilty to robbing a store when he was 15, he could potentially have two strikes against him. Now, some 20 years later he is arrested for shoplifting. Because of his prior conviction, he could be charged with a felony, and if convicted could be sent to prison for life!
An Overreaction?
AB4 is arguably even more dangerous than the three-strikes law for two reasons. First, the 25-years-to-life enhancement in AB4 is equivalent to the most severe base sentence that can be imposed under the three-strikes law. However, the three-strikes law provides that the defendant must have two prior serious felony convictions prior to the imposition of a life sentence. AB4 mandates a 25-year-to-life sentence for a single serious offense. Thus, one bad deed can put an individual in prison for life, regardless of the mitigating circumstances.
For example, suppose you are at your residence and you hear a strange noise in the front yard. There have been a number of break-ins in your neighborhood, and you are afraid. You get your gun from out of a locked box, load it and go outside. You see a person and yell at him to stop. He moves toward you. You shoot and kill the "intruder," who is later determined to be a salesman. You are charged with manslaughter and under AB4, are facing life in prison. The judge cannot give you any leniency or exercise any discretion. If you are convicted, you must be sentenced to a 25-years-to-life, regardless of your prior spotless record, or your fear of intruders.
Second, with the three-strikes law, judges have discretion to "strike a prior" if it is in the interest of justice. Thus, if a defendant commits one crime many years ago, and then picks up a less serious felony much later in life, the judge might give him a lighter sentence. AB4 requires the court to impose the greatest applicable enhancement. There are no exceptions to this requirement. It is interesting to note that both AB4 and the three-strikes law were spearheaded by people who were victims of violent crime. AB4 was drafted by Assemblyman Tom Baldonado Jr., whose sister was murdered. A key author of the three-strikes legislation was Mike Reynolds, whose daughter was murdered. The pain and anguish that both these politicians must feel is obvious, as is their need to turn their experience into something positive. But victims of violent crime, in general, are the wrong people to draft legislation regarding the sentence of criminals. Their perspective is inevitably skewed by their personal experience. Their prime motive behind the law is to punish, and punish as harshly as possible. But laws are not written to right wrongs done to particular people, but rather to protect society as a whole. Almost undoubtedly, both of the defendants in Baldonado's sister's case, and in Reynolds' daughter's case deserved to be put away for life. But not every defendant charged with the same crime does.
Punish or Rehabilitate?
Why do we put people in prison? Is it to deter others, or to protect society from any future crimes these people might commit? Do we do it just to exact retribution, regardless of how little it might benefit those who have been hurt by criminals? Is it to try to rehabilitate the offender, and make them better citizens? A judge considering each case on its merits can decide the most suitable punishment.
At the signing ceremony for AB4, Wilson stated that he "hoped this law would send a message to gang members that they will do hard time if they commit crimes while carrying a gun." The governor's words are words of fear. Society's fear of violent crimes and violent criminals is the genesis of both AB4 and the three-strikes law. But fear is generally not an effective tool to fight crime.
As the mother of two small children, I too want my neighborhood to be safe. But we must not let our fear rob us of our common sense. Judges need the discretion to impose a sentence that fits both the crime and the defendant. If we do not give judges that discretion, the result will be a criminal justice system that does not work, and prisons full of people that could be rehabilitated.