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Prosecutorial Discretion and Three-Strikes Laws: Impact on Felony Charges, Papers of Criminal Justice

The role of prosecutorial discretion in the application of three-strikes laws, focusing on the increase in the proportion of three-strikes arrestees prosecuted for misdemeanors. The study uses data from mcmaster university's journal of law and economics and finds a significant increase in the proportion of defendants arrested for three-strikes crimes who were prosecuted for misdemeanors following the imposition of three-strikes laws. The document also discusses the criteria california prosecutors use when deciding to strike previous strike convictions in three-strike cases.

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Uploaded on 08/18/2009

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Making the Crime fit the Penalty: The Role of Prosecutorial Discretion
Under Mandatory Minimum Sentencing [Edited]
David Bjerk
McMaster University
Journal of Law and Economics, vol. XLVIII (October 2005)
Fulltext available at: http://socserv.socsci.mcmaster.ca/bjerk/SentencingJLE.pdf
…As discussed above, if prosecutors have discretion over prosecution charges, they
may respond to a law increasing the mandatory minimum sentence for certain crimes by
prosecuting a greater fraction of those arrested for the targeted crimes for lesser crimes
not covered by the law. I examine whether there is an increase in the
proportion of three-strikes arrestees who were prosecuted for misdemeanors following
the imposition of the three-strikes laws.
Table 3 shows the proportions of felony defendants prosecuted for misdemeanors
before and after the imposition of the three-strikes laws for different groups. The first
row reports that the proportion of defendants arrested for three-strikes crimes who were
prosecuted for misdemeanors rose from 5.5 percent before the passage of the three-strike
laws, to 9.3 percent after the passage of the three-strike laws. This change represents an
increase of over 70 percent.16 By comparison, of the defendants residing in states that
passed three-strikes laws but who were arrested for other felonies besides three-strike
crimes, the proportion prosecuted for misdemeanors stayed roughly constant, moving
from 12.9 percent before the passage of the three-strike laws, to 12.2 percent after the
passage of the three-strike laws. As shown in the last row in Table 3, this means that,
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Making the Crime fit the Penalty: The Role of Prosecutorial Discretion

Under Mandatory Minimum Sentencing [Edited]

David Bjerk McMaster University Journal of Law and Economics, vol. XLVIII (October 2005) Fulltext available at: http://socserv.socsci.mcmaster.ca/bjerk/SentencingJLE.pdf …As discussed above, if prosecutors have discretion over prosecution charges, they may respond to a law increasing the mandatory minimum sentence for certain crimes by prosecuting a greater fraction of those arrested for the targeted crimes for lesser crimes not covered by the law. I examine whether there is an increase in the proportion of three-strikes arrestees who were prosecuted for misdemeanors following the imposition of the three-strikes laws. Table 3 shows the proportions of felony defendants prosecuted for misdemeanors before and after the imposition of the three-strikes laws for different groups. The first row reports that the proportion of defendants arrested for three-strikes crimes who were prosecuted for misdemeanors rose from 5.5 percent before the passage of the three-strike laws, to 9.3 percent after the passage of the three-strike laws. This change represents an increase of over 70 percent. 16 By comparison, of the defendants residing in states that passed three-strikes laws but who were arrested for other felonies besides three-strike crimes, the proportion prosecuted for misdemeanors stayed roughly constant, moving from 12.9 percent before the passage of the three-strike laws, to 12.2 percent after the passage of the three-strike laws. As shown in the last row in Table 3, this means that,

relative to other felony defendants, defendants arrested for three-strikes crimes became 4.5 percentage points more likely to be prosecuted for a lesser misdemeanor charge following the imposition of the three-strikes laws. This increase is statistically significant at the one percent level. Jennifer Edwards Walsh examines the criteria California prosecutors use when deciding for whom to apply this added discretion over previous strikes. In a direct survey of District Attorney offices in 25 of the 58 California counties (accounting for over 75 percent of the state's total share of three-strike convictions), Walsh finds that 92 percent of these District Attorney offices had used their discretion to drop a strike in a three-strike case. The most common reason given by the DA offices for why they would choose to strike a previous three-strikes conviction in a three-strike case was that the arrest offense “was trivial in nature” (74%), followed by the prior strikes being “remote in time” (65%), “defendant has no recent criminal history” (65%), and “prior strikes all from singular incident” (65%). “Case likely to end in Acquittal” placed 8th out of the 10 choices with 43.5%. Hence, California prosecutors choose to circumvent the three strikes law by striking previous strike convictions for defendants who are arrested for lesser crimes and have more remote and less serious criminal histories. V. Summary and Conclusion In analyzing the use of this type of prosecutorial discretion with respect to several three-strikes type sentencing laws implemented throughout the 1990s, I find that prosecutors become almost twice as likely to lower a felony arrest charge to a misdemeanor for the purposes of prosecution, when conviction on the initial arrest charge would have lead to sentencing under a three-strikes law. The available evidence suggests that prosecutors generally initiate such behavior due to their own preferences and resource constraints. In generalizing these findings to other mandatory minimum sentencing laws, it is worth noting that three-strikes laws target individuals arrested for serious crimes with extensive criminal histories. This means that the group of defendants arrested for three strikes crimes consists of a very serious group of offenders. Since prosecutors may be less inclined to let these serious offenders back out on the street, the use of prosecutor discretion to circumvent three-strikes laws may be much more rare than the use of prosecutor discretion to circumvent mandatory minimum sentences targeting less serious crimes, such as drug or firearm possession. Hence, the effects of prosecutorial discretion with respect to three-strikes sentencing laws may provide a lower bound on the degree to which prosecutor discretion is used to mitigate the effects of mandatory minimum sentencing laws. The findings of this paper suggest that, besides some of the ethical concerns that have been raised concerning certain mandatory minimum sentencing laws, these laws may also be associated with pushing judicial discretion to less visible parts of the judicial system. Moreover, where advocates of mandatory minimum sentencing laws argue that such laws can decrease sentencing variation across criminals who commit similar crimes (and have similar criminal histories) and eradicate overly lenient sentencing, such