When Governor Patrick signed a three-strikes bill without a judicial safety net, the measure became among the worst in the country. Even California’s three-strikes bill authorized judicial discretion; the judge could decide whether the prior crime should qualify as a “strike,” triggering the onerous sentence. And even with this safety valve, the bill was responsible for the worst prison overcrowding in California history.
True, the legislative conference committee members have labored to restrict the categories of crimes that would qualify for maximum sentences without parole — for which they deserve enormous credit. The ones remaining sound serious — unless one understands how these crimes are charged. A defendant can be convicted of armed robbery, for example, if he says he has a weapon, even if no weapon was shown or found, or even if he has a fake gun. Manslaughter can be excessive force in self defense. Assault and battery causing “serious” bodily injury may mean one thing to one prosecutor, another thing to a different one.
True, this bill, unlike the bills in other states, does not mean automatic life imprisonment. But since it does require the maximum sentence for the third strike, and since many of the listed offenses are life imprisonment felonies, life without parole will necessarily follow.
But whatever the categories of offenses are, they are just that — categories. Judges sentence people, not categories. To the public, those people are nameless. They are not Melissa, or Megan, or Jessica. While we mobilize to deal with horrendous crimes, no one mobilizes to deal with horrendous punishments.
So let me present some specific cases.
Take Joe, a heroin addict, convicted of three armed robberies, all convenience stores, all occurring while he was high. (Defendants’ names have been changed.) Now 38, he spent nine years in state prison for his last robbery — a sentence during which he received no drug treatment. He had no weapon in any of these robberies, but that was irrelevant; he said he had one. He was so high during the last one that he put a paper towel over his head as a “mask.” He will serve a natural life sentence if sentenced as a habitual offender.
Or Tommy, a 32-year-old Iraq war veteran suffering from post-traumatic stress disorder, which he self-medicates with alcohol and drugs. He winds up with two state sentences for barroom brawls — on assault charges that qualify as strikes. Then, under the influence of drugs, he robs a bank. He gives the teller a note saying, “give me all your money,” and is charged with stealing by confining or putting in fear — another listed crime. Though he had no weapon, though there was no injury, he is facing natural life in prison if convicted as a habitual offender. Perhaps these men deserve substantial punishment; perhaps they do not.
The fact is that taking judges out of the picture means prosecutors sentence by the charge they bring. And unlike judicial sentencing, prosecutorial decisions are not transparent. A recent study of federal sentencing, for example, raised questions about race bias in the charging of mandatory minimums.
The fact is that violent crime is down. The fact is that our country and our state — our judges — have not remotely been “ soft on crime” for the last twenty years. (The Massachusetts incarceration rate has been double the national rate. And as a nation we imprison more people than China or Rwanda.) The fact is that the parole rate has been declining long before the recent changes in the Parole Board.
No matter how much we may empathize with the families who have suffered unimagineable crimes, we don’t need this bill. As Judge John Gleeson, a former federal prosecutor said: “When people think about miscarriages of justice, they generally think big, . . . wholly innocent people have been released from jail. . . . As disturbing as those cases are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants.”
Make no mistake about this bill without judicial discretion. It will have a substantial impact — for the nameless defendants, for our already overcrowded prisons, for the cause of equal justice.
Nancy Gertner is a former US district judge.