1. The Three Strike Rule and You’re Out
The three-strike rule was approved and implemented by California legislators and voters in 1994. The law requires that a sentence of not less than 25 years to life be given to three time repeat offenders. These offenders should have committed multiple grievous or violent crimes. The law was passed due to a series of murders committed by ex-felons at the time. This situation raised concerns that violent offenders were being released only for them to commit more serious and mostly violent crimes. The law also targeted second time offenders by limiting probation and requiring that their sentence be doubled after committing the second crime (Vitiello, 1997).
Repeat offenders are very difficult to manage, as they are often very unresponsive to being jailed as a form of punishment or modification of behavior. They also seem very undeterred by the prospect of spending considerable amount of time behind bars. The rationale behind the Three Strike Rule was to deter offenders from committing new crimes. It was also believed that extended sentences, also referred to as sentence enhancements, would remove the felons from the society for a longer period. This would perhaps curtail the offenders from committing additional crimes.
Since the enactment of the law, there have been several legal adjustments made to it. The adjustments made to it have emanated from some of the legal challenges it faces as a law. For instance, several lawyers and lobbyists argue about the constitutionality of the provision. The Three Strikes law made it possible for a felon to be convicted to 25 years to life imprisonment for committing a non-serious or non-violent crime as his third offence. This called into question the Eighth Amendment protection against unusual and cruel punishment.
Others have also argued that the Three Strikes provision violates the proportionality rule because a relatively minor crime could result in harsher sentences for repeat offenders. The proportionality rule states that the time served should fit the crime committed. At the same time, opponents of the provision argued that the law seemed to favor executive discretion over judicial discretion. This brought into question the issue of the separation of powers (Applegate, Cullen, Turner & Sundt, 1996).
One amendment to the law is Proposition 36 that was enacted in 2000. The act is known as the Substance Abuse and Crime Prevention Act of 2000. Majority of the California voters supported the scaling back of the law by providing drug treatment rather than life imprisonment for individuals who were convicted of drug possession. The defendants are supposed to attend and complete a local drug rehabilitation program that has been licensed by the state. If the defendant does not complete the program or violates any terms of his probation, then his probation can be revoked. The defendant will be forced to serve and extra sentence that may include incarceration.
It should be noted that there are certain individuals who are ineligible for the Proposition 36. Any offender who has been jailed within the last five years for committing a violent felony offense is ineligible. Other offenders who are ineligible include those who were in possession of a firearm while committing the crime, and those who refuse to undergo drug rehabilitation. In addition, a defendant who has two different drug convictions, and has participated in the provision before will also be ineligible for the provision.
Another adjustment to the Three Strikes law is the AB 109. This law was approved in 2011 and it grants convicted felons the opportunity to seek and participate in other rehabilitative methods rather than spend time in jail. This law affords the offenders the opportunity to prove to the court that they are unwilling to continue on their criminal path. The criminals serve a short time in county jails and then released under mandatory supervision. The crimes provided for under this amendment include possession of methamphetamine with intent to sell, forgery, drinking under the influence, and cruelty to animals. Alternatives to imprisonment include work release programs, drug and alcohol treatment, and being monitored using an ankle bracelet. The amendment gives the judges very little discretion when it comes to handing out sentences.
2. Duty of Care and Failure to Protect
Duty of care is a legal obligation to adhere to a standard of or reasonable level of care while performing an act that could result in harm to others. The doctrine also provides that in the absence of a special relationship between a government employee and the injured individual, the government official will not be liable to or culpable for the injured individual. The doctrine is also an oxy-moron because it simply means ‘duty to all, duty to none’.
In California, police officers have governmental immunity when it comes to liability resulting from vehicular pursuits of criminals. Under the Vehicle Code Section 17004.7, a police agency is not liable for any damages resulting from injury or death of individuals caused by collisions of vehicles being operated by suspects that are being pursued by the police officers backed by that police agency.
Duty of care might lead to police liability in a number of ways. Causing purposeful harm in the vehicular pursuit of a criminal is a liability for the police under the duty of care act. Purposeful harm here refers to causing harm that is unrelated to the lawful object of arrest. The liability here comes in when a police officer purposefully causes harm, injuries or death to suspects and other third parties while in a vehicular pursuit (Batterton, n.d.)
Before embarking on a high-speed chase or deciding when to terminate such a chase, a police officer must consider a myriad of factors. These factors include the nature and severity of the offence, public safety, weather and road conditions, and safer alternatives, number of people on the road, and risk to the public as well as to the police officers. If the risk to the public and to the officer outweighs the dangers to the public if, the suspect is not apprehended immediately then the pursuit should be called off. Giving these considerations precedence is what will help police officers limit their liabilities in vehicular pursuits (Goldberg, 2014).
The failure to protect doctrine is a form of negligence tort. This is whereby a police officer fails to protect an individual from a foreseeable danger. It is connected to the public duty doctrine. For instance, an intoxicated teenage driver runs over two children and kills them. Prior to the incident, the teenager was in police custody for public intoxication. However, the police release him despite the fact that he is visibly drunk. The police are liable in this case because they failed to protect the children from a foreseeable threat.
When it comes to vehicular pursuits, police officers are liable for failure to protect when they are in a situation that they can protect lives and property but fail to do so. A member of the public can seek redress if he can prove that the police had the opportunity to protect lives and property, but out of negligence decided not to take the correct course of action. It is important to note that vehicle pursuits are only justified when the suspect is deemed a threat to public safety other than the fact that police are chasing him.
Applegate, B., Cullen, F., Turner, M., Sundt, J. (1996). Assessing public support for Three-Strikes-and-You’re-Out Laws: Global vs. Specific Attitudes. Crime and Delinquency, 42(4): 517-534.
Batterton, B.S. (n.d.). Motor vehicle pursuit liability. Public Agency Training Council. Retrieved on 25/10/2015 from http://www.patc.com/weeklyarticles/vehicle-pursuit-liability.shtml
Goldberg, B.P. (2014, Sept. 17). Police pursuits accidents and liability. Retrieved on 25/10/2015 from http://www.jdsupra.com/legalnews/police-pursuit-accidents-and-liability-43618/
Vitiello, M. (1997). Three Strikes: Can we return to rationality? Journal of Criminal Law and Criminology, 87(2): 395-480.