Wednesday, August 17, 2005


Governor Bill Richardson has proposed life without parole as a mandatory first offense penalty in certain sex cases. Brutal cases, cases in which the victim is elderly, and cases in which the victim is a child. Criminal sexual penetration equals one strike, you're out. Mandatory. Many have commended the Governor for getting tough.

This proposal sounds tough, but it will require a lot of work to draft such legislation so that it is workable. We do not want this to be simply a feel good, flash in the pan gesture.
The fatal flaw we see is the mandatory nature of the penalty.

When we make a penalty mandatory, we take the discretion away from the Judge and give that discretion to the District Attorney (and in some instances, the law enforcement officers).
If you say that you will require the District Attorney to charge and prosecute cases as first-strike cases, you are being unrealistic. The District Attorney will exercise discretion in charging and prosecuting, and will use the first-strike law for some cases but not all that literally fall within the definition of a first-strike case.

The District Attorney would be derelict and untrue to his or her oath, if he or she used such a straight-jacket, knee jerk approach to the subject; that is, no discretion. Thus, it is a case of discretion is going to be exercised. Do we want a Judge held responsible, or leave it to the District Attorney?

If you take the definition of the proposed first-strike offense, and it included criminal sexual penetration of a female toddler, and there is no doubt that the accused did it, do we disregard all of the other circumstances? Is every such offense deserving of life without parole? Does it matter whether the offender is 18 or 81? Does it matter whether the offender is a grade school dropout, a high school dropout, a PhD, drunk or sober?

Mandatory sentences are by definition arbitrary. That is not necessarily bad, but in some cases it can lead to a gross miscarriage of justice. Consider how long the mandatory sentences for DWI and use of firearm lasted. If they are not a dead letter, they have been plea bargained away or disregarded in many cases, to avoid miscarriages of justice in the eyes of the prosecutor or Judge.

Professor Hayakawa said "Cow one is not cow two." When you define a crime and make the punishment mandatory, you are saying that cows two, three and four, etc., are the same as cow one. Do we not agree that these first-strike cases will be different in some important respects? Even so, you may say, all such offenders deserve life without parole.

We may be able to agree on this: every person who is found to be a pedophile and unlikely to reform should be in prison for life or at least under close supervision for life. The Judge should have the power and be monitored by the voters.

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