Fault Lines
18 October 2017

CA Prosecutors: We Changed Our Minds, Do-Over Please!

October 10, 2016 (Fault Lines) — It’s no secret that the large majority of criminal cases, approximately 95% or more, are disposed via plea bargains to avoid trials and save taxpayer money. It’s also no secret that so many jails and prisons are busting at the seams due to mass incarceration.

Prosecutors control plea bargains. Without their offer or agreement to an offer, plea bargains cease to exist. Yet, despite their previous agreements, California prosecutors are fighting for a do-over: they no longer like the bargain they struck with Morris Harris, Jr.

First, a little history. In 2013, prosecutors struck a deal with Harris to avoid a robbery charge:

As part of a plea agreement, defendant Morris Glen Harris, Jr. (defendant) pled guilty to a felony charge of grand theft from a person and agreed to admit a prior strike and receive a six-year prison sentence, in exchange for dismissal of the more serious felony charge of robbery.  More than a year later, California voters passed Proposition 47, which allowed defendant to petition for reduction of his felony grand theft conviction to a misdemeanor.

Then, in 2014, California voters approved Proposition 47. This new initiative reduced the classification for most non-serious, non-violent property and drug crimes from felonies to misdemeanors. And, it was retroactive. This meant those previously convicted of these non-serious, non-violent offenses could petition the court for relief. Their sentences could be reformed or reduced by reclassifying them as misdemeanors.

It was estimated that about 10,000 inmates would be eligible for resentencing, thus easing inmate populations and saving millions of taxpayer dollars. Additionally, those with prior felony convictions, who had already served their time, could petition to wipe away their older prior felony convictions, giving them a chance to qualify for jobs and other benefits.

The goal was simple: reduce incarceration, provide more treatment for addicts, and save about $100 million annually. In the aftermath, some unintended consequences were revealed. Some repeat offenders, like Semisi Sina, claim the new law makes it easier to commit crimes. Apparently willing to risk one-year jail terms rather than felony sentences, Sina continues to rack up petty theft convictions. But for all the Sina’s out there who might see opportunity, violent and serious offenders are serving more time:

In Los Angeles County, which has the largest jail system in the country, Proposition 47 has opened up beds for some offenders to serve more of their sentences rather than being released early. County-sentenced inmates are serving about 70% of their sentences versus 20% before the measure passed.

Removing the lower-level and non-violent offenders from incarceration frees up the resources to target and incarcerate more serious offenders. That should be a good thing, right? Saving money. Having violent offenders serve more of their sentences. Giving low-level offenders a chance at reform.

Well, not to fast.

After Proposition 47 passed, Harris petitioned for relief from his six-year theft plea bargain. Pursuant to Proposition 47 (remember, it’s retroactive), Harris is eligible for resentencing. His “theft” is now a misdemeanor rather than a felony. And, as a misdemeanor, Harris would have a maximum one-year sentence.

Prosecutors challenged Harris’s petition for relief claiming that was not the bargain they reached with Harris. The government argued if he was granted relief, they should be able to withdraw their plea bargain and reinstate the original charge.

The appellate court agreed with the government:

Under the circumstances of this case, we conclude that reduction of the plea-bargained felony charge to a misdemeanor under Proposition 47 deprives the People of the benefit of the bargain of its plea agreement.  Therefore, the People are entitled to withdraw from the plea and reinstate the previously-dismissed charges, thus returning the parties to the status quo ante.

Prosecutors claimed they couldn’t have possibly known the law would change, so they shouldn’t be held to their agreement when it did. Interestingly, lawyers know, or should know, that law changes all the time. Jails offer good time credits. The rules for good time change regularly. Prisons offer parole. The rules and likelihood of parole change often. Sometimes the change benefits the incarcerated defendant, sometimes not.

Due to overcrowding, sometimes inmates serve only 20% of their sentence. With less crowding, they might serve 70% or more. It’s all variable. Yet, it normally doesn’t change the nature of the plea bargain. Sure, prosecutors know, for example, that a particular jail is currently offering 3 for 1 good time credit so they account for that in making their “bargain.” Essentially, prosecutors often guess at how much time a particular defendant will actually serve in making their recommendation under a plea bargain.

So what happens when the prosecutor’s guess is wrong? They ask for a do-over!

The People did not contest defendant’s claim that he was entitled to relief under Proposition 47.  Instead, it filed a motion to withdraw from the plea agreement and reinstate the previously-dismissed charges.  The People argued that defendant was entitled to reclassification of his conviction, but the result would deny the People the benefit of the bargain of the negotiated plea agreement, thus entitling it to withdraw from the agreement.

With the appellate court siding with the government, Harris has taken his case to the California Supreme Court. In a hearing last week, the justices appeared unwilling to allow prosecutors to withdraw their agreement.

John F. L. Pomeroy, arguing for the Los Angeles district attorney, said no one imagined that “a six-year prison term could become six months in the county jail.”

Maybe not, but did the prosecutor really lose the benefit of its bargain? They offered a reduction in charges. They offered a lesser sentence. They saved time and resources by not trying the case. They made the bargain and achieve a benefit – their benefit: another case off the docket, less time in trial, not being required to prove up their case beyond a reasonable doubt to a jury. They made an educated guess as to how much time Harris might actually serve. And they were wrong. Now they don’t like it. Imagine if all bargains are re-opened if the prosecutor doesn’t like the result. Defendants don’t normally get a do-over – not even where their time grows from 20% to 70%. Yet, prosecutors want to be treated differently.

Justice Goodwin Liu appeared skeptical of the L.A. prosecutor’s arguments.

“Courts are not going to reopen these things,” Liu said.

Under the prosecutor’s theory, thousands and potentially hundreds of thousands of cases would be in jeopardy.

An estimated 750,000 cases in Los Angeles were potentially affected by the 2014 ballot measure, [Harris’s lawyer] said. If the court allowed prosecutors to unravel previous agreements now, he added, it would mean that only 5% of defendants benefited from Proposition 47.

Voters approved the measure – knowing it would be retroactive, knowing it would allow resentencing. So why should prosecutors get a do-over? Why would the courts set a precedent to undo all those bargains?

Justice Carol A. Corrigan said that Proposition 47 created “enough trouble” for the courts “without resurrecting all those cases” resolved by plea bargains.

“When you engage in a plea bargain, don’t you run the risk that the law may subsequently change?” she asked.

The court will issue a decision in the case within 90 days.

Justice Corrigan hits the old maxim: caveat emptor, let the buyer beware. In this case, the prosecutor bought a plea. The prosecutor got the benefit of that plea. He alone is responsible for knowing the consequences of his purchase.

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  • Will
    4 December 2016 at 7:37 am - Reply

    The government always want concessions it would never give the people. Wait!! That doesn’t make sense…THE PEOPLE ARE THE GOVERNMENT AND WE DANG WELL NEED TO REMEMBER THAT!! WE THE PEOPLE give the gov’t its authority and we can take it away when need arises. Sorry Uncle Sam, but no do-overs for you!!!