Prejudice prong of a 2255 motion alleging IAC
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Three strikes in California

On November 2nd, California voters will decide whether to adopt Proposition 66, which would amend our 3-strikes law. Currently, any felony qualifies as a third strike. Thus, someone who steals $400 worth of golf clubs will receive a 25-to-life sentence for that theft. Proposition would correct that injustice by allowing only "serious or violent" felonies to constitute a strike. Now let me put on a prosecutor's hat.

Imagine someone molests two children on two different occasions (two strikes). Once he's out of prison he goes into a park and exposes himself to children (not a strike under Prop. 66). Do we really want this guy kept within our organized society? Do we have any doubt that he will molest another child? Should we just let him molest a third kid (re: ruin another child's life) before we send him away for life?

Imagine someone is found guilty of two different B&E's (two strikes). His latest theft involves only a small amount of property and thus does not qualify as a serious or violent felony under Prop. 66. Do we really want to keep this person in society? How many times must someone violate the social contract before he is removed from society?

I'm still undecided, which bothers me because prosecutors and defense lawyers are united among party lines. In any event, The SoCal Law Blawg is hosting an online symposium. Please go there to post your comments on 3-strikes laws.