Critics Dissect Wilson Anti-Crime Plan : Justice: Legal experts say harsh sentencing as urged by the governor could backfire and increase leniency in courts. Judges would lack flexibility and jurors might balk at severe penalties, they contend.

By MAURA DOLAN

Jan. 7, 1994 12 AM PT

TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — Gov. Pete Wilson’s harsh proposals for combatting crime might play well to a violence-weary public. But legal scholars said Thursday that they would strip needed flexibility from the law and possibly even backfire by triggering more leniency.

“Whenever you are making mandatory sentencing decisions,” said William Talley of Harvard University’s Criminal Justice Institute, “you are making it impossible for a judge to say this person is different from someone else.”

Scholars note that the United States already has the highest incarceration rate in the industrialized world and that violent crime has decreased in the last few years.

“There is very little evidence that increasing the harshness and length of incarceration on top of (current law) accomplishes anything,” said Stanford University law professor Robert Weisberg. “Very often,” he added, “it backfires.”

Wilson on Wednesday proposed life sentences for first-time rapists, child molesters and some arsonists, and mandatory life imprisonment for criminals who commit three violent felonies or two felonies with a gun.

But the stiff sentences could actually spark jury acquittals and plea bargains, Weisberg said, “because actors in the system might just find the sentences intolerably high.”

Plea bargains occur when a defendant agrees to plead guilty to a lesser offense than the one initially charged or receives assurances of more lenient sentencing in return for pleading guilty. Usually plea agreements are arranged to expedite a case.

Harvard law professor Alan Dershowitz said California has already become “the laughingstock of the world” because its juries are unwilling to convict people who are “obviously guilty.” He cited the case of the Menendez brothers, whose juries have been deliberating for more than two weeks.

“The very toughness sometimes makes it easy to win (an acquittal),” he said, because juries, especially in diverse California, do not convict when they believe the sentence does not warrant the crime.

Dershowitz was particularly concerned about Wilson’s proposal of life sentences for first-time child molesters and rapists, who he said have the highest rates of false convictions.

“The risk of innocent people being put away for life is substantial,” he said.

Even state Atty. Gen. Dan Lungren said he has qualms about sentencing first-time child molesters to life because it might make family members reluctant to report incest.

Mandatory federal sentencing laws that dictate how much prison time a judge may order already have produced what Weisberg called “unbelievably harsh and unfair sentences” for drug offenders. The sentencing guidelines have prompted some federal judges to leave the bench in disgust.

Close to half the inmates in high-security federal prison cells are now drug offenders, “and not all of them are that serious,” said Harvard law professor James Vorenberg.

“It means you are using the precious resource of prison space for the wrong people,” he said. “That is the great risk. “

But scholars generally agree that the crime package probably would survive constitutional challenges: The U.S. Supreme Court has placed few restraints on the ability of legislatures to decide what is appropriate punishment.

The highest court has balked at sentencing people who have repeatedly committed low-level crimes to life without parole, Weisberg said, but “the fact Wilson is talking about violent felonies would probably satisfy (the court).”

The legal experts said they doubt that Wilson’s proposals would deter violence because most criminals do not carefully calculate the risks beforehand.

UCLA law professor Peter Arenella said many studies have found that people contemplating crime primarily try to minimize the chances they will get caught and convicted.

But legislatures do not have the resources or the latitude to offset that by adding more police, a tactic whose effectiveness is debatable, or by limiting constitutional protections for defendants.

A law aimed at repeat offenders should be structured extremely narrowly to net only the most predatory, violent criminals, the experts said.

“It is certainly true that a very small number of youthful offenders commit a disproportionately large number of violent offenses,” Arenella said. “The problem is our ability to identify who they are and distinguish them from other individuals who don’t pose the same kind of risk.”

This problem is magnified for first-time offenders because “we simply lack the predictive ability,” the UCLA professor said.

Stanford’s Weisberg said it might be possible theoretically to write a law that would be aimed only at violent criminals proven likely to commit the same crimes again, “but it takes a lot of wisdom to devise such a law.”

“You have to imprison a lot of people who don’t pose such threats--as least they don’t after a decade in prison--to ensure the Richard Allen Davises of the world don’t get out,” he said, referring to the accused kidnaper and confessed killer of Polly Klaas. “The cost of doing that may be much greater than the benefits.”

Dershowitz said the criminals who strike out in most states that have such statutes are the “stupid, blundering, career minor criminals.” The repeat killers and rapists “know how to plea bargain and play the game,” he said. Still, he said, he believes it would be possible to craft a law narrowly enough to cover only serial violent offenders, although no state has yet been successful in doing so.

“States have never been willing to make it that narrow,” he said. “They all end up in the political process broadening it.”

Wilson’s proposals will not succeed because they attack “the crime, rather than the criminal,” he said, and “every criminal is different.”

“If every one of Wilson’s proposals were enacted tomorrow,” he said, “the streets wouldn’t be any safer.”

Times staff writer Dan Morain contributed to this report from Sacramento.