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COLUMN ONE : Courts Toss Curveballs to '3 Strikes' : Times study finds only 1 in 6 eligible defendants gets 25 years to life as judges, prosecutors ease sentencing. But many get longer terms than they would have previously.

SIX MONTHS OF 'THREE STRIKES'. A tough new law meets reality in L.A. County courthouses. First of two parts

October 23, 1994|RICHARD LEE COLVIN and TED ROHRLICH | TIMES STAFF WRITERS

Los Angeles County judges and prosecutors have considerably softened the blow of California's new "three strikes" law, sending only 1 in 6 eligible defendants to prison for the 25 years to life prescribed for three-time losers.

In the six months since the law was enacted, in fact, defendants in cases involving third strikes were just as likely to be sentenced to a year in jail as they were to be put away for life, a study by The Times found.

The Times reviewed all 98 third-strike cases that were resolved between March, when the law took effect, and Aug. 31. Defendants in most of these cases were shoplifters and drug abusers. Fewer than one in five were accused of crimes of violence.

Although most defendants were spared life sentences, many received longer terms than they would have before "three strikes" because the threat of life terms gave prosecutors more leverage to negotiate tougher plea bargains.

For example, a man who stole diapers from a supermarket was sentenced to eight years in prison, and another was sent away for eight years for possession of a rock of cocaine and a bag of marijuana.

Deciding whether repeat offenders should get life, a year in jail, or something in between can be a wrenching experience for judges and prosecutors. "When talking about a person's life, there's no such thing as an easy decision," said Philip H. Wynn, head deputy district attorney in the Van Nuys office.

More than 500 crimes that are felonies under California law, ranging from placing a bet in an office pool to murder, can constitute a third strike under the law if an offender has been previously convicted of two or more serious or violent crimes.

The law makes no distinction between offenses. As a result, many judges and some prosecutors have tried to draw their own lines. Some have differentiated between violent and nonviolent crimes, while others have given special consideration to defendants whose most serious offense was far behind them, The Times found.

For example, Judge Carol J. Fieldhouse, a key member of the Los Angeles County Superior Court's special committee to study the impact of "three strikes," said that although violent criminals deserve to be sent away for life, people he considers to be "nuisances" do not.

"I refuse to dispense injustice," Fieldhouse said, adding that judges must find ways to "outwit" the law. "I wasn't put here to annihilate people because some politically hungry morons wanted (me) to."

The "three strikes" law signed by Gov. Pete Wilson in March was intended to toughen sentencing of repeat offenders by limiting the discretion of judges and prosecutors.

Under the law, which voters will be asked to reaffirm on the Nov. 8 ballot in the form of Proposition 184, criminals with one prior conviction for serious or violent crimes are supposed to be sentenced to double the usual term. Criminals with two or more such "strikes" who commit any new felony are subject to a prison term of triple the usual amount of time or 25 years to life, whichever is greater.

The law, however, also preserves some discretion for prosecutors by giving them the authority to ignore a defendant's past strike in the "furtherance of justice." Judges were not explicitly given that authority.

A Times analysis of the 98 resolved third-strike cases found that although some felons are getting longer prison terms, judges and prosecutors have exercised their powers to moderate the impact of the new law. In court and in interviews, they emphasized their obligation to act in the interest of justice within the constraints of the law.

"You want to bend over backward to be fair to community, the intent of legislation, the spirit of the law and, at the same time, be fair to the person charged with the crime," said Wynn of the district attorney's office.

Dist. Atty. Gil Garcetti said in an interview that some of his prosecutors find it traumatic to seek a life sentence for a minor offense, even if a defendant's criminal history is serious. But, he said, prosecutors have to adjust their "mind set" to the community's growing impatience with business as usual.

What prosecutors "feel is justice may be at odds with what the community wants or expects in terms of justice," he said.

The author of the "three strikes" law, Assemblyman Bill Jones (R-Fresno), indicated that he was not surprised by The Times' findings. Acknowledging that district attorneys and judges retain considerable discretion, he said he never expected that everyone who was eligible would get life terms. But he said he believes the law is effective as a deterrent by telling would-be three-time losers: "Stop committing felonies in California."

In the cases examined by The Times, judges and prosecutors largely agreed on how to handle more serious offenses, such as residential burglary, robbery or rape. But judges concluded that prosecutors did not show enough defendants the compassion they deserved. In those cases, judges acted on their own to reduce penalties.

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