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State Court's Final Count on 'Three Strikes'

June 23, 1996|Charles L. Lindner | Charles L. Lindner is a past president of the Los Angeles Criminal Bar Assn

The California Supreme Court has peered over the precipice and concluded that the time is not ripe for the death of judicial independence. The final reckoning on "three strikes" has been called on account of darkness.

While California's "three strikes" law was wildly popular with a public that did not understand its ramifications, those charged with administering the law watched helplessly as the judicial system came to a grinding halt in trying to cope with a 1000% increase in potential criminal trials.

Until the state Supreme Court's decision in People vs. Romero on Thursday, there was no judicial discretion in "three strikes" cases. Hardened former district attorneys, such as Criminal Division Supervising Judge James A. Bascue or his assistant, Judge John H. Reid, found themselves unable to stop "25 year to life imprisonment" prosecutions for growing a marijuana plant on an apartment patio, or for possessing .04 of a gram of cocaine residue. One defendant got put on the "three strikes" assembly line for shoplifting a bottle of Ripple--proving that hitting the bottom is not really hitting the bottom.

In Romero, the court held essentially that the umpires had the power to call balls and strikes. The justices opined that the district attorney's pitchers had not been totally fair in their expansive view of the "strike" zone for "three strikes" defendants. Outraged by the Romero holding, Assembly Republicans immediately cried "foul" and looked for the Dragon Lady of judicial evil--former Chief Justice Rose Elizabeth Bird.

But alas, in this case, a Rose is not a Rose, but a George. Or to be more precise, Chief Justice Ronald M. George--and also a very conservative, Republican George Deukmejian and Pete Wilson appointee-laden California Supreme Court.

Imprecations to "impeach" or "recall" the new gang of seven are not exactly bouncing off the walls of the Assembly's GOP caucus room.

In Romero, the Supreme Court viewed the judiciary's role through traditional conservative lenses--i.e., the Edmund Burke-John Marshall school of institutional preservation and orderly conservative thought--as opposed to the electronic version of Robespierre's mob inflammation that often substitutes for legislative deliberation in California.

Since there was no Rose to deflower, Assembly Speaker Curt Pringle was left playing Mark Anthony to the Supreme Court's Brutus: "The court's decision drives a dagger into the very heart of the "three strikes" law . . . . This decision is outrageous, high-handed and will be opposed."

Pringle should be quietly grateful to the court. What he knows--but does not share with the public--is that California cannot afford to continue implementing "three strikes" in its current form. When Willie Brown was Assembly speaker in 1994, he confessed that, "three strikes" was crazy public policy, but that it was political suicide to vote against it. Put simply, the politicians needed the state Supreme Court to stop them from making impossible policies that the Legislature could not conceivably finance without gutting the state budget.

The one person who seemed to understand the budgetary realities of "three strikes" is Los Angeles Sheriff Sherman Block--who has been unfairly berated for acting with an integrity largely absent from law-and-order politicians. Block understands the simple axiom that one cannot make bricks without straw, nor can one manage jails without money.

In contrast, Supervisor Zev Yaroslavsky wants to cut the budgets of the sheriff, the district attorney and public defender and use the money to open the new Twin Towers jail. Yaroslavsky is not a lawyer, and apparently does not understand that if he reduces the number of cops, prosecutors and defense attorneys, nobody is going to stay in jail because the Constitution will force judges to release the defendants. It is absurd to suggest that Block wants to release prisoners. He has spent nearly 40 years putting people in jail, not kicking them out.

While Yaroslavsky robs Peter to pay Paul (or, more aptly, mugs Peter and goes through his empty pockets), District Atty. Gil Garcetti has bought the emperor's new clothes at a premium, and pretended that "three strikes" works just fine--despite public protestations by judges, defense attorneys, jurors and newspapers, and discreet opposition from senior law enforcement officials.

Garcetti, more than any other public official in California, is responsible for the Romero decision, because it has been his application of "three strikes" penalties to penny-ante crimes that proved prosecutors could not be left with sole discretion over "three strikes" life-imprisonment decisions. Of California's 20 largest counties, Los Angeles is second only to Kern in the percentage of "three strikes" cases prosecutors have filed. Sacramento, San Francisco, Santa Clara and San Diego are not even close to L.A. County's filing percentage.

Some speculate that strict enforcement of "three strikes" was Garcetti's attempt to move to the right. The O.J. Simpson case cost Garcetti support in the African American community, and losing the case has cost him support on the affluent Westside. By dousing himself in the law-and-order holy water of "three strikes," perhaps Garcetti sought to pick up GOP mainstream and backlash votes.

Meanwhile, the refrain of deputy district attorneys that they are "just following orders" on absurd "three strikes" prosecutions is now thankfully irrelevant.

The application of judicial discretion will not prevent truly evil third strikers from being sent off for life terms. Nobody likes violent criminals. Judge Martha Goldin, perhaps the last card-carrying liberal on the 239-judge Los Angeles Superior Court, retired last week. And she was about as soft on crime as Chief Justice George.*

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