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3-Strikes 'Fix' Would Restore Original Inequities : Bill to limit judges' discretion is misguided

July 14, 1996

Supporters of a bill to limit judicial discretion in three-strikes felony cases say it would plug a big hole punched into the law by a recent California Supreme Court decision. The legislation breezed through the Assembly last week and faces its first Senate test this week. But because of the narrow scope of the high court's ruling, SB 331 is unnecessary; it has more to do with the politics of crime in an election year than sound policies of crime fighting. Its passage would, in fact, perpetuate the inequities and high administrative costs that the original three-strikes law, established by statute and initiative in 1994, has imposed.

Californians rightly are anxious to build on the improvement in the crime rate reported in recent years. Many attribute the lower rate to the "three-strikes-and-you're-out" law. But even those who point out that three strikes took effect after crime had begun falling support the law's central tenet: that repeat criminals deserve harsher punishment than first-time offenders. The state Supreme Court, which has a majority of justices considered to have law-and-order approaches, did nothing to erode this concept in its decision.

The problem inherent in three strikes has been the law's lack of proportionality. Convictions for any third felony demanded a mandatory prison term of 25 years to life. For repeat, violent felons that provision makes sense. Their records demonstrate they must be separated from civil society. But what about a charge of petty theft that can be filed as a felony if the defendant has a prior felony record? Should stealing a slice of pizza or a pound of meat--actual cases--automatically draw the same third-strike sentence as a first-degree murder?

This disproportionality has troubled many Californians, including many judges. It has apparently also troubled many jurors; some have balked at convicting out of concern that the defendant would be sentenced to life in prison--a public facility that could better use its limited space to house repeat, violent felons.

Last month, ruling in the first of several pending challenges to the law, the California justices announced that the rigidity of three strikes troubled them too. The court upheld the appropriateness of trial judges overlooking a prior conviction when doing so is "in the furtherance of justice." The court unanimously affirmed a modest and appropriate degree of judicial discretion. Such discretion also could lead to tougher sentences. In the view of many state judges, the high court has left the core of the three-strikes law intact.

In a handful of cases since the high court decision, judges in Los Angeles County have reportedly exercised their ability to remove from consideration a prior felony charge "in the furtherance of justice," in effect permitting a sentence of less than 25 years to life. In each instance of felony conviction, the offender received a long prison term.

Nonetheless, supporters of the original three-strikes law began to draft legislation to undo the Supreme Court's decision on the very day it was rendered. The result is SB 331, introduced by Sen. Rob Hurtt (R-Garden Grove). The bill would reinstate an automatic term of 25 years to life when any one of the following circumstances prevail: The defendant was previously convicted of a serious or violent crime; the current crime is a serious or violent felony; the felon has been released from prison within five years of committing the current felony.

Hurtt's bill does focus more closely than the original three-strikes law on repeat, violent criminals. That's appropriate--these felons have earned a one-way ticket to state prison. But Hurtt's "fix" still casts too broad a net by, in effect, mandating a 25-year-to-life term for many convictions on petty charges filed as third strikes. As a result, it will produce many of the same inequities, frustrations and enormous taxpayer costs that resulted from the original legislation.

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