Three strikes works, county lawyers say

Penalty faces review by US Supreme Court
By Kelly Nix
The Californian, 10 April 2002

California’s “three-strikes” law – which can deliver a life sentence for stealing – is under fire and under scrutiny.

But despite complaints from civil rights and prisoners’ groups, prosecutors and defense lawyers in Monterey County say it’s working.

California voters resoundingly approved the three-strikes law by ballot initiative in 1994. Supporters pushed it as a way to lock up repeat violent offenders for good.

“It’s taking a large number of very serious offenders and taking them off the street,” said Terry Spitz, Monterey County assistant district attorney.

Responding to criticism that California’s law can be blindly severe, the US. Supreme Court announced April 1 that it will decide whether the penalty violates the constitutional ban on “cruel and unusual punishment.”

Oral arguments will take place next fall, and a decision is expected by July 2003. The court could throw out the law and send California back to square one.

The state’s three-strikes law is considered the toughest in the naiion. Unlike 25 other states with similar laws, California allows someone to be sent to prison for life for a nonviolent third offense, as long as it’s a felony crime.

All other states’ three-strikes laws require convictions for three violent or serious felonies before a harsh sentence for the third crime is applied. The law could be modified to include convicting someone only on a violent third strike, like other states.

The nation’s highest court agreed to review the cases of two California men, one who received life imprisonment for stealing golf clubs and another who got a life term for stealing pizza.

The court’s decision to take on the issue came after rulings in November and February by the U.S. Ninth Circuit Court of Appeals that declared life sentences for petty theft violate the Eighth Amendment of the Constitution. But Spitz said misuse of the law is avoided through careful screening of cases and discretion by prosecutors and judges.

The district attorney’s office prosecutes several three-strikes cases a week, he said. In February, the office prosecuted 15 three-strikes cases out of 253 felony cases.

Monterey County Public Defender Arthur Kaufmann said the law can be a powerful foe for defense attorneys, but said the district attorney’s office has not abused the law.

“I kind of get the quivers when I think I have to rely on a DA or a judge to determine my client’s fate in this area,” Kaufmann said. He said he defended the first three-strikes case in Monterey County involving Richard Carl Williams. Williams, a convicted burglar, was sentenced on only two strikes because the judge dismissed one. He was ordered to serve more than 20 years in prison because of other charges.

Foes cite drug cases

Salinas defense attorney Miguel Hernandez, who has defended three-strikes cases, said conscientious county judges have prevented outlandish use of three strikes.

“I think that ultimately the courts bring the cases into the correct perspective,” Hernandez said. “I think they (cases) would be a lot worse if the judges let them. (prosecutors) get away from it.”

Kaufmann also said he hasn’t seen flagrant abuse of the law.

“I must say that in this county it’s generally not abused in my experience,” he said.

Still, the American Civil Liberties Union and other anti threestrikes groups contend the law doesn’t deter violent crime and disrupts an already clogged court and prison system.

Families to Amend California’s Three-Strikes, a group that seeks to reform the law, said drug treatment and rehabilitation programs are a better way of dealing with many of those who have committed a third strike. FACT says that over 65 percent of those convicted of three-strikes are for drug-related offenses.

California now has about 7,072 offenders serving 25 years to life in prison on three-strikes convictions, by far the most of any state. Some 57 percent of them were convicted of nonviolent third felonies, including 644 who were convicted of drug possession and 340 who were convicted of petty theft, state officials said.

Spitz said many of the Monterey County three-strikes cases involve inmates already serving time at Salinas Valley State Prison in Soledad. An inmate who has been caught with a prison-made knife or drugs, for instance, could receive 25 years to life if he has two felony prior convictions.

Statistics are heavily cited on both sides of the debate. California Secretary of State Bill Jones, who wrote the state’s 1994 law, credits it with reducing crime by more than 40 percent. But a 2001 report by Washington DC.-based The Sentencing Project, which opposes three-strikes laws, says serious crime between 1993 and 1999 also dropped 41 percent in New York state, 33 percent in Massachusetts and 31 percent in Washington, D.C., all jurisdictions that have no three-strikes law.

Law’s fate in doubt

Two federal Appeals Court decisions since November have undermined three strikes.

A judicial order in November prompted the re-sentencing of Leandro Andrade, 37, a nonviolent offender who received a sentence of 50 years to life for stealing $153 worth of videotapes from several Southern California Kmart stores.

The most hotly debated aspect of the California law is that prosecutors may decide to file felony charges for crimes that are usually misdemeanors, thus triggering the three-strikes provision. The U.S. Supreme Court declined to hear a challenge to this rule in 1999, though the court’s four more liberal members issued statements suggesting they considered it a potentially serious issue.

Andrade ran afoul of this “wobbler” rule. He had been convicted of five felonies, including first-degree burglary and a drug charge, before 1995, when he was arrested for theft.

Petty theft is usually treated as a misdemeanor in California. punishable by six months in jail and a $1,000 fine. But Andrade’s previous felony convictions permitted the prosecutor to treat the offense as a felony, activating the three-strikes rule.

The Supreme Court also said it will review the case of Gary A. Ewing, who is seeking a reversal of his 25-years-to-life sentence for stealing golf clubs worth about $1,200 from an El Segundo golf course. Ewing, who has AIDS, had four prior convictions for robbery and burglary from a single case.

Kaufmann said that well-intentioned, anti-crime voters got more than they planned for when they passed the bill. “I’m not sure that the public realized when this thing was passed that the latest felony … could be something that was nonviolent,” Kaufmann said.

But Mike Reynolds, a Fresno man who authored the ballot measure, Proposition 184, that launched the three-strikes law, says lawmakers shouldn’t make concessions for nonviolent, third-strike offenders. Reynolds’ 18-year-old daughter, Kimber, was shot to death in 1992 by a convicted felon during a robbery. He said criminals know what they are getting into by committing a third strike.

“They have to have been in a cave on the dark side of the moon to not know that three-strikes is real,” Reynolds said. “How in the world are you going supposed to stop crime unless you lock up criminals?”