A Return of Judgment to the Judging Process

“In the furtherance of justice.” Relying on those five words, the California Supreme Court Thursday unanimously called a halt to the unfairness and massive chaos that the “three strikes and you’re out” law has wrought since it took effect two years ago.

The court held that if a judge believes a life sentence for a repeat felon under the three-strikes law would be too harsh, he or she is not required to impose it. The law specifies, upon conviction for a felony, a sentence of 25 years to life for anyone with two previous convictions for a violent or serious felony. In Thursday’s sensible ruling, the state court restored the tools most necessary for a functioning bench: judgment and discretion.

The three-strikes law was adopted in a highly emotional 1994 campaign, with proponents insisting that California had enough of crime and that repeat violent criminals should be put away--for good. The dramatic case of Polly Klaas, abducted from her home and killed, we now know by an ex-convict, fueled the anger. Passage of the law by initiative showed strong support for almost any crime crackdown with no ambiguities in an increasingly violent society.

In the face of this political wave, the opposition, pointing out flaws in the three-strikes notion and the harshness of the mandatory terms for third-strike offenders, was overwhelmed by the majority demand for what most saw as proper justice. That demand overrode the opposition’s insistence that the law’s most extreme sentences be reserved for those convicted of a third violent or serious felony.

The law has incarcerated for life individuals whose third strike was stealing a piece of pizza, stealing a package of meat or possessing a small amount of cocaine. Indeed, three-quarters of the 18,735 second- and third-strike felons now in state prison landed there on conviction for a nonviolent crime.

Have the crimes of these individuals proven they are a threat to society? Should they be incarcerated? Absolutely, on both counts. But should each automatically draw a life term for a third conviction? That extreme provision of the law has raised profound questions of fairness, not only for the Supreme Court but for trial judges of every political persuasion, a growing number of whom were balking at imposing sentences so inappropriate to the crimes.

Though California voters enthusiastically embraced the three-strikes law by passing an initiative version in November 1994 following legislative passage earlier that year, jurors have often resisted it. In a recent Los Angeles trial, the jurors--after learning their decision would be a third strike--petitioned the judge for leniency on behalf of a defendant who would have received 25 years to life for attempting to steal three guitars.

By returning to judges some of their traditional discretion over sentencing, the Supreme Court’s decision should also restore for jurors and the public a measure of proportionality the criminal justice system now lacks. A judge will be able to strike consideration of prior felonies to reduce a potential sentence if such a reduction appears merited by the facts of the case. Sentencing discretion is a cornerstone of our justice system.

Meanwhile, the law has caused extreme fiscal problems for state and local agencies. Implementation of three strikes has been nothing less than a train wreck in slow motion. Because fewer defendants are pleading guilty in the face of three strikes, opting instead to take their chances in a trial, the criminal case backlog in the courts has grown considerably. It has caused prosecutors to avoid filing misdemeanor and low-level felony cases and added to delays in civil cases.

The three-strikes law also has increased crowding in county jails, leading to early release of other inmates. State prisons now house 184% more inmates than they were built to contain. Swelling caseloads overwhelm county prosecutors and judges and, since neither voters nor the Legislature appropriated new funds to implement the law, these strains have only increased the fiscal pressure on other county services.

In the short run, the court’s decision could exacerbate some of these problems by generating as many as 20,000 appeals from convicted felons. In addition, legislative efforts to reverse the ruling are anticipated. But in the long run, this decision should provide a clear signal that fighting crime requires responsible legislation.