Softer Three-Strikes Law Brings Wave of Appeals

By , Staff writer of The Christian Science Monitor

Fay Arfa, a long-time criminal attorney here, is readying a petition asking a Superior Court judge to reconsider the 25-years-to-life sentence slapped on her client last December. Her client's crime: stealing five bottles of liquor from a supermarket.

"I believe that no one in that trial courtroom felt that such a severe sentence was justifiable," Ms. Arfa says. "But because it was my client's third offense, the judge had no choice."

Whether the judge will honor Arfa's request is a question hanging over thousands of similar cases as California begins to grapple with the consequences of a June 20 ruling by the California State Supreme Court, which eased sentencing constraints under the nation's first "three-strikes" law.

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The unanimous decision returns to judges the authority to disregard a defendant's prior convictions if they thought a mandatory prison sentence would be too harsh.

The ruling takes some of the teeth out of a three-strikes sentencing law that is considered the toughest in the country. It may also slow the adoption of similar laws in other states - and perhaps influence how aggressively such statutes are applied in states that already have them.

Victims-rights activists and state Republican leaders - including Gov. Pete Wilson, who signed the legislation in March 1994 - have condemned the Supreme Court action and have promised amendments that would restore tougher mandates. They contend that since the law was enacted, crime in California has dropped.

"We cannot tolerate a situation which permits judges who are philosophically unsympathetic ... to reduce the strong sentences that the voters intended to impose on habitual criminals," Governor Wilson says.

But critics, who charge that prisons are overcrowded and dockets clogged as a result of the law, say the court has rightfully restored power to judges.

"The California State Supreme Court has restored some balance and rightful discretion to judges in determining an appropriate sentence for someone who has committed a third felony that is in no way violent," says Robert Pugsley, law professor at Southwestern University School of Law in Los Angeles.

Under California's three-strikes law, repeat offenders face hard-and-fast mandatory sentences, and third-time offenders face 25 years to life in prison

But the immediate consequences for the California court system were overwhelming. Enormous backlogs of criminal cases began clogging scheduling dockets as first- and second-time offenders who feared the severe consequences of a third conviction began contesting their cases in trial rather than plea bargaining. The soaring numbers caused long delays and spilled over into civil jurisdictions, while growing cadres of high-risk prisoners forced the early release of scores of inmates being held on less serious crimes.

"The law created the single greatest increase in workload in the 30 years I've been associated with the criminal justice system," says Michael Judge, chief public defender for Los Angeles County.

There was also public outrage at well-publicized cases in which minor offenses put convicts behind bars for good. "I believe it is unconscionable that a civilized society deals with nonviolent offenders by putting them behind bars for life," Arfa says.

The new ruling is expected eventually to ease some of the backlog and jail-overcrowding problems. But because the decision by the seven justices is retroactive, it also allows an estimated 16,000 to 20,000 multiple felons to appeal the sentences given them since the law went into effect. Other states are eyeing the California decision to see if any lessons apply to them.

"I hate to say [it], but this is going to be first and foremost a workload issue," says Robert Mimura, executive director of the Countrywide Criminal Justice Coordination Committee. "We anticipate a huge clog in appeals and perhaps on longer stays in jails while these motions are litigated."

But many observers here hasten to add that the widespread public notions that the "three strikes" law has been thrown out are not well founded.

"I don't see how this is going to signal a huge change in the way we sentence," says Robert Parkin, assistant presiding judge for Los Angeles Superior Court. He says most judges know the public is strongly behind putting third-time criminals behind bars for good. He says only in cases where third offenses are relatively minor will leniency be granted.

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