'Three strikes' law: Is it too-cruel punishment?

By , Staff writer of The Christian Science Monitor

When it debuted, California's three-strikes-and-you're-out sentencing law represented the toughest - and most controversial - crackdown on criminals in modern history.

Forty states since then have adopted similar measures, which lock up defendants for life after their third felony conviction, often crowding court dockets and prisons in the process.

Now, though, the three- strikes law faces what may be its biggest test since voters approved it seven years ago. For the first time, a US appeals court has struck down a long sentence imposed under the law, saying it amounts to cruel and unusual punishment. The ruling is already igniting debate over the merits of strict mandatory sentences.

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"This finding has put the future of three-strikes laws in limbo," says Robert Pugsley, a constitutional scholar at southwestern School of Law, Los Angeles.

"Whichever way this ends up going," says Mr. Pugsley, "will either reinforce the tendency of other states to overcriminalize [third-strike felonies] and oversentence them, or give [the states] a warning they can't do that anymore."

While the ruling by a panel of three judges did not invalidate the California law, the case may yet wind its way up to the US Supreme Court and make other judges more reluctant to hand down sentences that may later be appealed.

The ruling may also unleash a wave of appeals from the estimated 350 to 3,500 other California prisoners who received comparable sentences in similar circumstances.

"It's going to lead to many challenges by those currently in prison whose third strikes were also minor crimes," says Erwin Chemerinsky, a constitutional-law scholar at the University of Southern California and the lawyer who represented the defendant in this case, Leandro Andrade.

Mr. Andrade stole videos worth $153.54 from two K-marts and wound up with a sentence of 50 years in prison with no possibility of parole.

Usually, state law treats a petty theft (anything under $400) as a misdemeanor, punishable by up to six months in jail. But Mr. Andrade had been convicted of several prior offenses, all nonviolent. The prior record enabled his theft to be upgraded to a felony under the California penal code.

Once labeled a felony, the offense mandated the harsher sentence under California's three-strike law.

Mr. Chemerinsky says about 350 people whose third strike was a similar petty theft, are serving sentences in California of at least 25 years to life.

Alex Ricciardulli, deputy public defender for Los Angeles County, says 7,000 inmates are now in state prison serving 25 years to life under three-strikes laws. In about half these cases, the final strike was "not serious" and "nonviolent," he says.

Further appeals?

If appealed, the appellate court's 2-to-1 decision could be reheard by the full Ninth Circuit Court of nine judges. It could also move from there to the US Supreme Court, which, many observers say, has been looking for the right case to address three-strikes laws.

Besides court appeals, civil libertarians say a new dialogue between California citizens and lawmakers should ensue, and that the state should clarify its intentions with new laws or sentencing guidelines.

"A lot of people have been totally surprised with the number of stories coming out that the law is a lot broader than just punishing serious violence," says Mary Broderick, executive director of California Attorneys for Criminal Justice.

The law was passed after the high-profile murder of Polly Klaas, a Petaluma, Calif., girl who was abducted and murdered by a convicted child molester. Amid public concerns about rising crime, former Gov. Pete Wilson (R) made the law's passage a centerpiece of his reelection agenda.

But not long after citizens overwhelmingly approved the initiative, stories began surfacing of criminals being sentenced for 25 to 50 years and longer for third offenses that were not violent. Jury members, after returning guilty verdicts for minor crimes, found out the defendants in their cases had been given harsh sentences.

"We thought we were giving this guy about two years for burglary, until the [district attorney] told us later that because of 'three strikes' the judge's hands were tied," says a Santa Monica juror of a 1997 burglary case. "They gave him 25 years; we were all horrified," says the juror, who asked not to be identified.

In addition, police began complaining about defendants who wound up dead, after resisting arrest rather than going back to jail for good.

The volume of three-strikes cases also clogged court dockets and drove up the costs of jailing repeat offenders in already overcrowded prisons.

Other observers say that cracking down on criminals, whether or not their third crimes were petty, was indeed the original intent of the law.

They expect that higher courts will support their position. One is current California secretary of state and gubernatorial candidate Bill Jones, who authored the three-strikes law. He is pressing the state attorney general to "initiate a rapid and aggressive appeal."

"If this decision is not overturned, we risk returning to the revolving-door prison system that caused California's crime rate to go through the roof," Mr. Jones told the Los Angeles Times.

Prosecutorial discretion

Still others hold a middle position, saying each of the state's 58 county district attorneys has the discretion to decide how to charge criminals.

"Cases like Andrade's are the exception, not the rule," says Tom Orloff, president of the California District Attorney's Association. "The fact of the matter is that most DAs have used better discretion in avoiding situations like this. Overall, crime has dropped in California, and three strikes is the reason why."

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