Recent article by Jeffrey Hayden: "Revisiting the Three Strikes Law"

Three strikes laws are a category of statutes enacted by state governments in the United States, beginning in the 1990s, to mandate long periods of imprisonment for persons convicted of a felony on three (or more) separate occasions. The term is borrowed from baseball and is generally colloquial in its usage, as such statutes are most often known officially as mandatory sentencing laws or some variant thereof.

The underlying philosophy of these laws is that any person who commits more than two felonies can justifiably be considered incorrigible and chronically criminal, and that permanent imprisonment is then mandated for the safety of society.

While the practice of imposing longer prison sentences on repeat offenders than on first-time offenders who commit the same crime is nothing new in American states (New York State, for example, has a Persistent Felony Offender law that dates back to the late 19th Century), such sentences were not compulsory in every single case, and judges had much discretion in what term of incarceration to impose.

California actually enacted two distinct three strikes laws. The legislature enacted a three strikes law in the March of 1994. Eight months later, the voters approved Proposition 184, which enacted almost the same law which the legislature had rushed into being. The two schemes are almost identical, except that each has a list of felonies which are designated as serious or violent, and there are some differences between the two lists.

Most citizens are in favor of the idea of long prison sentences for repeated violent offenders; however, the reach of the three strikes law often exceeds what those same citizens expect when they voice their support of these laws. For example, while some states require all three felony convictions to be for violent crimes in order for the mandatory sentence to be pronounced, California - mandate the enhanced sentence for any third felony conviction so long as the first two felonies were deemed to be either "violent" or "serious," or both.

This leads to criticism that the law leads to unjust results, either because the current offense doesn't warrant such sanctions, or because the harsh punishment isn't warranted because the so-called strike priors involve only a minimal threat to society.

Some unusual scenarios have arisen as such offenses as felony petty theft)where the person committing such a crime has a prior conviction for any form of stealing, including robbery or burglary, no matter how long ago the original crime had been committed) has led to some defendants being sentenced to 25 years to life in prison for stealing such items as compact discs or even slices of pizza, prompting harsh criticism not only within the United States, but also from outside the country as well.

Moreover, some crimes which historically might only marginally qualify as a felony are now considered to be violent or serious, such as suggesting a witness not report a crime (Penal Code section 136.1) or threatening to commit a crime which could result in a serious injury, even though there is neither an attempt or any intent to carry out the act (Penal Code section 422) are now sufficient to result in a strike. Another criticism notes that often a burglary, a crime which could result in the theft of something having little or no value, is perceived as being unjustly included as one of the three "strikes."

On March 5, 2003, the U.S. Supreme Court held by a 5-4 majority that such sentences do not violate the Eighth Amendment of the U.S. Constitution, which prohibits "cruel and unusual punishment." In two separate opinions handed down on the same day, the court upheld California's three-strikes law against an attack on direct appeal from conviction, Ewing v. California, 538 U.S. 11 (2003), and a collateral attack through a petition for habeas corpus, Lockyer v. Andrade, 538 U.S. 63 (2003).

Several challenges to this aspect of the California law were pending, in both state and federal courts, as of the spring of 2004, but on November 2, 2004, the state's voters rejected an amendment to the statute (offered in Proposition 66) which would have required the third felony to be either "violent" and/or "serious" in order to result in a 25-years-to-life sentence.

Some critics have argued that three-strikes laws violate the Double Jeopardy Clause of the U.S. Constitution, though few judges take this argument seriously. In the vast majority of U.S. courts, it is generally accepted that double jeopardy is not a problem because the defendant is not being retried or punished again for the set of facts giving rise to the previous convictions; the fact of the previous convictions is merely being used as evidence of the defendant's incorrigible character in order to enhance the sentence for the third conviction.
Efforts to reform the Three Strikes Laws continue throughout the state.

Relief From the Effect of Strike Priors
The courts have rejected challenges to the constitutionality of the Three Strikes law. One constitutional attack was successful, however. In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, the Supreme Court found some merit in the argument that the constitutional requirement of separation of executive, legislative, and judicial powers might be violated unless the statute were interpreted to allow judges to dismiss and disregard prior convictions "in furtherance of justice" on their own initiative. The Court gave the statute that interpretation and so avoided the constitutional problem. The ruling that trial courts may strike prior convictions in furtherance of justice is not a broad grant of discretion to judges to avoid the Three Strikes law, however. The Supreme Court has held that a current or prior conviction may only be dismissed if "in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had presently not committed one or more felonies and/or had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)

In particular, a court may not strike a sentencing allegation "solely 'to accommodate judicial convenience or because of court congestion' " (Romero, supra, 13 Cal.4th at p. 531, quoting People v. Kessel (1976) 61 Cal.App.3d 322,326), or "simply because a defendant pleads guilty" (Romero, supra, 13 Cal.4th at p. 531), or because of "a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' " (Ibid., quoting People v. Dent (1995) 38 Cal.App.4th 1726, 1731.)

A court also may not strike a strike in order to make the defendant eligible for commitment to the California Rehabilitation Center. The Three Strikes law provides that those who come under its provisions are ineligible for CRC commitment. The Sixth District ruled in People v. Carrillo, 87 Cal.App.4th 1416, decided March 27, 2001, that although a court may dismiss a strike and take the defendant out of the ambit of the Three Strikes law, it could not dismiss a strike on the condition that the defendant complete a commitment to the CRC, or later reinstate the conditionally-dismissed strike.

Although in other situations courts are reluctant to overturn a trial judge's exercise of discretion (see People v. Bishop (1997) 56 Cal.App.4th 1245), they show little restraint when the judge has exercised his discretion in a three-strikes defendant's favor. If the appellate court believes that the defendant falls within the spirit of the three strikes law, it will reverse a judge's decision to dismiss a strike, sometimes with an admonition like this one: "A court may not simply substitute its own opinion of what would be a better policy, or a more appropriately calibrated system of punishment in place of that articulated by the People from whom the court's authority flows." (People v. McGlothin, (1998) 67 Cal.App.4th 468, 476-477, quoted in People v. Thornton (1999) 73 Cal.App.4th 42, 49. See also People v. Gaston (1999) 74 Cal.App.4th 310, 314-315.)

Nonetheless, the judicial power to dismiss strikes does offer hope to defendants whose priors are neither many nor particularly horrible. And some recent appellate decisions regarding dismissing strikes are helpful. In one case, the Court of Appeal (First District, Division Three) held that a trial court abused its discretion by failing to strike a strike! People v. Cluff (2001) 87 Cal.App.4th 991, concerned a third-striker whose current offense was a failure to register as a sex offender. The defendant had registered whenever he changed his address, but had failed to confirm his address annually as required by the sex offender registration law. The requirement of annual re-registration had been enacted five years after the defendant was released from prison. The Court of Appeal not only ruled that the trial court had abused its discretion by failing to strike a strike, but also stated that the sentence of twenty-five years-to-life "appears disproportionate by any measure." (Id. at p. 1004.)

The Supreme Court has held that a trial court applying the "Three Strikes" law may exercise its discretion to dismiss a prior conviction allegation with respect to one current count and refrain from dismissing the prior with respect to another current count. (People v. Garcia (1999) 20 Cal.4th 490, 493-494.) This is important, because even when it's clear the judge cannot be persuaded to dismiss a prior strike altogether, it may yet be possible to limit the damage. In Garcia, it was helpful that the defendant had no history of violence, and his prior serious felony convictions arose from a single period of aberrant behavior. (Id. at pp. 494-495.)

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