What's Wrong With "Three Strikes" Laws?

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In her ruling upholding California's "three strikes" law, Justice Sandra Day O'Connor noted that sentences such as 25 years without parole for stealing three golf clubs don't necessarily violate the Eighth Amendment's prohibition against cruel and unusual punishment — and that if Californians think the law is too harsh, they should talk to their legislators.

The legislators don't seem inclined to change. Governor Gray Davis supports the current law, and state Attorney General Bill Lockyer says it it works. "The voters of California want to lock away habitual offenders who preyed on citizens time and time again," says a spokeswoman for the Attorney General's office.

What about the cases of Gary Ewing and Leonardo Andrade, the two sentences the Supreme Court examined? (Ewing was given 25 years for stealing three golf clubs, while Andrade stole some children's videos). According to the California Department of Corrections, the state jails house about 7,000 inmates serving 25-to-life terms under this law — roughly 350 of them received their final strike for petty theft. In the Supreme Court dissenting opinion, Justice Stephen Breyer noted that in most states, 25 years to life is the sentence for first-degree murder, not shoplifting. The attorney general's office points to a 1996 California Supreme Court ruling that judges and attorneys can disregard priors in three strikes cases.

But is that actually happening? The California District Attorney's Association maintains that its members are receptive to mitigating factors in trials. It's hard to get an exact measure, but, according to the San Jose Mercury News, the number of three strikes convictions has plummeted, from 1,382 in 1996 to 538 for the first ten months of 2001. While some of that could be attributed to a deterrent effect of the three strikes law, it's also possible that judges are loosening their definition of three strikes.

Absent legislation, members of FACTS (Families to Amend California's 3 Strikes) hope to get a statewide referendum on the 2004 ballot modifying the law to only apply to violent offenders on the third offense. The group's founder and executive director Geri Silva believes California voters will support a ballot initiative to focus the law on violent offenders only. While results of a recent poll conducted by a public policy research company indicate strong support (69 percent approval) for the three strikes law, results show as many as 65 percent of California voters would support a "violent offenders only" amendment to the current legislation.