In People v. Romero (June 20, 1996) 13 Cal.4th 497, 917 P.2d 628, 65 USLW 2017, 96 Daily Journal DAR 7229, the state's high court, controlled by Republican appointees, ruled that the three strikes law did not preclude trial judges from striking allegations of prior convictions, even in the absence of a motion by the prosecutor requesting such action. Republican lawmakers were quick to denounce the decision, vowing to overturn it through legislation. "The justices showed they are more interested in protecting the turf of the bench than they are about protecting the safety of Californians," said Secretary of State Bill Jones who backed the 1994 sentencing law as an assemblyperson.
Republican Governor Pete Wilson was similarly critical of the ruling, saying, "We cannot tolerate a situation which permits judges who are philosophically unsympathetic or politically disinclined to 'three strikes' to reduce strong sentences." Senate Minority Leader Rob Hurtt, R-Garden Grove, quickly authored a bill aimed at nullifying Romero. Regularly scheduled vacations for state legislators were delayed one week while both parties tried to resolve their differences over the bill. Senator Diane Watson, D-Los Angeles, was the only one to voice publicly what others would only say off the record. "Why not allow an opportunity for some time to go by and have the bill voted on in August? We stayed another week (already). I don't see any need to rush this through. The public needs time to react."
Rob Stuzman, a spokesman for Hurtt, responded, "The downside to that is, every day that goes by is a day that criminals don't have to live under the tough sentencing guidelines of 'three strikes'." The new bill would sharply limit judicial discretion in three strikes cases, allowing a judge to disregard previous convictions only if none of them were violent, the new offense was neither violent or serious, and the last previous conviction or release from prison was more than five years ago. Prosecutors would still have the power to drop prior convictions, but would have to explain such decisions on the record in open court. Other lawmakers expressed reservations about the bill.
"They (the California Supreme Court) made a careful, smart, measured decision and we ought not to make the court lackeys to hysteria," said Assemblyperson John Vasconcellos, D-San Jose. "It seems to me what they did was smart." Assemblyperson Barbara Lee, D-Oakland, said the decision "opens the door to begin addressing the real problems surrounding three strikes," which she said unfairly targets blacks. Many Democrats said the Republicans needn't worry because most judges are conservative anyway. They pointed out that the Supreme Court merely allowed discretion in outrageous cases, such as where a prosecutor asks for a life sentence for a man who steals one slice of pizza.
"I do believe there is nothing in the decision that will have violent criminals wandering the street," said Assemblyperson John Burton, D-San Francisco. "They're judges--that's the name, judges. They're supposed to judge things." Burton said the next step for Republicans would be to "get rid of judges and have the district attorney prosecute a case and decide the sentence." Burton and Vasconcellos were joined by Lee, Assemblyperson Tom Bates, D-Berkeley, and Senator Nick Petris, D-Oakland, in saying the Supreme Court's decision was fair, particularly because most judges are former prosecutors who agree with the three strikes philosophy anyway. But, is the law fair and effective?
In March 1995, Jerry Dewayne Williams of Los Angeles got 25 years to life for stealing a slice of pizza from a group of children on a pier. In March 1996, jurors acquitted Michael Newhouse, a homeless Los Angeles man, of charges of possessing a minute amount of cocaine. The case was prosecuted under the three strikes law. After the acquittal, the judge upbraided the prosecutor. "This case constituted a refusal by the district attorney to exercise the discretion that is vested in him by law and is part of his job," Superior Court Judge David Yaffe said.
"If he refused to exercise that discretion ... because he is afraid of the public reaction, then he's a craven coward who is afraid to do his sworn duty," the judge continued. "If he refused to exercise his discretion because he's trying to demonstrate that the 'three strikes' law does not work, then he is an arrogant bureaucrat who is trying to make fools of the 70 percent of Californians who voted for that law." Los Angeles District Attorney Gil Carcetti, who was seeking reelection at the time, refused any comment. Although the prosecution refused to dismiss Williams' prior convictions, they did reduce charges against the grandson of one of Garcetti's campaign contributors, allowing the man to avoid a life sentence under the three strikes law.
A provision in the three strikes law prevents jurors from being informed defendants face life sentences. If the defense tells the jury about the possible sentence, the prosecution can demand a mistrial. In San Jose, a jury convicted Anthony Garcia of shoplifting several pairs of pants from a department store. When jurors learned he faced 25 years to life some of them wrote angry letters to the judge stating that they felt "trapped" and "misled." Garcia was sentenced to 26 years to life. Some judges and prosecutors refuse to impose the harsh sentence in cases of petty crime.
In Monterey County, Joel Murillo, faced a term of 35 years to life for stealing television sets. But, Judge Robert Moody exercised his discretion and disregarded a prior felony conviction, sentencing Murillo to an 18 year term. Moody, a career prosecutor before becoming a judge, is known as a tough, conservative sentencer. David Bristow was a rising star in the San Bernardino County district attorney's office. He switched sides and became a public defender, however, when he was fired for refusing to prosecute a Pomona man under the three strikes law for possession of .23 grams of cocaine. The man had prior convictions for robbery and burglary and would have been sentenced to 25 years to life on the possession charge. The ACLU gave Bristow its Conscience Award "because of his courage and conviction," spokeswoman Gina Lobaco said.
San Francisco District Attorney Terence Hallinan, a defense attorney before election to the top prosecutor's job, is frank about his dislike for the three strikes law. "I didn't want to become district attorney to put everyone in prison for life no matter what they did." Since he took office last January, Hallinan established a panel of four prosecutors to review all potential three strikes cases. "we pretty much use 'three strikes' [only] for vicious people, " Hallinan said. "I myself feel I am able to tell the difference between a bad person and someone who has just done the wrong thing. If you restructure 'three strikes' to reach violent or vicious people, you can make a real argument for it."
The cost of California's growing prison system in general-and the cost of housing tens of thousands of three strikes prisoners in particular--is bankrupting the once richest state in the country. To finance the biggest prison building program in the world, Governor Wilson has borrowed $7 billion from Wall Street investors. The interest payments on those loans cost state taxpayers several hundred million dollars a year and the increasing debt load may prompt financial institutions to lower California's bond rating, resulting in even higher interest rates on existing loans.
But Wilson, who is in his last year of office, is asking the Legislature to approve a $1.8 billion bond measure to build six new prisons immediately. Wilson claims the overall cost to society is greater when a career criminal is loose rather than locked up for life. "The question isn't whether we can afford 'three strikes"' and its accompanying need for prison construction. "It's how we can afford to live without it."
As of August 11, 1996, the California Department of Corrections housed 141,925 prisoners. The state's prison population is projected to exceed 230,000 by 2001 and all available bed space will be filled by April of 1998. James Gomez, Director of the prison system, has said the only way to deal with overcrowding is either to stop accepting new prisoners or start letting prisoners out early. No one is likely to stem the flow of incoming prisoners and even if the Legislature approved 20 new prisons none would be ready for operation until 2000.
In the meantime, the crime rate has been slowly declining over the past few years. With the aging of the Baby Boomers, people between 38 and 50 years old, crime has declined. California Attorney General Dan Lungren was quick to attribute the lower crime rate to the 'success' of three strikes. That's merely politics. Three strikes, like all other sentencing laws, is unlikely to ever have a measurable effect on the crime rate because only 1-2% of those responsible for committing crimes are ever arrested, charged, tried, and sentenced to prison. And tough sentences serve only to get politicians elected, they are never a deterrent.
In a study authored by Vincent Schiraldi, Christopher Davis and Richard Estes of the Center on Juvenile and Criminal Justice in San Francisco, the racial disparity in three strikes sentencing is clear. Blacks are sent to prison under the law 13 times more often than whites. Some 43% of prisoners with a three strikes sentence are black, although only 7% of the total state population is black and they represent one-fifth of all Californians arrested for felonies.
And, overall, 85% of persons receiving stiffer sentences under the three strikes law were convicted of a nonviolent offense according to Franklin Zimring, Director of the Earl Warren Legal Institute at the University of California at Berkeley. "We're worried about Willie Horton and we lock up the Three Stooges," Zimring said. Using three strikes to imprison people for minor offenses "is a perverse way to crack down on crime," Zimring concluded.
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