PRISON HARDBALL

Legislature Should Follow State Justices With A Narrowing Of `Three
Strikes' Law

The California Supreme Court has wisely narrowed the strike zone of
the state's premier get-tough-with-crime law. The Legislature should
follow the lead and pull it back further.

In a unanimous decision last week, the court ruled that a juvenile
conviction for burglary cannot be counted as a violation under the
5-year-old ``three strikes'' law. Only those juvenile crimes serious
enough to be tried in adult court -- violent crimes such as rape and
robbery, and the sale of certain drugs -- can count as a strike.

Under three strikes, the sentence of a person who has a previous
conviction for a serious or violent felony will be doubled, unless the
judge sets aside the provision. A person with two prior serious or
violent felonies can receive a sentence of 25 years to life. The law
has been applied to nearly 48,000 felons, including 5,419 who've
gotten the maximum.

The court's decision overturned the stiff sentencing of a San Diego
man who had just turned 18 when he was convicted of burglary. Because
he had a previous conviction for residential burglary, when he was a
juvenile, the judge doubled his normal four-year prison sentence.

A public defender in San Diego said that the decision could reduce the
sentences of thousands of prisoners whose juvenile records were used
against them. Others downplayed the effect. Some district attorneys,
including prosecutors in Santa Clara County, already had a policy of
not counting juvenile burglaries -- a common crime that kids commit --
as a penalty-enhancing offense.

Frank Zimring, a criminal law professor at the Boalt Hall School of
Law, viewed the decision as a sign that the justices feel comfortable,
in the current political climate, in easing off a hard line on three
strikes. While encouraging, if true, the court's judgment shouldn't
substitute for the Legislature's. It has the responsibility for
writing penalties into law.

Longer sentences under three strikes is one reason why the prison
population in California keeps growing even though crime rates have
plummeted. The law has been effective in keeping violent criminals off
the street, but it also casts too wide a net and snares criminals
convicted of non-violent offenses. They're sometimes slapped with a
heavier punishment than the crime warrants, and the state pays too
high a cost, at $20,000 per year per inmate.

Any felony can evoke increased sentences. A person can get 25 years to
life for forgery if, say, at any time as an adult he was convicted of
breaking into a home and of stealing a gun -- two crimes that
constitute strikes.

Whether that sentence is imposed often depends on where the crime was
committed. There are great disparities among counties in enforcing
three strikes. Prosecutors in Alameda County and San Francisco
routinely ignore enhanced sentencing. The Santa Clara County District
Attorney's office initially includes all strikes when filing charges,
but then refers each case to a committee of attorneys to consider
mitigating circumstances, like the nature of past crimes and how long
ago they were committed. About half the time, Santa Clara prosecutors
drop a qualifying strike in sentencing, according to assistant
district attorney Tom Farenholtz.

But prosecutors in Southern California have been much more aggressive
in applying the law and have put away three-strikers in
disproportionate numbers. That's why the Legislature should reconsider
the types of felonies that call for enhanced sentences. They shouldn't
necessarily be limited to violent crimes, but certainly the focus
should be on them. Doing so would substantially reduce the number of
costly three-strikes cases, according to Zimring, while still keeping
dangerous offenders off the street.

A narrower three-strikes law would be more cost-effective and fair.
The latest Supreme Court decision should signal the Legislature to
take a second look.