JUSTICE MUST BE MEASURED, RATIONAL AND PROPORTIONATE

Penal code: It should take a violent or serious offense to trigger the
last strike of the three strikes law.

Interest in amending the three strikes sentencing law is growing in the
state Legislature. A bill has been introduced that would limit the
thirdstrike trigger, which mandates a sentence of 25 years to life, to
violent or serious offenses only. It's a good idea.

Justice must be measured, rational and proportionate or it isn't
justice. Any legislation that promotes a punishment scheme not in
conformity with this basic principle of fairness is unjust.
California's three strikes law, providing life sentences for relatively
minor offenses, is such a law.

That justice requires proportional punishment is not a new concept. In
1764, Cesare Beccaria wrote "On Crimes and Punishment," contributing
to the Age of Enlightenment the principle that the more serious a
crime, the more severely it must be punished. This idea, and the
principle that punishment should be applied impartially, regardless of
social station or wealth, formed the revolutionary pillars of criminal
law reform that Beccaria introduced to Europe.

Under the present law, only the first two convictions (strikes) need
to be serious or violent felonies; the third strike can consist of any
of California's 200 enumerated felonies. One of those crimes,
possession of cocaine, consists of behavior that by legal definition
does not even involve immoral conduct (moral turpitude). Yet this same
crime can trigger lifetime incarceration as a third strike. Does this
not violate Becarria's first principle?

Besides disproportionate incarceration, the three strikes law diminishes
our system of justice in other ways. By permitting lifetime incarceration
for both minor and
heinous crimes, punishment loses its moral compass. If a petty theft
can result in lifetime incarceration, we have nothing more in our
punishment arsenal to show our particular revulsion to the despicable
crimes of rape and torture. All violations of law are not equal, and a
crime's level of immorality as well as victim impact should be
expressed through the sanctions we impose.

Our system of criminal justice can only retain its integrity through a
careful balancing of equal protection and discretion. When the San
Francisco prosecutor chooses never to file a drug offense as a third
strike and the Los Angeles prosecutor does so routinely, we have gone
beyond any reasonable policy of discretion. Discretion that provides
for such arbitrary enforcement and disparate consequences makes a
mockery of justice.

"Let the punishment fit the crime." In its simplicity, this notion is
as profound a principle of fairness now as it was in the 18th century.
A rap sheet always has influenced the severity of the sentence, but a
person's past is not the crime and should not eclipse the crime. It's
not about who's soft on crime, or "they had their chance," or "we
can't lock up the gangbangers any other way."

These are calls for preventive detention, which has no place in our
criminal justice system. The understandable anger and frustration that all
crime
engenders should not deprive us of the enlightened principle of
measured punishment. We should reclaim our inheritance and amend the

three strikes law now.

Joseph P. Charney is a Los Angeles deputy district attorney and an
adjunct professor at Loyola Law School. The opinions expressed are
his own.