DEBATE SWIRLS AROUND BID TO FINE-TUNE 3-STRIKES LAW

Some lawmakers hope the new, more progressive California
administration and Legislature will support changing the "Three
Strikes, You're Out" criminal sentencing law so only a serious or
violent felony would count as the third strike.

The Three-Strikes law allows any crime to count as a third strike --
even shoplifting -- if someone already has been convicted of two felonies.

"(Three Strikes) was sold to the people of California as a way to get
violent criminals off the street, but it's sending some pot smokers,
petty thieves and other nonviolent criminals behind bars for life, and
that comes with a price tag, "said Rocky Rushing, chief of staff for
state Sen. Tom Hayden, who has introduced a bill to change the law.

But others are hesitant to water down a law they claim has sent crime
rates plummeting.

"Everyone understands that a guy, after three violent felonies, should
not only be incarcerated, but perhaps evaporated," said Mike Reynolds,
father of a murder victim and author of the existing law. Requiring
the third strike to be a serious or violent felony ties the hands of
prosecutors and judges, he said. "It's too hard to find anybody to
qualify for it."

75 percent nonviolent

About 75 percent of the third-strikers in the state imprisoned so far
were locked up after committing a nonviolent third strike, Reynolds
estimated. Let those people out of prison and "you're looking at a
bloodbath," he added.

"You're sentencing them on the probability they're going to go out and
commit more violent crime," Reynolds said. "These aren't
schoolchildren."

If the bill passes, it will be without the support of new Attorney
General Bill Lockyer, a Democrat who likes the law as it is. Spokesman
Nathan Barankin said Lockyer believes the law already gives
prosecutors case-by-case leeway to decide whether to seek the harsher
penalty, and gives judges the ability to dismiss prior felonies in the
interest of justice.

Said Rushing: "Unfortunately, there's not a lot of discretion being used in
the state of California -- it files more three-strike cases than any other
state in the nation."

Among the latest local three-strikes cases is that of Dennis Barnes, a
49-year-old Vietnam War veteran from South San Francisco who already
had two violent strikes under his belt when he walked out of a drug
store without paying for a few jars of instant coffee in his backpack.
He was charged with commercial burglary, convicted of this third
strike and sentenced to 25 years to life.

"It was a question of a jury seeing his past and not being able to get
past that," said defense attorney Steve Chase, adding the sentence was
unjustly harsh.

San Mateo County District Attorney James Fox said he initially opposed
the three-strikes law because he thought it didn't give prosecutors
and judges discretion in choosing when not to use it. Once he realized
such discretion existed, he supported the law and now believes it's
fine as it is.

"It is very rare that we will go forward in a three-strikes category
when the new offense is not serious or violent ... but there have been
occasions when we have done so," he said.

Barnes is one of those occasions, Fox said. With seven qualifying
prior convictions -- five attempted murders, one arson and one
attempted manslaughter -- in two cases, "his whole background is such
that I view him as a dangerous person.

"He hasn't been able to conform his life to the expectations of
society," Fox said. "I don't believe he belongs out."

But those few jars of instant coffee could cost California taxpayers
$477,434 -- the estimated cost of imprisoning Barnes for the rest of
his life, presuming he lives to the average American male life
expectancy age of 72.

"Our friend who loves the java would not be looking at a 25-to-life
sentence if this bill passed," Rushing said.

Alameda County Assistant District Attorney Tom Rogers said his
county's prosecutors generally abide by the rule "that if the new case
is not a serious or violent felony, we won't charge it as a
three-strikes case." But they do make exceptions. Rogers said all
three-strikes cases bound over for trial are reviewed by District
Attorney Tom Orloff, who decides whether prosecutors will continue
seeking the harsh penalty.

Hayden, D-Los Angeles, introduced his bill in December to change the
existing law, and it now is pending before the Senate's Public Safety
Committee.

Difficult to overturn

Rushing said "the forecast is very difficult" because three-strikes
was enacted by voter referendum, so it takes a two-thirds vote of the
Senate and Assembly to bring a change to the governor's desk. Still,
Rushing said it could happen.

"People in California, the taxpayers along with their elected
officials, are probably starting to understand more than ever that in
this era of limited resources, the state can no longer afford to
continue this prison-building binge it has been addicted to for the
past several years," he said.

But Reynolds said California ended 1998 with a prison population
increase of only 2.8 percent from the previous year -- among the
lowest increases in decades. He also disputed an often cited claim
that violent crime in California was already dropping before Three
Strikes went into effect, and noted that property crime had dropped
only slightly.

California in 1993 was ranked second among all the states for crimes
per capita, he said. "We are now down to number eight. We're
definitely moving in the right direction."

Even before Three Strikes, California law provided life without parole
for those convicted in three violent felony cases, Reynolds said. But
a 1992 report by the state Attorney General's office found that in the
10 years since 1982, only 41 people had been locked up under that law.

"You couldn't clean up this block, let alone the state of California
by locking up four and a half people a year," Reynolds said, claiming
Three Strikes gave cops and courts more teeth.

"Tough words don't make it," he said. "If you're not prepared to back
those words up with actually locking criminals up, you're not going to
get a drop in your crime rate."

Reynolds acknowledged other factors -- including an improved economy,
community policing and a more stable drug trade -- might contribute to
crime's decline, but said the role of Three Strikes shouldn't be
underestimated.