HIGH COURT OKS STIFF "3-STRIKES' SENTENCES

Tough-on-crime law does not constitute double jeopardy

The Supreme Court sharpened the teeth of California's "three strikes" law
Friday, making it easier for states to stiffen sentences for repeat
offenders based on past crimes.

In a decision hailed by the law's author and criticized by San Francisco's
chief deputy public defender, the justices ruled, 5-4, that the
constitutional protection against being tried twice for the same crime does
not apply to sentencing proceedings in non-death penalty cases.

Therefore, the court said California's tough-on-crime three strikes law can
be used to double what would have been a Pomona man's five-year prison term
for selling marijuana.

The court reached the same decision in the case as did the California
Supreme Court in 1997. It does not apply to death penalty cases.

"This is a really huge decision, not just for three strikes, but for law
enforcement throughout the country," said Mike Reynolds of Fresno, author of
the law.

"It could have been catastrophic if it had come down against us," said
Reynolds, whose 18-year-old daughter was murdered by two repeat offenders in
1993.

Twenty-three states have adopted similar laws since California's three
strikes measure went on the books in March, 1994, and a contrary decision
would have triggered "a mass exodus of criminals throughout the country," he
said.

The defendant in the case decided by the Supreme Court had argued that once
an appeals court ruled his prior conviction could not be used to increase
his sentence, prosecutors could not seek a retrial of that issue.

Peter Keane, chief deputy public defender for San Francisco, did not share
Reynolds' jubilation.

"It's a reflection of how three strikes laws in general have eaten away at
many constitutional rights. The U.S. Supreme Court has taken protections
related to double jeopardy and has driven a hole through that protection,"
Keane said.

The decision was "unfortunate but not surprising," in view of recent Supreme
Court decisions in cases involving three strikes laws, he said.

It does not change the way the three strikes law is used in California,
rather "it ratifies what prosecutors have been doing."

Perhaps the greatest impact will be felt in other states, he said.

"It opens the doors to stiffer sentences," Keane said. "If other states
adopt three strikes laws, they would not have to put up with the kinds of
legal fights California has put up with in order to sustain its
constitutionality. The California Attorney General, with the U.S. Supreme
Court's blessing, has blazed a path for them."

In writing for the court, Justice Sandra Day O'Connor said "many states have
chosen to implement procedural safeguards to protect defendants who may face
dramatic increases in their sentences . . . We do not believe that because
the states have done so, we are compelled to extend the double jeopardy
bar."

Angel Jaime Monge's sentence for his 1995 conviction was doubled because his
marijuana conviction was deemed a second strike - he had been convicted of
assault with a deadly weapon in 1992.

California's 1994 three strikes law results in sentences ranging from 25
years to life in prison for third felony convictions, and calls for a
doubling of the prison sentence for second convictions.

A state appeals court upheld Monge's marijuana conviction but threw out his
doubled sentence after ruling there was insufficient proof that he had used
a dangerous or deadly weapon during his 1992 crime.

The appeals court also barred prosecutors' attempt to retry that aspect of
the previous case. To do so, the appeals court said, would violate Monge's
constitutional protection against being tried twice for the same crime. The
Constitution's Fifth Amendment bars such double jeopardy.

The state Supreme Court, however, cleared the way for just such a retrial by
overturning the appeals court's ruling and stating that the double-jeopardy
protection does not apply in such circumstances.

In Friday's ruling, the nation's highest court said the state Supreme Court
was correct.

O'Connor noted the high court has previously ruled that double-jeopardy
protection does apply in death-penalty cases. The court ruled in 1981 that
states cannot seek the death penalty in a second sentencing proceeding after
a defendant's first jury declined to impose a death sentence.

But O'Connor said death penalty cases have unique circumstances and said
that the court generally has ruled that double-jeopardy protections do not
apply to sentencing proceedings.

Her opinion was joined by Chief Justice William Rehnquist and Justices
Anthony Kennedy, Clarence Thomas and Stephen Breyer.

Dissenting were Justices John Paul Stevens, Antonin Scalia, David Souter and
Ruth Bader Ginsburg.

1998 San Francisco Examiner Page A 1

Checked-by: "Rolf Ernst"