A FOUL THIRD STRIKE

Californians should take a hard look at the "three strikes" law signed into
law by Gov. Wilson in 1994, especially as interpreted by the state Supreme
Court last week.

The court strengthened the law when it said that multiple felonies can be
punished as separate strikes even if they arise from a single criminal act.
In other words, you can get to three strikes very quickly.

That's what happened to Russell Benson of Lancaster, the subject of the
state Supreme Court case. He was convicted of two felonies in 1979 stemming
from a single knife attack. His third strike came in 1994 when he was
convicted of stealing a carton of cigarettes from a Target store.

Had his first two convictions counted as one strike, Benson would have
faced a maximum six-year sentence.

But as the court interpreted California's "three strikes" law - passed by
both the Legislature and in a referendum approved by voters - Benson had
three strikes. And, in California a non-violent felony conviction qualifies
the person for a "third" strike. Benson received a sentence of 25 years to
life.

The Supreme Court vote was the narrowest possible, four to three. "We
should not transform one strike into two," objected Justice Ming W. Chin,
writing the minority opinion. "The question before us has major practical
consequences. Multiple convictions can often arise out of a single act."

Chief Justice Ronald M. George led the majority. He wrote in his opinion,
"The Legislature and the voters, through the initiative process, clearly
intended that each conviction for a serious or violent felony counts as a
prior conviction, even where the convictions were based upon conduct
against a single victim committed at the same time with a single intent."
He pointed out that the "three strikes" law superseded previous laws on the
issue, which prohibit multiple punishments for a single act.

But no law can supersede constitutional guarantees against excessive
punishment. The California Constitution guarantees the right "not to suffer
the imposition of cruel or unusual punishment" which "shall be construed by
the courts of this state in a manner consistent with the Constitution of
the United States."

The Benson sentence - 25 years for lifting a carton of cigarettes -
illustrates potential disproportionality in punishment and raises larger
questions about California's particular version of "three strikes," which
is quite different from other states.

"I can grant that the chief justice has a point, that the people of
California enacted the three strikes law," Professor Gilbert Geis,
professor emeritus of criminology at the University or California, Irvine,
told us. "But his job is to see that the law squares with the Constitution.
That's why we have a judiciary."

On the particular decision, Mr. Geis said, "It's disgusting. California is
virtually one of the only states that does not insist on three violent
crimes. So you end up with what I'd call a travesty of the intent of the
law, which was to remove violent offenders from the street. For this man,
15 years had elapsed since his violent crime."

What's needed is a review of the law. As we pointed out in 1994, Gov..
Pete Wilson and other three-strikes proponents backed the most draconian of
the three-strikes proposals being considered.

Unfortunately, both Gov. . Wilson and Attorney General Dan Lungren, who is
running for governor, backed last week's ruling. "This ruling puts the
teeth back into the three-strikes law and brings us back to the intent of
the voters," Mr. Wilson said. Well, it's a good question whether most
voters wanted cigarette thieves to get 25-years-to-life.

As to Benson, it's possible the trial judge in the case could re-hear the
sentencing and eliminate one of the felonies from 15 years ago, returning
him to the two-strikes level. That clearly is just. He should be punished
for theft, but not by spending a quarter-century behind bars.

Checked-by: jwjohnson@netmagic.net (Joel W. Johnson)