LIFE IN PRISON, OR DRUG REHAB?

FOR Tommy Lee Fryman, timing will mean the difference between life in the
slammer and months in drug rehab.

For Californians, his case accentuates a double standard of justice they
created.

In 1994, California voters overwhelmingly approved the nation's toughest
``three strikes and you're out'' law. It required 25 years to life for
anyone twice convicted of a serious or violent crime who is subsequently
arrested for drug possession or another felony.

Six years later, California voters overwhelmingly passed Proposition 36,
which orders probation and drug treatment for anyone charged with drug use,
as long as the person hadn't been convicted of a crime in the five prior
years.

Fryman is a tweener. He was a nine-time felon when San Jose police arrested
him in the posession of crack cocaine in October 1998. But because his
conviction was still under appeal when Prop 36 went into effect in July
2001, two courts have disagreed whether he should get the max under three
strikes, or the minimum under Proposition 36. This week, an appellate court
in San Jose chose the latter.

Whichever law the state Supreme Court selects will ultimately determine
Fryman's future. But that decision won't affect the fate of most of the
600-plus lifers whose third strike conviction on drug possession occurred
well before Prop 36. And it won't affect the 25-to-life sentences facing
those whose third strike wasn't murder or rape but, like drug possession,
another non-violent crime such as forgery, arson and theft.

Whatever happens to Fryman won't free inmates like Leandro Andrade. He was a
drug addict and a convicted burglar. But instead of copping a gram of
cocaine, he had the misfortune, for his third strike, to be caught stuffing
videos, ``Casper'' and ``Snow White'' among them, down his pants at a
K-Mart. He's serving 50 years for shoplifting.

Voters passed Proposition 36 in reaction to the harsh sentencing laws that
led to an explosion of the prison population. Three strikes, a gut reaction
to the brutal murder of Polly Klaas by career criminal Richard Allen Davis,
was the high water mark of the harsh-punishment movement. But in taking an
enlightened approach to drugs, voters accentuated the disparities in the
severe jail terms given to those who commit other non-violent crimes as a
third strike.

State courts, with judges appointed by successive law and order governors,
have reflexively rejected challenges to the three-strikes law. In the fall,
the U.S. Supreme Court will take up Andrade's claim that his punishment was
a violation of the U.S. Constitution's Eighth Amendment ban on sentences
disproportionate to the crime.

If the high court also rejects that argument, then the onus will again be on
voters and legislators to purge three strikes of its excesses and unintended
consequences.