HANDCUFFING JUDGES

"Three strikes and you're out" is a familiar refrain for baseball fans, but
there's another type of person also familiar with the saying - three-time
losers who get convicted of crimes, no matter how large or small.

Now, the Supreme Court has decided to consider whether sentences of 25
years to life in prison imposed under California's "three strikes" law are
unconstitutional - especially in cases where the defendants were found
guilty of shoplifting videotapes from Kmart, for example.

It's about time the umpires made an appearance.

Any time there are cases of people receiving sentences ranging from 25
years to life for petty crimes, such as two California thieves given harsh
sentences for misdemeanors, the system needs fixing.

It's not that the law never works. There is a case to be made that it helps
rid the streets of career criminals who might otherwise commit heinous
crimes against good citizens, which is exactly what happened to spur this
law in the first place.

California voters and lawmakers approved the three-strikes law in 1994
following the kidnapping and murder of 12-year-old Polly Klaas. Richard A.
Davis was a repeat offender on parole at the time of the kidnapping. He was
convicted of the murder and sentenced to death.

Other states and the federal government also passed three-strikes laws in
the 1990s, although California metes out the harshest punishment of any
state for crimes ordinarily treated as misdemeanors. Under California law,
prior convictions trigger treatment of a misdemeanor as if it were a felony.

The problem becomes how to enforce this law in a logical manner without the
rigidity that now exists. In its present form, it removes all judicial
discretion.

New York does not have a three-strikes law, but it does have similarly
harsh mandatory-sentence Rockefeller drug laws. It also has a
second-offender law that requires a prison sentence for anyone convicted of
a second felony within 10 years of their first. The length of sentences can
vary, but there are mandatory minimums with no discretion. New York also
has a violent felon law mandating prison for anyone convicted of a violent
felony.

While a California ruling would not have a direct affect on New York's
laws, there could be an indirect one. Mandatory sentencing as policy and
practice is under serious review not only by politically minded advocates
but mainstream institutions, and there are increasing calls to give judges
more discretion in matching punishments to crimes. The Supreme Court's look
at the California issue is another step along that path.