BILL OF RIGHTS TRUMPS `3 STRIKES' LAW

IF only for emphasis, the federal appeals court governing California has
taken another whack at the oppressive application of the state's "three
strikes, you're out" law.

Last fall, the 9th Circuit Court of Appeals threw out the 50-year-to-life
sentence that a San Bernardino County man -- someone who had never
committed a violent crime -- was given for two counts of stealing videos.
Last week, a three-judge panel of the court overturned 25-year-to-life
sentences for two more shoplifters.

The court's message was the same: The sentences were excessive; they
violated the Eighth Amendment, the Constitution's ban on cruel and unusual
punishment.

The latest decision should add momentum to efforts to amend the
three-strikes law. It should serve as a warning to county district
attorneys not to bring third-strike charges for minor offenses, and as a
rebuke to politicians who are callous to the extreme consequences of the law.

Not that many will listen. Instead of taking stock, Attorney General Bill
Lockyer is sharpening his pen to appeal all the 9th Circuit's rulings to
the U.S. Supreme Court. Instead of moderating his position, Secretary of
State Bill Jones, the architect of three strikes, reflexively issued a
statement defending it. Jones credited three strikes for the drop in the
state's crime rate -- a claim that would be impressive if provable. But
crime rates fell nationwide in the '90s, and California's drop started
before voters passed "three strikes" in 1994.

It is true that the "three strikes" law has taken thousands of repeat
violent criminals off the streets; that is its success. But thousands of
other offenders are facing 25-to-life terms for non-violent crimes,
including 300 convicted for petty theft. While some district attorneys and
judges show discretion in applying the law, others don't, creating huge
disparities in sentencing among counties.

Under the law, a criminal who has twice committed a serious or violent
felony gets 25 to life when convicted of a third felony. Any felony: drug
possession, forgery or, in the latest cases cited by the 9th Circuit,
stealing videos and a steering wheel alarm.

The two defendants in the latest rulings had been convicted of violent
crimes: One had done robberies and the other committed robbery and assault
with a deadly weapon. But "even in light of their criminal record," wrote
Judge Marsha Berzon, the 25-year minimum sentence for shoplifting was
excessive -- harsher than in all but maybe one other state. It approaches
another cardinal sin: double jeopardy, piling on more time for a past crime.

The 9th Circuit decision applies to petty theft, not necessarily to all
non-violent, non-serious felonies as a third strike. It certainly doesn't
strike down the overall law.

It does, however, give direction to prosecutors and sentencing judges who
have shown neither fairness nor good sense.