THREE STRIKES LAW APPEARS TO HAVE MET GOAL

State Prisons Aren't Overwhelmed With Petty Criminals Given Long Term

It hasn't overwhelmed California's prisons with vast numbers of petty
criminals doing life sentences, as critics predicted. Instead, California's
7-year-old "three strikes, you're out" law appears to have accomplished the
goal its supporters touted: It has targeted the state's worst repeat
offenders and taken them off the streets.

After an initial flurry of convictions, three-strikes prosecutions have
declined steadily. The number of these offenders now doing the
25-years-to-life sentences authorized by the law accounts for just 4
percent of inmates.

Critics continue to charge that the law is being used improperly against
petty offenders, a claim that is difficult to evaluate across the state.
But a Mercury News analysis found little evidence of such overzealousness
in a review of three-strikes cases in Santa Clara County.

Of the 181 cases in which a 25-years-to-life sentence was handed down for a
non-violent crime, the paper found, 95 percent of the convicts had
previously committed multiple violent acts. Prosecutors say that their
success in putting away these sorts of felons -- the most dangerous of
California's career criminals -- means there are fewer hard-core
lawbreakers on the street and fewer three-strikes cases.

Based on available data, California seems to have learned to live with its
three-strikes law; for that reason, it appears to be here to stay.

There have been some excesses. A federal appeals court last month nullified
the three-strikes sentence of Leandro Andrade, a San Bernardino man with a
history of burglary who shoplifted $154 worth of videotapes. The case
revived a debate over whether non-violent offenders should face extreme
sentences.

Among the 26 states with three-strikes laws, California stands alone in not
requiring that the third strike be violent. In addition, in this state the
non-violent crime of residential burglary can qualify as a first or second
strike.

But even those pushing to change the law concede that it has put away many
dangerous, chronic lawbreakers.

Gerald Uelmen, a Santa Clara University law professor, says voters probably
didn't understand the full impact of the law when they approved it in 1994,
specifically that any third felony can trigger a 25-years-to-life sentence.

"Most voters thought this was directed toward violent criminals and had no
idea it would sweep as broadly as it did, to include drug offenders and
petty thieves."

But Uelmen, who continues to oppose the law, concedes: "In terms of taking
violent people off the streets, I think it's had some effectiveness."

"Three strikes" was signed into law by then Gov. Pete Wilson in 1994, after
the murder of 12-year-old Polly Klaas by violent career criminal Richard
Allen Davis. Later that year, it was affirmed by more than 70 percent of
the state's voters. The law states that convicted third-strikers get 25
years to life in state prison, and must serve at least 20 before being
eligible for parole.

It also mandates that sentences be doubled for convicted second-strikers.

But the question of which crimes qualify as "strikes" remains controversial.

As it has turned out, residential burglary -- not a violent crime -- is the
second most common third strike, accounting for 11 percent of all cases.
Robbery is the most common. Ammunition for critics Many third strikes not
violent crimes

Overall, according to the state Department of Corrections, nearly half of
California's 7,206 three-strikers are doing 25 years to life for
non-violent third strikes, including drug possession and petty theft.

Santa Clara County figures mirror that, with 48 percent of its 381
three-strikers serving 25-years-to-life sentences for non-violent crimes.
Thirteen were given 25-years-to-life terms for failing to register as sex
offenders.

Such statistics fuel critics' arguments.

Mary Avanti, an activist with the statewide group Families to Amend Three
Strikes, said: "We have no problem taking people like Richard Allen Davis
off the street. We're saying, 'Have the time fit the crime.' Don't give
somebody life for having a few ounces of marijuana."

But proponents say the law is being applied as intended.

"Why should I wait until they rape or hurt someone else?" asked Santa Clara
County District Attorney George Kennedy. "These people have a pattern of
violence and are not going to stop committing crimes."

The hard question is whether prosecutors and judges are using sufficient
discretion to target only serious criminals, while passing on those whose
acts don't merit lengthy sentences. The state Supreme Court gave trial
judges authority to make such judgments in a 1996 order, known as the
"Romero ruling" after the defendant in the case.

No one has done a comprehensive study of the backgrounds of individual
three-strikes offenders in California. But there is some evidence that the
system is making judgment calls.

The number of three-strikes convictions has plummeted since the Romero
ruling, from 1,382 in 1996 to 829 in 2000. In 2001, there had been 536
statewide through October.

Some counties apply the law more aggressively than others. Conservative,
largely rural Kern County has the highest rate of three-strikes convictions
per capita. More liberal jurisdictions, including San Francisco and Santa
Cruz, have sent away only a handful.

To see how individual cases are evaluated, the Mercury News analyzed the
law's history in Santa Clara County, whose three-strikes conviction rate
falls in the middle of the state's larger counties.

Santa Clara County uses an internal review process that the district
attorney says ensures that only the strongest cases go to trial. Even some
critics, like Uelmen, consider it one of the most evenhanded approaches.

The Mercury News reviewed the case histories of all 181 individuals in
Santa Clara County whose third strike was non-violent and found that 173
had been convicted of multiple violent acts, many predating the
three-strikes law. Their rap sheets contain scores of robberies, rapes,
sexual molestations, serial burglaries, assaults and other hard-core
criminal behavior.

Kennedy pointed to the case of John Bunyard, a murderer, kidnapper and
thief paroled to San Jose in 1986 after a dozen years in prison. He stayed
out of trouble for several years, then was arrested in 1995 for attempting
to pick up a 14-year-old girl.

The crime never became violent -- Bunyard was in a truck and never made
contact with the girl. But once authorities reviewed a long rap sheet that
included two murders, kidnappings, robberies, burglaries and assault on a
police officer, they pushed for a three-strikes conviction.

In August 1995, Bunyard got 25 years to life for attempted child
molestation. Without a three-strikes law, he would have received a
three-year sentence. Kennedy says he's sure Bunyard would have struck again.

In Santa Clara County Panel can urge lesser charge by DA

Under the county's process, the district attorney automatically files all
cases that fall within the three-strikes law, but a review committee
evaluates each and can recommend a reduced charge before trial. The office
says it recommends reductions in 45 percent to 50 percent of cases, and
judges generally go along.

Judges sometimes do disagree when prosecutors recommend a 25-years-to-life
sentence. In Santa Clara County, they have used their "Romero" power to
reduce charges in about 12 percent of cases.

Still, critics argue that Santa Clara County's process is too harsh on some
defendants.

To deputy public defender Randy Danto, the case study is 37-year-old Pete
Heyberger, a San Jose man with a history of non-violent residential
burglaries, which he pulled to support a consuming drug habit. Heyberger
had shaken drugs and was crime-free for seven years. But when a girlfriend
broke up with him, Heyberger returned to drugs and burglary -- and soon
found himself with a third strike.

"He committed one burglary; he didn't come near or hurt anybody," Danto
said of her client's 1997 conviction. "But the judge gave him life. He just
didn't deserve that."

The DA's office disagrees.

"Burglary is a serious and potentially violent crime," said Deputy District
Attorney Dave Tomkins, who heads the office's three-strikes committee. "Ask
any burglary victim how they feel after their house has been ransacked and
personal items taken. They feel violated."

Tomkins said Heyberger "was a classic recidivist, convicted over and over,
and he just didn't learn."

The Mercury News review of convicts whose third strike was neither violent
nor serious found eight cases in Santa Clara County in which the individual
had never committed a crime more serious than burglary. In each instance,
however, the individuals had extensive criminal records.

So far, there is little indication that cases like Heyberger's will stir an
assault on the law.

The court ruling in favor of the San Bernardino shoplifter was a split
decision by a three-member panel of the 9th U.S. Circuit Court of Appeals,
and many observers think it won't stand further appeal. Also, the court did
not overturn the law's core tenet -- that the state has the right to
quarantine habitual criminals.

On the legislative front, the prospects aren't much different. A bill in
the Assembly requires that a third strike be a serious or violent felony.
But state Sen. John Vasconcellos, D-San Jose, who sponsored an unsuccessful
bill to change the law last year, said he will not try again. The state's
two most recent governors, including Gray Davis, have opposed any move to
alter the law.

Other experts give little hope to a planned ballot measure to undo the law,
saying the public clearly feels it is working.

Santa Clara County District Attorney Kennedy believes this.

"There are some people who cannot be rehabbed," he said. "Those are the
people we're putting away. That was the intent of three strikes and what
the people of this county want me to do."