CALIFORNIA APPELLATE RULING AIDS FOES OF 3-STRIKE LAW

3-Strikes -- Since A Federal Appeals Court In San Francisco Ruled Last
Month That A 50-Year Prison Sentence For A Videotape Thief Was Cruel And
Unusual Punishment, Public Defenders Across The State Have Been Digging Up
Old Cases To Mount The First Broad Challenge To California's Three-Strikes
Law In Years.

LOS ANGELES - Life imprisonment for a man who shoplifted a screwdriver, an
electric razor and a map from a Kmart . The same sentence for one who tried
to steal a meat slicer and a mixer from an International House of Pancakes.
Twenty-five years to life for a homeless man who broke into a restaurant,
only to come away with four chocolate chip cookies - two in his left
pocket, two in his right.

Since a federal appeals court in San Francisco ruled last month that a
50-year prison sentence for a videotape thief was cruel and unusual
punishment, public defenders across the state have been digging up old
cases to mount the first broad challenge to California's three-strikes law
in years.

In Los Angeles, public defenders are looking through more than 500 cases in
which offenders received sentences of 25 years to life for nonviolent
offenses like drug possession or petty theft. In rural Kern County, public
defenders are hoping to reduce, if not overturn, as many as 350 sentences.
And throughout Southern California, where prosecutors have vigorously
enforced the state law that puts people with three felony convictions in
prison for 25 years or longer, public defenders are selecting a wide array
of cases that they hope will be eligible for application of the appeals
court ruling.

"This is not going to be an easy ride," said Michael Judge, the Los Angeles
public defender and president of the California Public Defenders
Association. "It creates an enormous amount of optimism and hope among
people, and we become the focal point for impatience and, if things don't
turn out well, disappointment."

The effort's success is hardly guaranteed. In a 50-page order, a
three-judge panel of the United States Court of Appeals for the Ninth
Circuit clearly stated that its decision did not "invalidate California's
three-strikes law generally." Instead, the court applied its decision
solely to the case of Leandro Andrade, a heroin addict with a history of
only nonviolent offenses, quite unlike the records of many of the prisoners
sentenced to life in prison under the law.

And while the state court judges who sentence most offenders must consider
the federal appeals court decision, they are not bound by it. And they must
also weigh the state's extensive case law upholding the fairness of the
three-strikes law, creating a challenging and ambiguous legal environment
for public defenders to navigate.

"I don't think they should count their chickens before they hatch," said
Lawrence Brown, executive director of the California District Attorneys
Association.

Nonetheless, the public defenders' campaign worries many supporters of the
three-strikes law, who argue that harsh punishment for repeat offenders has
cut California's crime rate by 42 percent, more than twice the average
reduction nationally, since voters approved the measure in 1994.

"Even though the federal judges said their decision was only for this case,
it absolutely does weaken the three-strikes law as a whole," said Bill
Jones, California's secretary of state, who wrote the law. "We don't want
to see the law unwound or diminished, but that's already beginning."

Rather than wait for the rest of the Ninth Circuit judges to review the
ruling, Bill Lockyer, California's attorney general, is appealing the
Andrade case directly to the Supreme Court, in hopes of getting it reversed
before judges start shortening other sentences.

Concerned that the Supreme Court will overrule the more liberal federal
judges of the Ninth Circuit, as it did in a medical marijuana case last
May, some public defenders are scrambling to challenge sentences quickly,
making use of the favorable ruling for as long as it lasts.

"Frankly, we don't know how long this window will be open," said Carl
Holmes, the public defender in Orange County. "We don't think sitting on
these cases is a good idea, so we're trying to move as quickly as we can."

Of the nearly 7,000 felons serving life sentences under California's
three-strikes law, 57 percent were imprisoned for nonviolent offenses, the
California Department of Corrections reports, including 644 for the
possession of controlled substances and 340 for petty theft.

But not all of those sentences will be challenged, public defenders say,
because many of the offenders have violent histories, making them unlikely
to evoke sympathy in court. Even Kevin Weber, for example, the homeless
Santa Ana man sentenced in 1995 for sneaking through a restaurant grate and
emerging with his pockets full of cookies, had an earlier conviction for an
apartment burglary in which he pulled a gun on the tenant.

"We have to be cautious," said Mark Arnold, the public defender for Kern
County. "If we bring all the three-strikes cases forward for re-
sentencing, we'll lose all our credibility."

On Wednesday, the Ninth Circuit will hear oral arguments on whether to
apply the cruel-and-unusual standard in two more three-strikes cases
involving offenders with violent backgrounds. The outcome could
substantially widen or shrink the type of three-strikes cases public
defenders challenge, barring intervention by the Supreme Court.