- The Washington Times - Tuesday, January 22, 2002

LOS ANGELES Activists in California are working to make the state’s seminal “three strikes” law more lenient, saying that too many small-time criminals are going to prison under a law intended to lock away violent predators.
“There are issues of justice, of fairness, or morality,” said Sam Clauder, head of an effort to put a three-strikes change on the November ballot, “but it is also a question of money” as defendants clog courts and prisons.
Mr. Clauder and other critics say the law makes no distinction between violent felons and nonviolent ones. They point to cases where defendants have wound up facing 25 years to life in prison the three-strikes penalty for offenses as minor as shoplifting and petty theft, which can be prosecuted as felonies under California law.
State Assemblywoman Jackie Goldberg, Los Angeles Democrat, is sponsoring a bill similar to Mr. Clauder’s initiative, though the measure would wait until 2004 to put the change before state voters. Mrs. Goldberg said she believes it will take at least that long to educate the public on the flaws in the current system.
“I think this whole business of trying to prove how tough you are on crime has led to a terrible injustice in this state, and it is not reducing crime,” she said.
Under current law, mandated by California voters under a 1993 ballot initiative, persons with two or more serious felonies on their records can face up to life in prison if convicted of a third. But while the previous convictions must be for violent or very serious felonies such as murder, rape or robbery the law does not specify that the third offense must be a violent felony.
Both Mr. Clauder’s initiative and Mrs. Goldberg’s bill would change that. Mr. Clauder’s measure would make the three-strikes law apply only to violent felonies. Nonviolent crimes such as burglary, check forgery and drug possession would not qualify.
Mrs. Goldberg’s bill is similar, but it would still include crimes defined as “serious” under California law, including the nonviolent crime of burglary.
Although some prosecutors have been critical of the three-strikes law, they seem uninterested in seeing the law changed.
Los Angeles County District Attorney Steve Cooley campaigned on a promise to treat three-strikes defendants more reasonably and consistently. When he took office last year, he set uniform standards and set rules to prevent prosecutors from unreasonably sending small-time criminals to jail for life.
The law “is a powerful tool for obtaining life sentences in cases involving habitual criminal offenders,” Mr. Cooley wrote in a memo to his prosecutors, reversing the hard-line position of his predecessor, Gil Garcetti. “However, unless used judiciously, it also has the potential for injustice and abuse in the form of disproportionately harsh sentences for relatively minor crimes.”
But Mr. Cooley seems reluctant to support a change that would further limit his ability to use minor offenses to get a dangerous person off the street.
“We want to have that opportunity or that option,” Mr. Cooley said in an interview last week, although he said he has not made any decision about publicly campaigning against the proposed changes.
State Attorney General Bill Lockyear opposes any change. He is asking the Supreme Court to reverse a recent recent 9th U.S. Circuit Court of Appeals decision that found a 50-year sentence imposed on a man charged with shoplifting in San Bernardino County was “cruel and unusual.”
“The attorney general supports the current three-strikes law,” said spokeswoman Hallye Jordan. “He believes it gives enough prosecutorial and judicial discretion” to make sure defendants aren’t given unreasonable sentences.
The state estimates that about 50,000 people have been sentenced under the three-strikes law since 1994. Mr. Clauder said that about 35,000 would be eligible for a new sentence hearing under his proposed ballot initiative.
Neither Mr. Clauder nor Mrs. Goldberg calls for automatically releasing those prisoners. A judge would have to review the case and would have the power to uphold the previous sentence or impose a new presumably shorter sentence.
“I live in a low-income community,” Mrs. Goldberg said. “I’m not anxious to have serious and violent criminals back out on the street to frighten me and my neighbors.”

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