"Three Strikes" Striking Out With California Judges & D.A.s

SENTENCING November 1994

A Los Angeles Times series finds that the new California "three strikes" law designed to crack down on violent crime is not working at it was intended (Richard Lee Colvin and Ted Rohrlich, "Courts Toss Curveballs to '3 Strikes,'" Los Angeles Times, Oct. 23, 1994, p. 1; Claire Spiegel, "'3 Strikes' Loophole Can Give Offenders a Break," Los Angeles Times, Oct. 24, 1994, p. 1).

The first part of the series finds that judges and prosecutors are balking at putting the law into effect, not giving defendants the stiff new penalties. In all 98 cases resolved between March (when the law took effect) and the end of August in which the defendant would be mandated to receive 25 years to life, only one in six defendants was given that sentence. In fact, third strike defendants were more likely to receive a sentence of one year in jail than to receive a life sentence. Most defendants were charged with shoplifting or drug offenses, with only one in five charged with committing a violent crime. However, the "three strikes" provisions seem to have caused lengthier sentences than those that would have been handed out before the new law.

"I refuse to dispense injustice," said Judge Carol J. Fieldhouse of the Los Angeles Superior Court. "I wasn't put here to annihilate people because some politically hungry morons wanted to."

The California law outlines that defendants who have been convicted of two or more violent or serious crimes will receive the stiffer penalty if convicted of another felony. The third strike offense can be any of 500 crimes, from participating in an office betting pool to murder.

Because the range of third strike offenses is so vast, judges have begun to set their own standards for what constitutes a serious third strike offense. Prosecutors have also shown some discretion, choosing to ignore the defendant's second strike in some cases. In 25 cases district attorneys gave breaks to defendants, and judges ruled in ways favorable to 27 other defendants. Under the new law, prosecutors are allowed to ignore the second offense but judges are not.

Not all judges and prosecutors are giving defendants breaks, however. Some who talked to the Times expressed frustration with the new law, but felt powerless to do anything about it.

The second part of the series finds that many violent repeat offenders have discovered a loophole in the law that allows them to circumvent the system by having their third strike offense classified as a parole violation and not as a new offense.

The Times studied 100 of the 239 felony arrestee files sent by the Los Angeles County district attorney to parole authorities between March and the end of August. In many cases, just the sort of offenders that citizens expected the new law to target are able to avoid long stays in prison through this loophole.

The article suggests that the district attorney's office, faced with a flooded court docket, is referring weaker cases to parole officials instead of sending them on for trial. Because the standard of evidence for a parole violation ("preponderance of evidence") is so much less than that needed for conviction, these offenders get prison terms of up to a year instead of the 25 years to life.