Overturning the California Three Strike Law
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JEFFREY KAYE: California’s “three strikes” law was designed to crack down on repeat felons. Passed by the legislature and endorsed by voters in 1994, it mandates a sentence of 25 years to life for a third felony conviction if the previous felonies were serious our violent.
SPOKESMAN: Mr. Caruso’s here as announced, ready for trial. Mr. Gonzalez is announced, ready for trial. This is a third strike, twenty-five year-life case.
JEFFREY KAYE: Judges have complained that the law takes away their discretion and yesterday in a unanimous opinion, the California Supreme Court agreed. It ruled when the jurisdiction of a court has been properly invoked by the firing of a criminal charge, the disposition of that charge becomes a judicial responsibility. The ruling involved a 1994 case from San Diego. The defendant, Jesus Romero, was charged with possessing a small amount of crack cocaine. He had two strikes, prior convictions for burglary and attempted burglary. Under the “three strikes” law, he could receive twenty-five to life, a punishment the judge considered cruel and unusual. He set aside the prior convictions and sentenced Romero to six years in prison. Prosecutors argued unsuccessfully that only they should have the power to disregard the previous felonies. While yesterday’s ruling allows California judges to impose more lenient sentences, some politicians are hoping to nullify the decision with a new law calling for mandatory penalties. This issue will be watched carefully beyond California. At least 23 other states have passed similar “three strikes” laws.
JEFFREY KAYE: Now two perspectives on how much discretion judges should have in sentencing. With me are LA Superior Court Judge William Pounders–he heads a committee of judges that has written guidelines for sentencing under the “three strikes” law–and Republican Curt Pringle, speaker of the California state assembly. Gentlemen, thanks very much for being with us. Let me start with you, if I can, Judge, Judge Pounders. What do you think would be the impact of this ruling?
JUDGE WILLIAM POUNDERS, Los Angeles Superior Court: (Los Angeles) I think it’ll essentially be a fine-tuning of the “three strikes” law. There will not be an opening of the jail gates letting all of these people out that have been convicted, and it will not change substantially the cases that are now pending. It will simply fine tune or adjust the process to eliminate those cases I think that were egregiously harsh in the sentencing.
JEFFREY KAYE: But the ruling was retroactive.
JUDGE WILLIAM POUNDERS: That’s correct. And that’s why I’m saying the cases that are in the process, as well as those that have been completed, those that are in jail now or in state prison as a result, those cases have to be reviewed as well, but that does not mean that the result will change substantially.
JEFFREY KAYE: Do you have any idea how many cases might be reviewed?
JUDGE WILLIAM POUNDERS: Well, the–it depends on the circumstances. It looks like from Los Angeles County about 4,000 cases that have been concluded and about 25 percent of those people went to state prison, so I would imagine the state prison cases will be the ones that come back to us in the form of habeas corpus as the Supreme Court has indicated.
JEFFREY KAYE: Now, to what extent will there be resentencing hearings, and could people who were sentenced for life in prison all of a sudden find themselves on the streets?
JUDGE WILLIAM POUNDERS: That’s a question we’re dealing with currently. The process is going to be a very difficult one. We do not want to bring all of the people back to court and recongest the courts with all of these cases. What we want to do is review the record to see whether a judge did exercise any discretion or say that that judge would not under any circumstances do so, and in the few cases where that hasn’t been done then to see that a discretion is exercised. But that may well be in most cases that nothing further is done, i.e., that the sentence was appropriate under the circumstances.
JEFFREY KAYE: Now you saw this coming, right?
JUDGE WILLIAM POUNDERS: Yes. But back in May of last year, we had a training seminar for the judges in Los Angeles County predicting exactly this result and indicating that we should have a process in place to treat all of the cases equally and that we should not have judges standing out being extremely liberal or extremely conservative on these issues.
JEFFREY KAYE: Have you been exercising discretion?
JUDGE WILLIAM POUNDERS: I have been, yes. Over the course of the last year, I have exercised that discretion three times out of all of the cases I have had.
JEFFREY KAYE: Give me an example of where you, you’ve seen fit to exercise discretion.
JUDGE WILLIAM POUNDERS: I think the best example was a case in which I did eliminate a strike for a man who was charged with going into a grocery store and taking four cans of instant coffee. That was a felony. It was petty theft with a prior because it wasn’t charged as a burglary. It doesn’t make any difference under the “three strikes” law how serious the third strike is. He had two very serious prior strikes, but they were 20 years old. And in the last 20 years, he had basically rehabilitated himself. So I felt that 25 years to life for stealing four cans of coffee was excessive. I did eliminate a strike. I offered–the defense accepted 12 years, which essentially is three years for every can of coffee he stole–but I thought that was pretty serious as it was. And everyone seemed satisfied with it; even the prosecutor agreed that the discretion was appropriately exercised.
JEFFREY KAYE: But, Mr. Pringle, you would not be here satisfied, I gather, with that?
STATE REP. CURT PRINGLE, California Assembly Speaker: Well, the way the “three strikes” law was originally written, that prosecutor have moved forward and done exactly what the judge did in that instance. He could have gone and asked the judge in open court to strike one of those prior convictions, and prosecutors do do that. Prosecutors do have that discretion, and that was a part of the initial, the initiative and also the legislative measure that put “three strikes” in place in California in 1994. The public, the legislature knew very well what discretion they were giving to the prosecution, as well as to the judge, because it requires a dual acceptance before a prior is struck in that instance.
JEFFREY KAYE: What do you think the impact will be?
STATE REP. CURT PRINGLE: Well, I think the judge has pointed very clearly that when you have 1500 people convicted to a third strike since 1994, another 15,000 that have been convicted to a second strike in California, that all of those cases would be up potentially for review. And I think that is a, a great threat to the public safety, and that is certainly what is, what–why the public by 72 percent vote put in place a “three strikes” initiative. I mean, all of these elements of the debate were parts of the debate during the campaign. In California, we have an initiative process, and the public responded to that initiative process and moved forward with this initiative. They very clearly knew what was part of this initiative when they passed it.
JEFFREY KAYE: So what do you plan to do now?
STATE REP. CURT PRINGLE: Well, there are right now legal scholars reviewing exactly what options we have. The way the ruling was presented it basically said if discretion is to be provided, it needs to be the discretion of the judge, therefore, we could move forward with legislation that eliminates all discretion in these cases. And I don’t think that’s right. I mean, literally we have talked about discretion and the public wanted a degree of discretion for certain instances that may have been a marginal call, but they did not want wholesale discretion, as we are afraid may happen in some courts, certainly not this judge’s court, but in some courts in California.
JEFFREY KAYE: So if you had your preference, in other words, you don’t realize exactly how you’re going to handle this, what would you do? How would you–
STATE REP. CURT PRINGLE: If I had my preference, I would have hoped that the court hadn’t ruled the way they ruled.
JEFFREY KAYE: Right. Now they’ve ruled.
STATE REP. CURT PRINGLE: And now they’ve ruled, and you can–we need to proceed either with a statutory change to modify that discretion, or move to a constitutional change as “three strikes” was a constitutional amendment in the first place.
JEFFREY KAYE: And take away the judge’s discretion completely.
STATE REP. CURT PRINGLE: Or provide for the discretion in some mutual or shared way that does meet the court’s desire.
JEFFREY KAYE: Why should–Mr. Pounders, why do you believe judges should have discretion, if that’s not what the public intended?
JUDGE WILLIAM POUNDERS: As I indicated, I think it’s for fine tuning of the process, and I do think it is what the public wants. What we have seen is in several cases, in our courthouse alone, the defense team has simply offered everything to the jury, i.e., the current case and the priors, and let the jury decide. And it does not take a lot of intelligence to add two and one to get three. They know it’s a third strike case, and what we’ve had as a result is acquittals on very strong cases. The third time around they’re not going to convict this person because they think the sentence of 25 years is too harsh. The judges can modify that.
JEFFREY KAYE: Why shouldn’t the judges have discretion, Mr. Pringle?
STATE REP. CURT PRINGLE: Well, the judges do have discretion under the way the law was originally written. They don’t have exclusive discretion, and that’s what the Supreme Court said, that the judge should be the only entity that provides that discretion. The initiative, the law that was put in place, has said the prosecutor has that discretion to initially ask to strike a prior, and the judge has to agree to that. And that was what the public wanted. That is what the public proceeded with, and that’s what the law was. And I guess the debate now is after the fact, and unfortunately, it reopens the Pandora’s Box of all of these that have been convicted in the past, but the point of the matter is this public debate did take place in 1994 throughout the course of the year when, when by a bipartisan vote, 2/3 of the membership of the legislature and by nearly 75 percent margin, the people of California put this law in place.
JEFFREY KAYE: Mm-hmm. Would you respond to that. If that’s what the people wanted, why, why should the judges get back into this?
JUDGE WILLIAM POUNDERS: That’s exactly what I’m saying. They didn’t understand that in some of these minor cases, that people would be facing 25 years to life. Let me give you a very vivid example. Sale of a rock to an individual on the street representing it to be rock cocaine but it’s in actuality a macadamia nut, that’s a felony. Does that person deserve 25 years to life, regardless of their prior offenses? That’s almost one criminal ripping off another criminal.
JEFFREY KAYE: Mm-hmm.
JUDGE WILLIAM POUNDERS: That’s the most minor felony, but this law does not take any distinction between that and first degree murder. I think those adjustments have to be made, and I don’t believe the law can set it in place. And that’s why judges have discretion.
JEFFREY KAYE: Those adjustments have to be made by the judge or by–
JUDGE WILLIAM POUNDERS: By the judge, yes. I don’t think you can put all the rules down whereby you come out with exactly the right result in every case. You cannot predict all of the variances.
STATE REP. CURT PRINGLE: Well, also within this initiative, it allows for modifications of the law, itself, of modifications by 2/3 vote of the legislature, and unfortunately by the judicial activism of the Supreme Court, that too has been challenged, and that is a concern I have. The judge mentions a sale of a rock or macadamia nut, but with two prior convictions as a serious or violent felony. That person had two prior convictions, and that’s exactly what the people in California wanted to do, is go after repeat offenders.
JEFFREY KAYE: Is this a turf battle between who should have power, judges or the legislature, or, or is there a constitutional issue, Judge Pounders?
JUDGE WILLIAM POUNDERS: It’s clearly a constitutional question. Article III, Section 3 of our Constitution says there is a separation of powers, that no one person should exercise authority in the Executive Branch, the Judicial Branch, or the Legislative Branch at the same time, not all–two out of the three at any one time. So I don’t think that it’s a turf war, and I do think it’s very appropriate that the judges try to resolve the situation that seems to be so outrageous for some people. As I said, you can’t ignore the fact that some juries acquit defendants on clear cases to avoid this kind of penalty. Those are the same voters that believed in the third strike law in the first place.
JEFFREY KAYE: Mr. Pringle, turf battle?
STATE REP. CURT PRINGLE: Unfortunate, I do believe it’s a turf battle, but not necessarily between the judiciary and the legislature, but between the judiciary and the people. The people voted very clearly for this law to go into effect. They cast their votes, and it’s probably one of the largest majorities that has been seen on an initiative in decades in California. And it’s significant, and I believe that the Supreme Court decision is significant and reduces the–eliminates the will of the people in this regard.
JEFFREY KAYE: All right. We have to leave it there. Judge Pounders, Mr. Pringle, thank you very much for coming.