Strong on the Law

The State Supreme Court acted correctly this week when it ruled that judges may still ignore a defendant’s criminal record in imposing sentence despite language in Proposition 8 that apparently mandated extra prison time for each past offense. If it weren’t for the political controversy now surrounding the court, this ruling would be seen as the sensible and judicially proper decision that it is.

The problem confronting the justices was that Section 1385 of the California Penal Code permits trial judges to “strike” prior convictions “in the furtherance of justice.” Judges have had this authority since the middle of the 19th Century. Since 1956, the state Supreme Court has ruled consistently that the people or the people’s representatives have the right to remove the discretion of trial judges but that they must say explicitly that that is what they intend to do.

In 1982, in the face of these rulings, the voters enacted Proposition 8, the Victims’ Bill of Rights. One of its provisions held that anyone convicted of a serious felony who had been convicted of a serious felony before “shall” have his sentence lengthened by five years for each prior conviction.

That’s all well and good, the Supreme Court said this week in a clear and short opinion written by Justice Otto M. Kaus, but it doesn’t explicitly take away the trial judge’s authority under Section 1385 to strike the prior convictions. That is, the judge’s power to strike remains intact until and unless a new statute is passed that explicitly revokes it. It would be perfectly legal, the justices said, for the Legislature or the voters to enact such a statute, but they haven’t done it.

This is not the first time that poor draftsmanship of a voter initiative has led to confusion or worse. The court is trying conscientiously to work its way through this mess and give meaning to the sometimes conflicting or opaque language that the voters enact. In this case, the drafters of Proposition 8 should have known that an explicit revocation of Section 1385 was required to accomplish what they seem to have wanted. They have only themselves to blame for the outcome.

It ill behooves Gov. George Deukmejian to attack the court, which has acted with judicial restraint. He seeks to whip up public sentiment to remove Chief Justice Rose Elizabeth Bird and three of her colleagues, whom he accuses of being soft on criminals. The charge is not true. Far from being soft on criminals, the justices are being strong on the law.