‘Three Strikes’ and a Balk: Beneficial Statutory Clinker : Law: The new statute starts the count on felonies now, not retroactively. If it’s a legislative error, it’s fair; leave it as is.

Imagine a batter stepping up to the plate. The pitcher winds up and throws. The umpire says nothing. Then comes the second pitch and the third. Silence. Only after the sixth pitch does the umpire yell, “You’re out!” The outraged batter demands an explanation. “The first, fourth and sixth pitches were strikes,” says the umpire.

That’s not the way baseball is played. Thanks to a little-noticed clause in the “three strikes and you’re out” measure enacted by the Legislature, that’s not the way sentencing should be conducted in California either.

The clinker is in the definition of what constitutes “prior felony convictions” that will count as strikes to boost the penalty of second or third offenses. Section 667 (d)(1) of the new measure provides:

“The determination of whether a prior conviction is a prior felony conviction for purposes of (“three strikes”) shall be made upon the date of that prior conviction.”

In other words, the person convicted of a felony will learn at his or her sentencing whether that conviction counts as strike one (or two).

Prospective application of “three strikes” will be a welcome reprieve for California’s economy. The fiscal impact of the law will be more gradual since it won’t require the massive buildup of prisons that would have been necessary if the measure were immediately applied to felonies committed before its enactment.

The deterrent impact the measure was designed to achieve will be better served by prospective application. If defendants are told at their first conviction that it will have drastic future consequences even after they’ve served their sentence--doubling the sentence for their second offense and producing a life sentence for their third--the second and third offense may be less likely to ever occur.

Of course, some will claim that the “clinker clause” was unintended, a drafting error. They will assert that the intent of the Legislature was to lock up more felons longer, immediately. They will look in vain, however, for any language in the measure that suggests it was intended to apply retroactively to convictions occurring before the law was enacted. And the courts ordinarily hold that extrinsic evidence of legislative intent is irrelevant when the language used is unambiguous. There is nothing ambiguous about the requirement that a determination of whether a conviction can be used to enhance subsequent sentences “shall be made upon the date of that prior conviction.” To read it any other way requires that different words be substituted for the words used by the Legislature.

The courts have occasionally been willing to rewrite legislation where literal application of the language used would produce an absurd or stupid result that never could have been intended by rational legislators. But that principle has no application here. Prospective application is an entirely rational and useful tool to serve the deterrent purpose of the law. Retroactive application would be absurd and stupid, not least for the total disruption of our judicial and correctional systems.

One final principle of statutory construction might have relevance here. It is expressed in the Latin maxim, Lex ignorantium, beneficium curiae-- a thoughtless law benefits the judge. While it is never expressed in judicial opinions, the compelling logic of this maxim finds frequent application. If language used by the Legislature is so careless that it’s apparent no one even read it before voting for it, then it will be construed in a manner that suits the judiciary. Which is as it should be. Where else can we turn when statutory clinkers are foisted on us by legislators more adept at political sloganeering than clear statements of legal principles?

Immediate application of “three strikes” to prior felonies will require all judicial resources to be reallocated to the trial of criminal cases. If that’s what the legislators really intended, they still have the last word. They need only amend the legislation to express their intent clearly. Before exercising this power, though, they might consider that the rules for sentencing felons should be at least as fair as the rules in baseball--that each strike is called before anyone is declared out.