Judge Says He’ll Defy ‘3 Strikes’ Sentencing Law

Judge Lawrence Antolini is not what you would call soft on crime. A former prosecutor, he is a no-nonsense jurist who was named to the Sonoma County Superior Court by Mr. Law and Order himself, former Gov. George Deukmejian.

As Antolini puts it: “I’m not exactly a flaming liberal.”

Nevertheless, the judge this week declared war on something dear to the hearts of California’s most hard-core crime busters--the state’s new “three strikes and you’re out” law.

In what may be the first episode of its kind, Antolini announced that he will defy the law and refuse to send a Santa Rosa man to state prison for getting caught with a marijuana cigarette on a county honor farm.

“I am all for protecting society from violent, repeat offenders,” the judge said in an interview. “But that’s not what we have in this case. This man is not a threat to anyone, and to send him away like the law requires would be insane.”

As Antolini sees it, applying the “three strikes” law in the case of Jeffrey Dean Missamore would be unconstitutional. Sentencing such a nonviolent offender to a state prison term, the judge says, would amount to cruel and unusual punishment in violation of the 8th Amendment.

Antolini also believes the law turns judges into “robots,” stripping them of their discretion to decide what sort of punishment fits a given crime. And he predicts that the statute will bankrupt the state by requiring the construction of prisons to house a ballooning population of convicts.

Under the “three strikes” law, an offender with two serious or violent felonies faces 25 years to life in prison if convicted of a third felony of any kind.

Sonoma County Dist. Atty. Gene Tunney said he admires the judge for going out on a limb but disagrees with his position in the case at hand. If Antolini makes good on his pledge to ignore the sentence mandated by the “three strikes” law, “we will appeal and we will win,” Tunney said.

Antolini is not the first judge to protest the controversial law, enacted March 7 by the Legislature in the wake of the gruesome kidnaping and murder of 12-year-old Polly Klaas of Petaluma.

In Santa Barbara County, a municipal judge recently called the law “a piece of junk” and reduced a “three strikes” felony case to a misdemeanor to circumvent its harsh sentencing mandates.

In San Diego County, a retired judge filling in on the municipal bench took a similar step, reducing a petty theft charge from a felony to a misdemeanor and declaring the law unconstitutional as applied in the case before him. In another San Diego case, a judge ordered a defendant’s two prior felony convictions dropped, sparing the man a possible life sentence for stealing a beer from a convenience store.

“This law has put judges in a terrible position,” said Constance Dove, executive director of the California Judges Assn. “It removes their discretion to decide what level of punishment is fair given the crime.”

At the center of the Sonoma County dispute is Missamore, an auto mechanic and ex-Marine. Missamore, 32, has been in and out of trouble--none of it involving violence--for about a decade, a record he attributes to his drug habit and alcoholism.

The case dates to April, when he was caught with eight grams of marijuana and rolling papers at a county honor farm. He was at the facility to serve a four-month sentence for stealing $12 worth of food from a grocery store, which his attorney said he needed to feed his family.

On Monday, Missamore pleaded no contest to the marijuana charge, a felony. Because he had a prior felony conviction--for a 1984 burglary in which he stole his roommate’s VCR--the new offense meant Missamore fell under a provision of the “three strikes” law.

Under that provision, Missamore must be sentenced to up to eight years in prison. But in a move that stunned the Sonoma County courthouse, Antolini declared that he will not follow that mandate when he formally sentences Missamore on Aug. 11.

Instead, the judge indicated that he will send Missamore to jail for one year, place him on probation for up to five years and order him to enter a residential treatment program for drug offenders.

“This is a guy who has no violence in his past, who is doing well in drug rehabilitation and who has a 5-month-old child,” Antolini said in the interview. “I don’t believe he’s the kind of person the Legislature had in mind when they passed this law.”

Deputy Public Defender Kathleen Pozzi, Missamore’s attorney, called Antolini’s action “courageous and unusual,” describing him as a “strict, tough judge who doesn’t hesitate to send people to prison for long periods of time.”

Pozzi said her client wept with relief after the judge announced his intention: “He’s been beating himself up about the marijuana because he knows that was a dumb thing to do. But he didn’t feel he was the kind of person this law was aimed at. He is not a violent guy.”

Antolini said his stand has triggered a flood of public reaction--all of it supportive.

“I’m getting congratulated in the hallways by clerks and lawyers, but I’m also getting calls from regular people who say, ‘I’m a conservative Republican but I support what you’re doing,’ ” Antolini said.

Marc Klaas, father of Polly Klaas, was among those who praised the judge. Klaas said the “three strikes” law casts “too wide a net” and should have focused on violent criminals.

Despite such support, Antolini faces long odds if his decision is appealed, as expected, by the district attorney, several legal experts said.

“Morally, he’s entirely right because this law is idiotic,” said Robert Weisberg, a professor of criminal law at Stanford University. “But legally, I’m afraid he’s on the wrong side of the U.S. Supreme Court.”