Judges Who Insist on True Justice : Three-strike law provokes powerful enemies

Bad cases make for bad law, runs the old saying, and just as surely bad law can make for egregious injustices. California’s “three strikes” law, which mandates tough prison terms for second and third felony convictions, is an obvious example of bad law. It’s bad not because it aims to lock up dangerous criminals for long periods--a lifetime, in its severest application--but because it fails to differentiate between crimes that greatly threaten society and crimes that, while they certainly deserve to be punished, are not as serious.

A number of judges, sometimes laudably, sometimes disturbingly, are beginning to insist on making that differentiation on their own. A minor judicial revolt may be underway as the three-strikes law, in all its implications, reaches the courtroom.

In Santa Rosa, Superior Court Judge Lawrence Antolini, a strict law-and-order appointee of former Gov. George Deukmejian, says he will refuse to sentence a man to jail for up to eight years after the man pleaded no contest to possessing a small amount of marijuana while an inmate at a county honor farm. A prior felony burglary conviction would, under the law, merit such a sentence. But Antolini believes that such punishment in this case would be wildly disproportionate, amounting to constitutionally forbidden cruel and unusual punishment. The Sonoma County district attorney promises to appeal Antolini’s intention to impose only a one-year jail term, on the grounds that he does not have the discretion to ignore the sentence mandated by the three-strikes law.

That issue of discretion, of allowing a judge to take into account circumstances and contingencies not provided for in the cold language of a law, is vital in trying to see that justice is really done. To be sure, abuses occur. A case in Santa Barbara, for example, has seen a municipal court judge who has openly scorned the three-strikes law reducing to a misdemeanor a felony child-abuse charge filed against a man with five prior felony convictions. The prosecution will probably appeal, and from all appearances it deserves to win.

The three-strikes law, like its initiative echo on the November ballot, is an attempt to deal with career criminals who threaten society. Its fault lies in failure to distinguish among the degrees of threat posed. Violent criminals should be locked up for long periods, even life, to protect society. But to force judges to order three-time losers who have no record of violent behavior locked up for 25 years to life is simply absurd.

No one can be comfortable seeing judges deliberately ignoring the law; anarchy on the bench is no less dangerous than anarchy in the streets. No one can be comfortable either with a system that, far too often up until now, has set loose criminals whose violent behavior cried out for extended, even permanent incarceration. But some sense of proportion, of reasoned differentiation, has to be restored to the sentencing process. The three-strike law needs a narrower focus. Judges should have some of their discretionary authority in sentencing returned.