The Serious Wrinkles Still in ‘Three Strikes’ : A year later and California is still trying to get it right

California’s “three-strikes-and you’re out” law is now a year old. New reports on how that law is working will temper the satisfaction of lawmakers who so assiduously sought its passage last year but who are now considering further legislative changes.

The good news is that the revolving door has stopped for some of the worst criminals. State officials report that about 5,000 criminals have now been convicted on second-strike charges and are serving prison terms twice as long as those they might have received before. About 150 others were convicted on third-strike felonies and sentenced to 25 years to life. Among these are the worst of the worst--violent thugs with records that demand their permanent incarceration. Word of California’s tough law has gotten out; law enforcement officials report that some paroled felons now head for other states rather than risk another “strike.”

But because of its sloppy language, “three strikes” may have keep the prison door jammed shut--at high taxpayer expense--for many nonviolent criminals. The law makes no distinction among the 500 crimes that are felonies in California, crimes that range from passing a bad check to homicide. A third conviction for any one of these carries a mandatory sentence of 25 years to life.

The legislative analyst’s office, the nonpartisan research arm of the Legislature, found that 70% of all second- and third-strike cases filed last year were for nonviolent offenses. The largest categories were for drug possession and burglary. Those convicted of such felonies undoubtedly deserve punishment, but 25 years to life? Such sentences for even repeat, nonviolent offenders are disproportionate and are imposing extraordinary costs on the state.

Those costs are more than financial. Because the consequence of a felony conviction is now so high, most felony defendants refuse to accept plea bargains, preferring to gamble on acquittal by a jury. Felony trials in Los Angeles County increased by 31% in January and February over the same two months last year. As a result, the backlog of untried criminal cases is so large that in many parts of the state--Los Angeles in particular--civil trials are delayed or repeatedly interrupted.

The bulge of second- and third-strike inmates awaiting sentencing in the county jail has forced Sheriff Sherman Block to release early some inmates who have committed serious but non-strike crimes such as fleeing from the scene of an accident. Block and other sheriffs around the state have no choice but to continue this practice. But as they do, the state sends a dismal message: California has few resources to punish those who commit petty theft or who threaten spousal abuse, yet the state will come down like a sledgehammer on those who are convicted a third time for writing bad checks.

Other states have learned the lesson we haven’t. The New Jersey Legislature last month passed a version of “three strikes” that wisely reserves a life sentence for those who commit a third, violent offense.

Instead, the California Legislature continues to move in the other direction. Lawmakers will soon consider a bill that would further constrain the ability of judges to dismiss or ignore a defendant’s prior criminal record regardless of the nature or severity of those crimes and would count as “strikes” some convictions rendered by judges in juvenile proceedings where defendants have no right to a jury trial. At best, these changes are unnecessary; at worst they threaten to make our clumsy, costly “three-strikes” law even more so.