Amend ‘3 Strikes,’ Don’t Toss It

Courthouses around the state must look like something out of a Jay Leno skit, with judges clad in traditional black robes unwisely dancing in celebration of the state Supreme Court decision on California’s “three strikes and you’re out” law. In People vs. Romero, the court has once again given trial judges the discretion to plea bargain and reduce the sentences of some of California’s most dangerous criminals. Before these judges become too giddy with their restored discretion, they should pause for a moment to remember the adage, “Be careful what you wish for, because you just might get it.”

With the Romero case, trial courts throughout California now have the power to emasculate the impact of the most significant change to California’s sentencing law in the past three decades. For crime victims, police and prosecutors, this decision carries the potential of producing a public safety disaster. The true beneficiaries of the ruling are the more than 18,000 career criminals who have been sentenced under “three strikes” and now will be seeking to plea bargain with trial judges for more lenient sentences.

Jesus Romero, the defendant in this case, is a prime example of the revolving-door career criminal whom the law sought to incapacitate. For at least 15 years before his prosecution for possession of cocaine, Romero continually preyed upon society. He has spent most of his adult life in jail or prison with no apparent impact on his behavior. Indeed, he was given three separate prison sentences and had previously been convicted of five felonies including residential burglary, commercial burglary and attempted residential burglary.

Over the objection of the prosecution, the trial judge entered into a plea bargain with Romero that removed the application of “three strikes” and limited his sentence to just six years. The Court of Appeal subsequently reversed the trial court’s decision and directed the court to vacate its reduced sentence and reinstate “three strikes.” Romero appealed to the Supreme Court, which approved the exercise of discretion by the trial judge.

As troubling as the Romero decision may be for all those who supported “three strikes,” the opinion does not demonstrate the intellectual dishonesty that typified the decisions of the Rose Bird court more than a decade ago. Thankfully, this court refused to declare “three strikes” unconstitutional. Instead, the court concluded that the law’s wording was not sufficiently clear to remove judges’ authority to plea bargain.

The Legislature can easily rectify this drafting oversight through a simple amendment of the law, and we can expect prosecutors, police, crime victims and many state leaders to encourage the Legislature to do this. Unfortunately, an amendment will require a two-thirds vote in both the Senate and the Assembly, not an easy task even on such an important public safety matter. If the Legislature fails to respond appropriately, it may again be necessary to go directly to the electorate with an initiative.

Whatever action taken by the Legislature, the public should now focus its attention on the response of the trial courts to this decision. Some in the media have characterized this issue as nothing more than a turf battle between district attorneys and the judiciary. This oversimplification ignores the reality that it is a turf battle in which one of the contestants also is a referee. There is the undeniable concern that trial judges, many of whom are philosophically opposed to “three strikes,” may choose to let violent and dangerous criminals back on the streets sooner rather than later.

If they do so, it will not go unnoticed. For although the Romero decision puts the vitality of “three strikes” and its favorable impact upon public safety at grave risk, the ultimate long-term impact of the decision is in the hands of the trial courts. California prosecutors no doubt will keep careful records of the sentencing practices of all judges. Judges who seriously consider undermining the impact of “three strikes” in the interest of expediting their court calendars would do well to think about the potential impact of such decisions at the ballot box.