Celebrity Victims Make Bad Law

The question voters should be asking their lawmakers in the wake of the state Supreme Court’s “three strikes” decision is: What price will Californians have to pay for putting celebrity victimhood ahead of legal expertise?

In what was a routine statutory analysis, the court said that, even under the “three strikes” sentencing, judges retain the limited authority they have had since 1850 to dismiss prior convictions in cases where justice demands it.

In early 1994, the California Legislature moved at warp speed to enact the most punitive and sweeping of the “three strikes” bills that were introduced after the murder of Polly Klaas by a repeat offender. It called for life sentences for three-time offenders, even those whose previous and current crimes did not involve violence.

Whenever a voice, whether that of prosecutor or defense attorney, urged reason, moderation and deliberation, our elected representatives became instantly hard of hearing.

Only one voice was heard in Sacramento that spring. It belonged to Mike Reynolds, whose personal tragedy--the murder of his daughter by a repeat felon some years before--had transformed him into a presumed criminal justice expert. Reynolds threatened lawmakers that unless they enacted his version of “three strikes,” he would go to the voters with an initiative that would expose their cowardice in the face of a tidal wave of support for harsher punishments. Where did politicians want to be in November? Riding the crest of the wave, or crushed at the polls? Not a tough choice in Sacramento. Indeed, ironically, in their haste to give Reynolds what he wanted, the legislators left in the bill exactly the provision that drew the high court’s ruling: a reference acknowledging the section of the Penal Code that gives sentencing judges the power to dismiss prior convictions “in furtherance of justice.”

Reynolds went ahead with the initiative anyway and it was passed by the voters by 72%.

Thursday’s ruling was a straightforward one, grounded in historical principles of statutory interpretation and state constitutional law. The unanimous court simply decided that inclusion in “three strikes” of this explicit reference to judges’ discretion in sentencing and the rejection of an amendment that would have deleted this language can only be interpreted “as a deliberate choice” by the lawmakers to retain the sentencing court’s authority to dismiss prior convictions in these cases.

Central to the ruling is a reaffirmation of the doctrine of separation of powers, a cornerstone of American democracy designed to protect the citizenry against the concentration of political control in the hands of a single person or branch of government. The Supreme Court did not dispute the legislature’s authority to do away with judicial discretion in sentencing. Indeed, the justices cited a number of mandatory sentencing statutes they have already upheld. This court simply followed a long line of cases holding that when judges are empowered to sentence--and sentencing has historically been a judicial function--they must do so independently, not subject to prosecutorial veto. The opinion emphasized what defense lawyers, prosecutors and trial judges know well: The discretion to strike prior convictions is not unlimited. In practical terms, it will apply only when the court has before it an offender who is not likely to engage in future violent conduct. Prosecutors are free to seek review of sentences where they believe the court has abused this limited prerogative.

“Judicial independence” is dangerous. The last time state Supreme Court justices were viewed as untethered to the political will, California voters, encouraged by politicians who promised a meaner, tougher judiciary, tossed them out. The court that decided the “three strikes” case is the realization of that promise. All the justices save one are appointees of Govs. George Deukmejian or Pete Wilson. The opinion’s author, Justice Kathryn Mickle Werdegar, is a longtime close associate of Wilson. This is, after all, the same California Supreme Court that, at a rate now running 98%, affirms more death penalty judgments than any other court in the nation.

This is also the court that Reynolds and his Republican cronies now condemn for its refusal to goose-step to the tune of what he called the “new authority.” Unfortunately, Reynolds wields a type of brute force as a media celebrity that carries no accountability. It permits him to shift the blame for his folly and that of the Legislature to this most politically vulnerable branch of government.

Before Thursday’s ruling, judges were not routinely dismissing “third strikes.” Even in the comparatively few cases where this occurred, the defendants still received substantial prison terms. Faced with the ridiculous--grand theft pizza or stealing a can of beer from a liquor store--no sensible judge would impose a life sentence. Unfortunately, we live in a culture where rationality and criminal justice legislation seldom occupy the same space.