Two Counties at Opposite Poles of ‘3 Strikes’ Debate


This is a tale of two counties and three strikes, of how the distance between San Francisco and San Diego cannot be measured in mere miles when it comes to applying California’s controversial sentencing law.

“In San Francisco, you get caught with a rock of cocaine, and you probably get probation,” says Thomas Whelan, a prosecutor for 20 years before being appointed to the San Diego County Superior Court bench in 1990. “You get on a plane and get to San Diego before you’re caught, and you can get life in prison.”

As Los Angeles County, California’s largest, struggles with a tough-minded approach toward enforcing “three strikes” in a huge and unwieldy system, the state’s other two major urban areas are staking out their own radically different approaches in executing the bold social and legal experiment adopted by statewide voters in 1994.

San Francisco has gone against the dominant mood in the state. San Diego has become a model of efficiency and prosecutorial determination to put thousands of repeat criminals in prison for life.

In both places, prosecutors heard the will of their electorate and responded in kind.


San Francisco, whose county and city governments are combined, voted against the “three strikes” law, 57.3% to 42.7%, and its juries are known to rebel if prosecutors attempt to charge drug possession or nonviolent property crimes under “three strikes.”

San Diego County voted for “three strikes,” 75.6% to 24.4%, and its juries have convicted “three strike” defendants in 94% of cases, including dozens in which the final strike was theft, burglary or drug possession.

San Francisco Dist. Atty. Arlo Smith, aware that liberal San Francisco juries would not convict, frequently declined to prosecute nonviolent crimes as “three strikes” cases. His more liberal successor, Terence Hallinan, who defeated Smith, has been even more restrictive.

San Diego Dist. Atty. Edwin L. Miller Jr., a champion of the “victims’ rights” movement, began using “three strikes” immediately and expansively. His more conservative successor, Paul Pfingst, who edged Miller into premature retirement, has been even more aggressive and methodical.

In the wake of Thursday’s Supreme Court decision giving judges more leeway in sentencing under the 2-year-old law, questions remain about the legality, equity and effectiveness of the “three strike” measure.

But there is no disputing that “three strikes” has proved to be a civic Rorschach test.

The truism about all politics being local may need a corollary: that matters of crime and punishment are also local and subject to the tastes and values of the community--despite attempts at standardization.

San Francisco: ‘We Are Just Very Liberal’

Hallinan, a defense attorney before he became district attorney, is blunt about his distaste for “three strikes”: “I didn’t want to become district attorney to put everyone in prison for life no matter what they did.”

Since taking over in January, Hallinan has established a panel of four prosecutors to review all cases carrying a third felony conviction and minimum 25-year-to-life sentence.

“We pretty much use ‘three strikes’ [only] for vicious people,” Hallinan said. “I myself feel I am able to tell the difference between a bad person and someone who has just done the wrong thing. If you restructure ‘three strikes’ to reach violent or vicious people, you can make a real argument for it.”

Hallinan, 59, a native San Franciscan, has told his deputies that drug crimes are never to be regarded as a third strike unless the defendant has a violent history.

About 50% of the “three strikes” cases charged under Smith were for drugs, said Hallinan, predicting that “three strikes” cases will decline in San Francisco by about that much under his stewardship.

“Unless the guy is a mad murderer or a serial rapist, we are not going to use strikes on drug cases,” said Paul Cummins, who heads Hallinan’s “three strikes” panel. “We’re not going to ask for 25-years-to-life sentences when a guy commits an auto burglary and steals a car radio. We tried it a couple of times and got kicked in the teeth by the jury.”

In one case, Cummins noted, a crime victim refused to testify after learning it was a “three strikes” case.

“In San Francisco, we play to a tougher audience than other D.A.'s do,” Cummins said. “San Francisco has more liberal juries than other jurisdictions like Los Angeles or Orange County or San Diego, and jury nullification is something we have to look at.” (Jury nullification refers to jurors going beyond a judge’s instructions in order to acquit someone because of philosophical objections to the law.)

He added: “It depends on your constituency. Ours is just anti-'three strikes.’ We are just very liberal, wonderful, wild--different.”

Of his San Diego prosecutorial colleagues, Cummins said, “I really like the D.A.'s down in San Diego. They’re an outstanding group of guys, but they have a different jury pool, and they have different constituents than we have.”

Cummins and other San Francisco prosecutors work in seedy offices with dirty windows and shabby furniture in the same building that houses the city’s police department and jail. The telephone message system occasionally breaks down, making it impossible to leave messages for prosecutors.

As Cummins talked, another deputy prosecutor poked his head into Cummins’ office and asked about a case. The deputy was prosecuting a defendant who has two strikes, the second for possession of a controlled substance.

Should he charge the case under “three strikes”? the deputy wanted to know.

“Strike the strike,” Cummins quickly told him. “It’s OK. Just go ahead and strike the strike in the furtherance of justice.”

San Diego: ‘It’s What the People Want’

Any qualms Pfingst had about the “three strikes” law ended when the polls closed on election night Nov. 8, 1994.

While running for district attorney, the onetime star prosecutor told voters that he opposed the “three strikes” initiative because he thought, to avoid prison overcrowding, that the final strike should be a violent or serious felony before someone is sent to prison for life.

Pfingst breezed past his opponent in the runoff, a Municipal Court judge who supported “three strikes.” At the same time, the “three strikes” initiative was adopted.

“The voters in their wisdom elected me district attorney and immediately rejected my first piece of legal advice,” said Pfingst, 44, in his characteristically clipped tones. “I can live with that trade-off.”

To head the office’s “three strikes” unit, Pfingst named Deputy Dist. Atty. Gregg McClain, a former defense attorney. If anything, McClain is even more hard-nosed about “three strikes” than his boss.

“It’s a harsh law,” said McClain. “Paul has said it, I’ve said it. But it’s what the people want, and we’re here to do what the people want, legally.”

Along with the presiding judge of San Diego County and the chief public defender, Pfingst fashioned a streamlined approach to “three strikes” cases that has allowed San Diego to avoid the chaos and calendar-clogging that have afflicted courts in Los Angeles.

As a result, San Diego County prosecutors have sent more “three strikes” defendants to prison per capita than any urban or suburban county in the state.

Pfingst is particularly proud of those figures because he is convinced that “three strikes” has contributed to San Diego’s sharp drop in crime, making it the safest big city in America.

And he is baffled by what San Francisco prosecutors have done. “Three strikes,” he noted, is a state law even if a local constituency did not vote for it.

“For an elected official to ignore a vote of the people sets up an unwholesome, unwise trend that the public has a right to resent,” said Pfingst from his spacious new high-rise office, which has a commanding view of the skyline, San Diego Bay and Coronado and is being equipped with state-of-the-art electronics for teleconferencing and news conferences.

Under Pfingst, the district attorney’s office has adopted guidelines for deciding when to strike prior convictions. Among factors to be weighed are the length of time between felonies, the seriousness of the crime, whether the defendant has served in state prison and whether there is violence or any mental illness in the defendant’s background.

Prosecutors in Pfingst’s “three strikes” unit strike prior convictions in about 25% of cases (compared to 44% in Los Angeles).

There have been cases of convictions in which the “third strike” was the theft of bluejeans, a six-pack of beer or, in the case of one 60-year-old defendant, a pint of whiskey.

Defendants like that fall into the category of repeat offenders who, in the words of Pfingst, McClain and other prosecutors, “have been doing a life sentence on the installment plan"--that is, prison stretches punctuated with a few years of freedom.

One of those was 34-year-old Jesus Romero Jr., whose case led the state Supreme Court on Thursday to decide that judges, not just prosecutors, have the power to disregard prior convictions.

Romero committed his first felony on his 18th birthday, served three prison stretches and had 23 convictions for theft and drug use before being charged under the “three strikes” law with possession of crack cocaine. Pfingst and McClain are unmoved by suggestions that Romero did not deserve a life sentence because none of his offenses involved violence.

“I’ve given up on rehabilitating that class of individual,” said McClain. “This is the end of the line. I’m not a social worker.”

The San Francisco Files

Hallinan has delegated much of the “three strikes” load to his deputies.

Of 54 potential “three strikes” cases this year, his deputies decided to prosecute only 10 of them as “three strikes.” In two of those 10, Hallinan overrode his deputies and decided to seek lesser penalties.

Even when prosecutors take cases to juries, they may have trouble getting convictions. Jurors generally do not know while they are deciding guilt or innocence whether a case is a “third strike” offense. Only after the conviction may jurors be told of the defendant’s prior convictions and asked to affirm them.

* A jury convicted a man of robbery and residential burglary, a “third strike” case that would have landed the defendant about a 75-year sentence, but then jurors split 11 to 1 on the second phase, which in other jurisdictions usually goes forward swiftly and without debate.

“See,” Cummins said with a big smile. “This is San Francisco.”

* In a case of a man convicted of robbing a security guard and trying to steal his car, a juror became agitated and started to cry when she realized it was a “three strikes” case. She and other jurors objected to the proceeding, and the judge was forced to declare a mistrial.

“It was one of the first cases to go in San Francisco under the ‘three strikes’ law,” and it sent a message to prosecutors about the way juries would deal with such defendants in the future, said Assistant Dist. Atty. Robert C. Gordon III.

* Judge Alex Saldamando, who oversees the criminal courts, said he suspects that jury opposition to “three strikes” produced an acquittal in a second-strike case in his courtroom.

“I think the jury kind of smelled that this was a ‘three strikes’ case,” he said.

In San Francisco, “it has become a topic of conversation, if not concern, about how you deal with a jury that feels this is a ‘three strikes’ case and wants to know but is not supposed to know.”

As for the future, there is some concern that San Francisco’s quietly conservative judges may feel political pressure to disregard prior convictions now that the Supreme Court has ruled that judges have such authority.

“It puts too much pressure on the judges,” said Gordon.

He said conservative judges in liberal areas like San Francisco have been able to take refuge in the belief that they had no legal authority to show leniency and therefore could “not be assailed by a liberal opponent” as too hard on criminal defendants.

With a laugh, Gordon acknowledged that judges in most counties want to be perceived as not being soft on criminal defendants.

“In San Francisco,” he said, “everything is upside down.”

The San Diego Files

When Pfingst, a transplanted New Yorker, took office, he made “three strikes” an immediate priority.

He joined with then-Presiding Judge James Milliken and Chief Public Defender Frank Bardsley to create a system in which four judges would hear only “three strikes” cases. Special teams of prosecutors and public defenders would prepare the cases.

The efficiency of the San Diego approach to “three strikes” can be seen in the numbers:

* Half of all “three strikes” cases in San Diego have ended in guilty pleas. While plea-bargaining is technically not allowed under “three strikes,” public defenders are keen to spot when prosecutors have opted not to seek a sentence that exceeds the normal 25-year minimum.

* In the first full year of “three strikes,” the number of criminal trials in San Diego County rose 37%. Yet the increase did not mean a corresponding slowdown in getting civil cases to court, unlike Los Angeles, where “three strikes” cases have to some extent crowded out civil cases.

* “Three strikes” cases have moved so swiftly that the “three strikes” court has been trimmed from four judges to three.

One price of efficiency, however, has been that some judges have been required to hand out sentences they felt were too harsh. (William Mudd, the judge whose refusal to give Jesus Romero Jr. a life sentence set the stage for the Supreme Court decision, is not one of the “three strikes"-only judges. He ruled on Romero before the court was established.)

Some judges, like Whelan, have told defendants from the bench that if “three strikes” is ever overturned, they would trim their sentences. Others delayed sentencing until the Romero case was resolved.

Despite Thursday’s decision, Pfingst said his prosecutors will not change how they approach “three strikes” cases. If “three strikes” is to be watered down in San Diego, he said, it will be judges doing it, not prosecutors.

“This decision, in effect, allows judges to reduce the impact and effectiveness of the ‘three strikes’ law in the state of California,” Pfingst said at a news conference just hours after the decision. “It’s my hope that the Superior Court will see fit to enforce the law the way the voters want.”

During a debate on radio the next morning between Pfingst and a deputy public defender, the moderator made a semi-mocking reference to Jesus Romero as a “poor guy.”

“No,” Pfingst shot back. “Poor victim. This isn’t about Mr. Romero. It’s about his victims.”

Dolan reported from San Francisco, Perry from San Diego.