NEWS ANALYSIS : Ruling May Force ‘3 Strikes’ Backers to Dilute Law

As lawmakers rush to respond to a high court decision they say undermines the “three strikes” law, they may find themselves in the uncomfortable position of weakening the law the Legislature and voters overwhelmingly approved in 1994.

The state Supreme Court last week modified the law, ruling that judges have the power to grant leniency in all “three strikes” cases by overlooking past crimes, even if the crimes are deemed serious or violent.

But as they scramble to reinstate the mandatory sentencing requirement, lawmakers may make the “three strikes” law somewhat narrower.

At the same time, an increasing number of experts, from Atty. Gen. Dan Lungren to researchers outside government, contend that the California Supreme Court decision will have little or no impact on the strength of what had been called the nation’s harshest sentencing law.

“I don’t think the Supreme Court ruling is going to make one bit of difference,” said Allan Abrahamse, a researcher at the Rand Corp. in Santa Monica who has studied “three strikes.”

“You’re [still] going to need new prisons,” said Assembly Democratic Leader Richard Katz of Sylmar.

As they work on their response to the “three strikes” ruling, Gov. Pete Wilson, Senate Republican Leader Rob Hurtt and Assembly Speaker Curt Pringle (R-Garden Grove), all strong supporters of the original “three strikes” legislation, are making a concession: Judges now will have power to grant leniency in certain cases.

Under the law as originally approved, felons who were convicted of, for example, two residential burglaries and then committed any felony on a “third strike,” no matter how minor, faced a sentence of 25 years to life in prison.

The sentence was mandatory. Judges could not reduce the penalty.

As the measure was being debated in the Legislature and on the stump, proponents insisted on keeping that provision intact. It would, they argued, ensure that the law would cast a “big net,” ensnaring large numbers of career criminals.

But lawmakers are abandoning the concept of requiring lengthy prison terms for at least some criminals such as burglars who later commit minor crimes such as petty theft as their “third strike.”

But first, here’s what the proposal does. In response to the court’s ruling that judges can grant leniency in all cases, the legislators’ proposal, still being refined Tuesday, would limit judges’ discretion in the most extreme cases, requiring them to impose maximum sentences:

* If any of the felons’ past crimes were “violent.”

* If the latest charge is a serious or violent offense.

* If the felon commits a crime less than five years after being released from prison. Proponents say this provision is aimed at recidivists and will amount to the “big net” sought by the measure’s original backers.

Hurtt and Pringle considered and then rejected a push to abolish all discretion in “three strikes” cases. But any change in the “three strikes” law will require a two-thirds vote of the Legislature. Some Democrats and Republicans probably would oppose such a drastic step.

“You could eliminate all discretion,” said Secretary of State Bill Jones, who as an assemblyman carried the “three strikes” legislation and is working on the Hurtt-Pringle proposal. “I don’t believe I could get that through the Legislature.”

Senate President Pro Tem Bill Lockyer of Hayward, who has pushed for reduced prison spending, remains unconvinced that any part of the court’s ruling needs to be altered.

“Changing the law to probably guarantee that more 60-year-olds remain in prison may not be a fiscally prudent thing to do,” Lockyer said.

Besides, he said, most trial court judges are former prosecutors who were appointed by Republican Govs. George Deukmejian and Wilson.

“In fact, most of the judges won’t strike priors,” Lockyer said. “Most of the criminals ought to be put away for a long time, and so it winds up being a theoretical discussion. I don’t think it will relieve pressure on prison spending.”

Abrahamse and others say that by pushing for legislation that would require judges to sentence violent felons to the maximum penalty allowed by the law, GOP lawmakers would be telling judges to do what virtually all of them would do any way.

Burglary, however, is defined as a “serious” crime, not a violent one. So under the Republicans’ proposal, judges would retain the power to grant leniency to felons convicted of two prior burglaries, then a third felony.

Two years after enactment of “three strikes,” figures from the state Department of Corrections show that of the 1,655 three-time losers, 197 committed burglary and 148 committed petty theft, such as shoplifting. That’s about 20%.

It’s the relatively minor cases involving felons who rob kids of pizza, shoplift a six-pack of beer or heist $100 worth of avocados and then get 25 years to life, that critics of “three strikes” seize on. In those cases, at least some judges would have sentenced felons to less than 25 years to life in prison, if they had the discretion.

“A little discretion can go a long way for case settlement,” said Peter Greenwood, Abrahamse’s partner in “three strikes” research. “Now courts will have a little something to offer--15 years instead of 25 years to life. That still gets people off the street for a long time.”