COMMENTARY 

http://www.ocregister.com/commentary/editorial2.shtml

Saturday, February 9, 2002 

A second strike 

For the second time in less than four months, the 9th Circuit federal appeals court ruled in favor of an inmate and against California's "Three Strikes" law, passed by ballot initiative in 1994. The ruling strengthens the case for changing the law, as a group called Citizens Against Violent Crime, based in Orange County, is seeking to do. 

In the case decided Thursday, the 9th Circuit judges in a 3-0 vote overturned the sentences of two prisoners whose third strike was petty theft, even though their previous two strikes had been violent crimes. The decision explicitly stated the principle that a punishment has to be proportionate to the last crime a person committed. 

Last November, in the case Andrade v. California, the 9th Circuit court ruled that a prisoner serving a 25-years-to-life sentence for a non-violent strike, whose prior strikes were also non-violent felonies, was being subjected to cruel and unusual punishment and was entitled to a new trial. 

The court said it was not overturning the California law, just making sure that it did not violate the U.S. Constitution's prohibition against cruel and unusual punishment. Some argue that such a principle will undermine the three strikes law as written. California's law is different from "strikes" laws in other states in that not all offenses have to be violent and all felonies. In addition, violations committed years ago can be considered. 

Most states have a time limit within which strikes can lead to enhanced sentences. California Attorney General Bill Lockyer has appealed the November Andrade decision to the U.S. Supreme Court. His office said Friday it is still considering what to do about last week's decision. He could amend his previous petition to have the new cases added. Then there's the other case we discussed a couple of weeks ago. 

John Wayne Morgan had a state appeals court order a new trial after a volunteer from the prison-reform group called UNION helped him prepare papers demonstrating that his defense attorney didn't adequately research his previous two strikes, which had occurred almost 30 years before in Arkansas. His case is doubly embarrassing in that a non-attorney helped him win a new trial. UNION executive director Cayenne Bird claims he was unfairly put in solitary confinement afterward. 

We don't know about that, but it is true that he was not made available for a court appearance last Monday. USC law professor Erwin Chemerinsky, who wrote the briefs and argued in both, told us "this case means at least 340 people now serving 25-to-life for petty theft have a basis to appeal. An unknown number of the other 6,400 people now serving third strike sentences might also be able to get new trials." 

Defenders of the current law, such as GOP gubernatorial candidate Bill Jones, who helped to write the current law when he was in the Assembly, argued that this decision could put rapists and child molesters back on the street. "There is ample discretion under a law for both judges and prosecutors to reduce a sentence under the Three Strikes law," he said in a statement. 

Mr. Chemerinsky told us, however, that it was precisely prosecutorial discretion that led to these sentences being overturned. "Some counties hardly ever use the strikes law and some prosecutors do everything permissible to get a crime labeled a strike," he said. "That has led to clearly unjust sentences, according to the 9th Circuit. 

The best bet would be to change the law to require all 'strikes' to be violent crimes." We long have advocated modifying the law on key points, and the courts are raising similar concerns. 
 

Copyright 2002 
The Orange County Register 
 


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