Pubdate: Mon, 10 Dec 2001
Source: New York Times (NY)
Copyright: 2001 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Greg Winter

CALIFORNIA APPELLATE RULING AIDS FOES OF 3-STRIKE LAW

3-Strikes -- Since A Federal Appeals Court In San Francisco Ruled Last 
Month That A 50-Year Prison Sentence For A Videotape Thief Was Cruel And 
Unusual Punishment, Public Defenders Across The State Have Been Digging Up 
Old Cases To Mount The First Broad Challenge To California's Three-Strikes 
Law In Years.

LOS ANGELES - Life imprisonment for a man who shoplifted a screwdriver, an 
electric razor and a map from a Kmart . The same sentence for one who tried 
to steal a meat slicer and a mixer from an International House of Pancakes. 
Twenty-five years to life for a homeless man who broke into a restaurant, 
only to come away with four chocolate chip cookies - two in his left 
pocket, two in his right.

Since a federal appeals court in San Francisco ruled last month that a 
50-year prison sentence for a videotape thief was cruel and unusual 
punishment, public defenders across the state have been digging up old 
cases to mount the first broad challenge to California's three-strikes law 
in years.

In Los Angeles, public defenders are looking through more than 500 cases in 
which offenders received sentences of 25 years to life for nonviolent 
offenses like drug possession or petty theft. In rural Kern County, public 
defenders are hoping to reduce, if not overturn, as many as 350 sentences. 
And throughout Southern California, where prosecutors have vigorously 
enforced the state law that puts people with three felony convictions in 
prison for 25 years or longer, public defenders are selecting a wide array 
of cases that they hope will be eligible for application of the appeals 
court ruling.

"This is not going to be an easy ride," said Michael Judge, the Los Angeles 
public defender and president of the California Public Defenders 
Association. "It creates an enormous amount of optimism and hope among 
people, and we become the focal point for impatience and, if things don't 
turn out well, disappointment."

The effort's success is hardly guaranteed. In a 50-page order, a 
three-judge panel of the United States Court of Appeals for the Ninth 
Circuit clearly stated that its decision did not "invalidate California's 
three-strikes law generally." Instead, the court applied its decision 
solely to the case of Leandro Andrade, a heroin addict with a history of 
only nonviolent offenses, quite unlike the records of many of the prisoners 
sentenced to life in prison under the law.

And while the state court judges who sentence most offenders must consider 
the federal appeals court decision, they are not bound by it. And they must 
also weigh the state's extensive case law upholding the fairness of the 
three-strikes law, creating a challenging and ambiguous legal environment 
for public defenders to navigate.

"I don't think they should count their chickens before they hatch," said 
Lawrence Brown, executive director of the California District Attorneys 
Association.

Nonetheless, the public defenders' campaign worries many supporters of the 
three-strikes law, who argue that harsh punishment for repeat offenders has 
cut California's crime rate by 42 percent, more than twice the average 
reduction nationally, since voters approved the measure in 1994.

"Even though the federal judges said their decision was only for this case, 
it absolutely does weaken the three-strikes law as a whole," said Bill 
Jones, California's secretary of state, who wrote the law. "We don't want 
to see the law unwound or diminished, but that's already beginning."

Rather than wait for the rest of the Ninth Circuit judges to review the 
ruling, Bill Lockyer, California's attorney general, is appealing the 
Andrade case directly to the Supreme Court, in hopes of getting it reversed 
before judges start shortening other sentences.

Concerned that the Supreme Court will overrule the more liberal federal 
judges of the Ninth Circuit, as it did in a medical marijuana case last 
May, some public defenders are scrambling to challenge sentences quickly, 
making use of the favorable ruling for as long as it lasts.

"Frankly, we don't know how long this window will be open," said Carl 
Holmes, the public defender in Orange County. "We don't think sitting on 
these cases is a good idea, so we're trying to move as quickly as we can."

Of the nearly 7,000 felons serving life sentences under California's 
three-strikes law, 57 percent were imprisoned for nonviolent offenses, the 
California Department of Corrections reports, including 644 for the 
possession of controlled substances and 340 for petty theft.

But not all of those sentences will be challenged, public defenders say, 
because many of the offenders have violent histories, making them unlikely 
to evoke sympathy in court. Even Kevin Weber, for example, the homeless 
Santa Ana man sentenced in 1995 for sneaking through a restaurant grate and 
emerging with his pockets full of cookies, had an earlier conviction for an 
apartment burglary in which he pulled a gun on the tenant.

"We have to be cautious," said Mark Arnold, the public defender for Kern 
County. "If we bring all the three-strikes cases forward for re- 
sentencing, we'll lose all our credibility."

On Wednesday, the Ninth Circuit will hear oral arguments on whether to 
apply the cruel-and-unusual standard in two more three-strikes cases 
involving offenders with violent backgrounds. The outcome could 
substantially widen or shrink the type of three-strikes cases public 
defenders challenge, barring intervention by the Supreme Court.
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