"In the Furtherance of Justice": The Effect of Discretion on the Implementation of California's Three Strikes Law

Jennifer Edwards Walsh,
Assistant Professor of Criminal Justice and Criminalistics,
California State University Los Angeles

Abstract

Under the California three-strikes law, all traditional forms of prosecutorial discretion have been eliminated by the legislature-all except the ability of the prosecutor to dismiss a prior strike conviction "in the furtherance of justice." Earlier reports seemed to indicate that this discretion was creating an unequal application of the law as some prosecutors used this discretion more frequently than others, yet none examined this issue empirically. In this paper, I analyze the use of this discretion and conclude that prosecutors are not treating offenders disparately with their ability to strike a strike, nor are they using their discretion in a way that encourages sentence leniency. Rather, they are applying the law, and using their discretionary authority, in accordance with crime control goals. Prior strikes are stricken only in those cases that involve less serious crimes or defendants who present a reduced risk of recidivism and a lesser degree of culpability.

Prepared for delivery at the 1999 Annual Meeting of the American Political Science Association, September 2-5, 1999. Copyright by the American Political Science Association.

I would like to thank Harold Becker, Joseph Bessette, and Craig Volden for their time and helpful suggestions throughout the various stages of this project. I also wish to thank Deputy District Attorney Gregg McClain and the San Diego County District Attorney's Office for their invaluable assistance in providing data for this analysis. Please send comments to: [email protected] or School of Politics and Economics, Department of Politics and Policy, Claremont Graduate University, 160 E. Tenth Street, Claremont, CA 91711.

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