evidentiary reasons. Pursuant to PC � 1385, judges are prohibited from using their discretion to dismiss prior felony convictions apart from evidentiary reasons.¹³

Not surprisingly, judges complained about the discretionary power that had been authorized for the prosecutors, but not for them. Some judges reluctantly imposed the full sentence under the law, but noted on record that they were doing so only under duress. Others devised ways around the law, mirroring the avoidance behavior observed under mandatory sentencing laws of the 1970�s. A Los Angeles Superior Court Judge expressed his frustration with the law soon after its enactment in 1994. �I refuse to dispense injustice. I wasn't put here to annihilate people because some politically hungry morons wanted (me) to� (Colvin 1994, A-1).

Judges who circumvented the measure were frequently reversed on appeal. Two years after its implementation, the issue of whether or not judges had the authority to exercise discretion in three-strikes cases came before the California Supreme Court. In People v. Superior Court (Romero) (1996), the state high court issued an upset ruling which extended to judges the authority to strike a prior strike �in the furtherance of justice.� The court ruled that the legislature had not specifically prohibited that exercise of judicial discretion and to deny the judges the same exercise of power granted to the prosecutors was to upset the separation of powers doctrine established by the state constitution.

The state Supreme Court also noted that the phrase �in the furtherance of justice� is currently without legislative meaning. In previous cases, the court had defined this phrase to mean �consideration both of the constitutional rights of the defendant and the interests of society represented by the People.�¹⁴ Using this definition in the context of three-strikes, the judge or the prosecutor must take into account the individual characteristics of the crime and the offender and balance them against the crime control or incapacitative benefit to society. This balancing of interests answers the problem of arbitrary, uniform inflexibility that can lead to unjust results. In this one case, the court reasserts the need to accommodate the variations in human experience in light of the authority of the legislature to prescribe specific punishment for a group of offenders .

The potential problem with this type of unstructured discretionary authority is that not every prosecutor or judge evaluates those competing interests in the same way. When unstructured discretion was at its peak during the rehabilitation era, one of the common side effects was variation-or worse, disparity in sentencing. When each judge was allowed to interpret the needs of the individual without guidance from a central agency or authority, variances based upon personal biases were commonly found.

Anecdotal reports and preliminary studies have alleged that prosecutors differ in their treatment of three-strikes offenders. For example, a 1996 Los Angeles Times article reported that large disparities existed between the use of discretion in San Diego and San Francisco, with prosecutors in the former county pursuing three-strike candidates more aggressively than in the latter (Perry 1996). A recent study by the Justice Policy Institute also found differing levels of enforcement across the state (Males, et al 1999). Although these preliminary reports have hinted that prosecutors are exercising their discretion unfairly, no study to date has examined the use of discretion of prosecutors or judges against the standard �in the furtherance of justice.�

Data Analysis

Although quantitative studies have focused on the fiscal impact and crime control benefits of the California three-strikes law (Greenwood 1994; Lungren 1998; Males, et al 1999; Stolzenberg and D�Alessio 1997), none have addressed the use of discretion. A paucity of available quantifiable data has been an obstacle for researchers who wish to focus on this issue. While the state Department of Corrections statistical unit can track three-strike offenders though the system, they are unable to provide crucial criminal history data on these offenders. At one time, the state maintained a longitudinal database system (OBTS) that compiled information on individual offenders as they moved in and out of the

¹³Penal Code Section 1385 (b) clearly states clearly that �this section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.�
¹⁴People v. Romero, 53 Cal.Rptr.2d 789 (Cal. 1996)

¹⁵In the follow-up case People v. Williams (Cal. 1998), the court clarified the use of discretion by requiring judges to give the full sentence as required by the three-strikes law to those defendants whose past and present conduct fall within �the spirit� of the law.

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