In addition, the District Attorneys appear to be in strong agreement over the types of legal factors which would qualify a defendant for discretionary treatment. For example, nearly three-fourths of those responding indicated that they would strike a strike for defendants who were guilty of a de minimis or minor felony offense. Other prime candidates included defendants who had committed their prior strikes in a single incident and offenders who had committed their strike offenses a long time ago or had since remained crime-free. These findings also concur with the results of previous studies which found that legal variables such as the prior felony conviction history and number of charges filed were significantly correlated with the use of prosecutorial discretion (Holmes, Daudistel, and Farrell 1987).

Conversely, prosecutors reached a near unanimous consensus that a prior strike should not be stricken if the current offense was serious in nature or if the defendant had a history of violence or a propensity to re-offend. This reinforces prior findings which indicate that prosecutors are less likely to use discretion in cases that involved serious offenses or a high number of total arrests (Gottfredson and Gottfredson 1986). Furthermore, response statistics indicate that the District Attorneys have a similar perspective on who is deserving of discretionary treatment, emphasizing variables related to the seriousness of the offense and the perceived risk that the defendant would pose if returned to the community. In short, tantamount to Justice Potter Stewart's famous obscenity case standard, the District Attorneys consensus over a case that qualifies for discretionary treatment can be described as �they know it when they see it.�

Although the results of the survey indicate that prosecutors can account for the variance in discretionary treatment, there may be a difference in treatment between jurisdictions that is not accounted for by this analysis. Certainly not all District Attorneys prosecute cases identically, and this normal fluctuation in operating procedures may affect the degree to which discretion is being exercised. Another factor, which may affect the variance in implementation, is the quality of cases that a jurisdiction may receive. For example, Northern California is well known for its proliferation of drug related offenses, while Southern California is notorious for its more, violent crimes, such as drive-by shootings and bank robberies. If comparing only rates of three-strikes prosecutions, it might appear that prosecutors in Northern California are using their discretionary influence more liberally than their Southern California counterparts, when the discrepancies are more likely to be explained by the types of cases themselves.

Hypothesis 2: Prosecutors use discretion to further crime control objectives

The second hypothesis tests for the underlying motivations for the use of prosecutorial discretion. As stated earlier, much of the criticism of prosecutorial discretion has to do with their use of plea bargaining to facilitate rapid processing of criminal cases (Church 1978; Dow 1981; McCoy 1998; National Institute of Justice 1997; Newman 1978). These studies found that prosecutors used the incentive of a more lenient sentence in order to resolve the case with a quick guilty plea. In California, the legislature has tried to counter this by specifically prohibiting plea bargaining in three-strikes cases. Yet, as mentioned previously, the legislature has agreed to allow prosecutors to discount prior strikes �in the furtherance of justice.� Within this small window of opportunity, research suggests that prosecutors, as chief law enforcement officers and advocates of the state, will use their discretionary authority to reinforce crime control goals (Jacoby 1979; Worden 1990). In doing so, prosecutors often use their discretion based upon legal variables, such as offense seriousness and criminal history information (Holmes, Daudistel, and Farrell 1987; McDonald, Rossman, and Cramer 1979).

Because no statewide data currently exists, testing of this hypothesis is made possible through data obtained from the San Diego County District Attorneys� Office. From March 1995 through 1997, San Diego County used a designated �Three-Strikes Unit� to handle the incoming three-strike cases (Perry 1995). Designed as a �fast-track� to avoid gridlock that had threatened to overwhelm the state�s larger counties (Abrahamson 1996; Center for Urban Analysis 1994; Corrections 1995), the District Attorney, Paul Pfingst, and the San Diego team established guidelines by which to review cases for the purpose of striking a strike (Perry 1996). When the decision was made to strike a strike, this team was also held responsible for documenting this use of discretion. This documentation contained the reasons or justifications for striking a strike (or in some cases, reasons for not striking a strike), information on the instant offense, a summary of the defendant criminal history, and the disposition of the instant case.

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