criminal justice system (Maltz 1984; Zatz 1987), however it was eliminated in the budget crises of the early 1990�s. Thus, to facilitate testing the hypotheses for this study, two original sources of data were collected specifically for this analysis.

Hypothesis 1: Use of prosecutorial discretion produces disparity

The first hypothesis to be tested is the assumption that the use of prosecutorial discretion produces disparity. As stated earlier, anecdotal reports seem to indicate that the prosecutors� use of discretion under three-strikes has produced extreme variances in treatment-variances which have reached the threshold of disparity. In order to evaluate the state-wide use of discretion under three-strikes, a self-administered questionnaire was constructed and sent to all of the state�s fifty-eight District Attorneys. The purpose of the questionnaire was to collect responses that could be used to compare the use of discretion on a county-wide level in order to evaluate the degree to which prosecutors vary on their use of discretion. The questionnaire featured questions about administrative procedures for three-strikes cases, opinions on the three-strikes law and information related to the demographic characteristics of their jurisdiction.¹⁶

After two separate mailings, a total of 27 responses was received, with 25 providing utilizable data. Although the prosecutors had the option of responding anonymously, 21 of the 25 respondents provided their name and county jurisdiction. While the response rate corresponds to 43% of the entire population surveyed (25 of 58 District Attorneys), and is a bit lower than the recommended minimum response rate of 50-60% (Babbie 1992; Rea and Parker 1992), it does represent almost all of those counties shouldering the vast majority of the state�s three-strikes case load. Using only the information from the 21 counties that identified themselves on their responses, it can be ascertained with state Department of Corrections data that these counties account for more than 75% of the state's total share of three-strikes convictions. Adding the four additional counties that responded anonymously would conceivably increase this percentage beyond the 80% mark, especially since two of the anonymous responses came from large jurisdictions (population size greater than 100,000), and therefore likely contributed significantly to the state's three-strikes load as well. Information detailing county demographic data, three-strike conviction totals, and survey response status is provided in Table 1. Using this information, it can also be ascertained that many of the non-respondents actually contributed little or not at all to the state�s three-strike case load, which presumably explains their non-response.

In the survey, a majority reported that they filed three-strikes charges against all eligible defendants and almost all (92%) of the respondents indicated that they had used their discretionary authority to strike a prior strike (see Table 2 for a summary of survey findings). When asked about the frequency of their discretionary use, a plurality of respondents (30.4%) indicated that they struck a strike in less than 20% of the cases, although another sizeable group (26.1%) indicated that they used discretion in 21-40% of eligible three-strikes cases.¹⁷

A solid majority of district attorneys (65%) reported having established guidelines or procedures for the striking of prior strikes: Out of the given justifications for striking strikes, the most frequently cited reasons are all related to the characteristics of the offense and the propensity of the offender to recidivate. For example, 74% of the respondents indicated that they would strike a strike if the current offense was trivial. This was followed by equal numbers selecting as justification remote prior strikes, strikes from a single incident,. and no recent criminal history (65%). The least cited reasons were lack of weapon use and history of mental illness (39%). A defendant who has spent a considerable amount of time remaining crime free, or who �slipped up� only once in a single incident (e.g., a robbery with multiple victims) is also viewed as less of a risk for recidivism than a defendant who has prior strikes from two or more separate instances or a recent proliferation of serious criminal activity.

¹⁶A copy of the questionnaire is included as Appendix B
¹⁷District Attorneys varied in their timing of striking a strike. A minority of respondents (typically from smaller counties) chose to strike a strike before filing the initial three-strike charges. A majority, however, preferred to file charges first, then proceed with discretion as appropriate.

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