(Greenwood 1994) are objections to the arbitrariness of the law as represented by disproportionate sentences for non-violent and minor offenders (Shiraldi and Ambrosio 1997; Shiraldi and Godfrey 1994; Zimring 1996). Unlike other states which have more stringent requirements for the third strike, the California law is triggered by any third felony, which means that repeat offenders are at risk for even minor felony offenses (Turner 1995).

Of special concern are those felonies that are known as �wobblers.� Wobblers are lesser felony offenses that stipulate fines or jail time as alternative punishments. In California, wobbler offenses include misdemeanors that are elevated to felony status because of the defendant�s prior record (Meeker and Pontell 1985). Petty theft, for example, is normally a misdemeanor, except when committed by an offender who has a prior theft conviction.⁵ Cases involving minor instances of drug possession or driving under the influence are additional examples of wobbler offenses. Although the offenses may be minor, wobbler offenses are eligible to be counted as third strikes if the offender�s prior record contains two or more serious felony priors. For example, one California three-strikes case involved an offender who stole a package of meat to feed his family (Schiraldi 1994). The low value of the meat, $5.62, would have normally classified this offense as a misdemeanor petty theft. However, because this individual had two prior strike offenses, the petty theft charge was elevated to a felony, which then counted as a qualifying third strike.

The usual response to critics who point out the possible injustices with sentencing sometime to life in prison for a minor offense is to reiterate the seriousness of the defendant�s prior record. As a habitual offender law, three-strikes is only invoked on those who have repeatedly committed serious and/or violent crimes.⁶ However, it can also be mentioned that under the California law, a defendant guilty solely of three property offenses (e.g., two residential burglaries and a petty theft) is eligible to receive a 25-year-to-life sentence. As noted by Zimring, this type of offender will receive a lengthier sentence than a non-three strikes defendant found guilty of second-degree murder (Zimring 1996, 248).

It is the seeming lack of proportionality invoked by three-strikes that produces the most concern. Even those who have suffered the ills of crime have paused to consider the ramifications for defendants. As Marc Klaas, the father of Polly Klaas whose murder propelled three-strikes into the national spotlight, commented, �I�ve had my car broken into and my radio stolen and I�ve had my daughter murdered, and I know the difference� (Domanick 1998).

Despite these problems, the legislature purposely eliminated most expressions of discretion by judges and prosecutors. The three-strikes law states that �it is the intent of the Legislature... to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.�⁷ Specifically, the law prohibits the judge from granting probation or a suspended sentence;⁸ orders that judges not consider the lapse in time between the last serious felony prior and the instant offense in imposing the sentence;⁹ and prohibits the judge from sentencing a three-strikes defendant to an alternate institution.�¹⁰ It also instructs prosecutors to apply the law in every eligible case and prohibits them from using prior felony convictions as negotiation tools in plea bargaining.¹¹

Although the list of conditions regarding the application of the law appears to constrain all discretionary impulses, sandwiched among the �do�s� and the �don�ts,� PC �667(f)(2) states

'the prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.'¹²

California Penal Code �666.
See Appendix A for a listing of statutorily defined serious and violent felonies.

⁷Penal Code �667(b)
⁸Penal Code �667(c)(2)
⁹Penal Code �667(c)(3)
¹⁰Penal Code �667(c)(4)
¹¹Penal Code �667(f)(2)
¹²Penal Code � 1385(a) is ambiguously worded, but essentially allows judges to grant the motion of prosecutors who are petitioning the dismissal of a prior felony in the furtherance of justice.

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