prosecutor�s crime control perspective. To evaluate this use of discretion, I utilize: I) District Attorney survey data; and 2) information culled from three-strikes cases filed in San Diego County. The hypotheses testing is done through tabular analysis using the survey data and logit analysis using the three-strikes case data from San Diego.

The results from this study are substantial. First, despite the fact that state District Attorneys do not coordinate policy with one another, they appear to be in remarkable agreement over the types of factors that would qualify (and disqualify) a three-strikes case for discretionary treatment. There was a clear consensus, for example, that a minor third strike by a non-violent offender was appropriate justification for striking a strike. Furthermore, in evaluating the San Diego cases for use of discretion, I found that prosecutors are likely to base their decision on crime-control variables, including factors related to the offender�s propensity toward violence and likelihood to re-offend. The use of discretion appears to be targeted at those offenders who have committed fewer, non-aggravated crimes and who are less culpable in comparison with other eligible three-strike offenders. Because the California version of three-strikes casts the broadest net across the criminal spectrum, it catches offenders for minor felonies such as shoplifting and marijuana possession. Many would argue that prosecutors are using their discretionary authority to restore a sense of balance-and justice-to the system by disqualifying these minor cases.

Review of the Literature

Shift from Rehabilitation to Incapacitation

The use of rehabilitation-punishment for corrective measure-was the dominant sentencing theory from our colonial ancestry through the mid- to late 1970�s. Reforming the offender was the primary goal, and tools of punishment were used to correct and chastise him. Corporal punishment was first used to remedy spiritual malfeasance (Forer 1994; Friedman 1992; Stith and Cabranes 1998), but was later replaced with the use of incarceration. As secular European Enlightenment theories found favor among leaders, physical punishment in a post-constitutional setting was considered to be �cruel and unusual� (Alschuler 1978; Forer 1994; Gaes 1998; Ignatieff 1992; Stith and Cabranes 1998).

Packaged in both spiritual or secular contexts, the rehabilitation model sought to stop the offender from re-offending (Farrington 1987; Forer 1994; Von Hirsch 1976). To accomplish this task, judges were given the discretionary authority to tailor prison sentences to the therapeutic needs of the individual, and parole boards were established with the authority to release prisoners from the balance of their sentences when rehabilitation treatment had been successfully completed (Von Hirsch 1976). Statutory provisions established the baseline eligibility for parole, usually requiring that the offender serve one-third of their maximum sentence, however all other decisions regarding the release and conditions of parole were left to the parole board (Morris and Tonry 1990; Stith and Cabranes 1998; Wilson 1983).

Despite enjoying widespread support from the beginning of the twentieth century, by the mid-1970�s the rehabilitative penal philosophy had begun to fall out of favor with lawmakers and the public. A primary cause for declining support was the growing body of evidence that seemed to indicate that rehabilitation did not work. While initial research seemed to support the effectiveness of the rehabilitation approach (Wilson 1983), later studies correcting for methodological flaws revealed that traditional treatment therapies, including vocational, academic, and psychological programs, were not effective at all; they failed to impact the rate of recidivism among offenders exposed to treatment (Farrington l987)³. As one scholar summarized the body of research, �almost every means of rehabilitating criminals has been tried, and almost nothing seems to work� (Alschuler 1978, 552).

Another criticism of the rehabilitation model rested on the use of judicial discretion in sentencing. Under the indeterminate sentencing scheme so commonly paired with the rehabilitation model, judges were able to vary each sentence in order to tailor the punishment to the relevant facts of each case. This freedom to alter sentences based upon subjective criteria produced a number of problems including disparities between cases, sentences that were not justified given the facts of the case, and accusations that

³A summary of rehabilitation studies can be found in (Gaes 1998).

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