The District Attorney�s office also documented each time a judge exercised his discretion to strike a strike, along with the justification required at the time of sentencing.¹⁸ In all, there were 256 three-strike cases reviewed as a part of this study; 70 cases resulted in the dismissal of a prior strike by the prosecutor and another 74 by the judge.¹⁹

In addition to its availability, the three-strikes data from San Diego County is useful for a number of reasons. First, San Diego is the second largest county in the state with 2.79 million residents, second only to Los Angeles County. San Diego also represents 9.4% of the state�s accumulated three-strike convictions, which again is second only to Los Angeles (see Table 1). Furthermore, the three-strikes data available includes a number of variables related to offender conduct and criminal history, which can be used to test this hypothesis regarding the use of prosecutorial discretion. Finally, the San Diego data, in addition to documenting instances of prosecutorial and judicial discretion, also maintained records on cases in which no discretion to strike priors was exercised.

The three-strikes case data can be broken into two categories: criminal history data and subjective evaluation data. The criminal history data is collected from documents including the official Information Summary (filed when the defendant is formally charged with a crime), probation reports, and out-of-state records. This information is then translated into specific variables related to the offender�s criminal history, such as: nature of the current offense(s), nature of the prior strike convictions, number of other felony convictions, prior prison commitments, and prior convictions for drug offenses.

The variables that comprise the subjective evaluation data are taken from the San Diego guidelines established to justify striking a strike, and include items such as no weapon use, de minimis current offense, no history of violence, and no prior prison commitments. Because San Diego prosecutors were required to cite one or more of these factors before they could strike a strike, the use of prosecutorial discretion can be linked back to this subjective data.20 These variables, although subjectively created, help to test for the motivational impetus that underlies the use of discretion. The summary statistics for all variables are included in Table 3.

To facilitate a quantitative analysis, the subjective evaluation variables and the presence of drug convictions were coded as bivariate dummy variables (�1� if they were present or cited in the decision to strike a strike; �0� if they were not). Other variables such as number of prison priors and length of time between last strike offense and current offense was recorded numerically. Attempting to describe the seriousness of a crime numerically, however, is a more complicated task. The California three-strikes law makes no distinction between eligible offenders and its application for all who have two or more serious felony priors means that a two-time robber and a two-time murderer qualify for the same sentence. The literature suggests that prosecutors go beyond mere counting of offenses when evaluating a case for possible discretionary treatment, instead looking at the seriousness of the offense and the culpability of the defendant (Gottfredson and Gottfredson 1986; Holmes, Daudistel, and Farrell 1987; Smith 1984); the criminal history is evaluated on a multidimensional basis (Roberts 1997).

In order to assess this evaluation statistically, each of the offender�s current and prior strike offenses are ranked according to their relative seriousness using a scale created from the Minnesota Sentencing Guidelines system. Several studies have used Minnesota data directly or applied the same scale to similar jurisdictions (Barry and Green 1981; Beck and Shipley 1989; Miethe 1987; Miethe and Moore 1985; Miethe and Moore 1989; Moore and Miethe 1986; Stolzenberg and D�Alessio 1994). The Minnesota format is widely used because it can be applied in other settings and because its construction is compatible with most sentencing schemes (Barry and Green 1981).

¹⁸ Although the courts did not have the formal authorization to strike prior strikes prior to the Romero case decided in June 1996, per the California Supreme Court, three-strike cases sentenced prior to Romero were eligible for review and resentencing by the original court. The District Attorney�s files contain information on judicial discretionary decisions that were applied to original 1995 cases through this review and resentencing process.
¹⁹Four cases received discretionary treatment by both prosecutor and judge (the DA struck the first prior strike and the judge struck the second).
²⁰All decisions to strike a strike were approved by Deputy District Attorney Gregg McCalin, who was also the supervisor of the District Attorney's Three-Strikes Unit.

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