Introduction

On March 7, 1994, a habitual offender sentencing law-colloquially known as "Three-Strikes and You're Out"-went into effect in the state of California. Unlike most new laws that are enacted quietly with only a brief mention in the local newspaper prior to the start of the New Year, the official rendering of the three-strikes law was treated as an important public event. Reporters took notes and media crews collected sound bites as Republican Governor Pete Wilson signed into law this popular, yet controversial, sentencing measure.

The purpose of the three-strikes law was to ensure longer prison sentences for repeat offenders through the use of mandatory minimum sentences for recidivists with prior felony convictions. Through this law, the legislature penalized repeat felony offenders by stipulating an automatic 25-year-to-life indeterminate sentence for all offenders who were convicted of a third felony and had at least two serious prior felonies. The law also targeted second-time offenders by prohibiting probation and requiring their sentences to be doubled automatically upon conviction of the second felony offense. Combined, these efforts signaled an attempt by the legislature to ensure that recidivists who continued to commit crimes would not have an immediate opportunity to re-offend.

The California three-strikes measure also sought to eliminate most discretionary behavior of prosecutors and judges which might be used to mitigate the effects of the law. For example, it prohibited prosecutors from plea-bargaining in eligible three-strikes cases. It also eliminated any discretion that a judge might have in reducing the sentence below the mandatory minimum. The intent of the law was clear: repeat felony offenders would be punished severely. Despite the strong language, the legislature did authorize prosecutors to dismiss a prior strike conviction (or "strike a strike") when it was "in the furtherance of justice." This authorization was initially denied to the judges, but in 1996 the California Supreme Court in the case People v. Superior Court (Romero)¹ extended this authorization to judges as well. Today, both prosecutors and judges have the ability to strike a prior strike "in the furtherance of justice."

Though the primary intent of the three-strikes law was substantive in nature, its enactment also had secondary systemic implications. Over the previous fifteen years, California's criminal justice system had been moving away from the paradigm of rehabilitation toward a penological theory that was more punitive in nature. As "get tough" political rhetoric grew, incarceration increasingly became a tool for retributive and incapacitative purposes rather than corrective ones. Though there might have been remnants of support for rehabilitation prior to three-strikes, the passage of the new law effectively stamped them out. The paradigmatic shift away from the sentencing goal of rehabilitation was complete.

Given this new theoretical context, state legislators and other crime control advocates were concerned that even the limited amount of discretion permitted under California three-strikes might be used to mitigate the full effects of the law. Opponents of three-strikes, however, have endorsed the ability of prosecutors and judges to "strike a strike" as a way of negating a law that is seen as excessively punitive. Although interest in this use of discretion has been high because of its potential to derail efforts to incarcerate recidivist offenders, no study prior to this one has been able to identify the reasons through which prosecutors are striking strikes, nor has any research been able to systematically characterize those 2 cases in which discretion is being used. This study addresses both of these deficiencies.²

In this paper, I explain the contextual background of the California three-strikes law as it reflects the shift from rehabilitation to incapacitation, the current disdain for discretionary action, and the problem of recidivism which has prompted legislators to prescribe mandatory penalties for the career criminal. I also detail general theories underlying prosecutorial discretion. Finally, I propose two hypotheses about the use of prosecutorial discretion under the California three-strikes law, positing that the prosecutor's decision to strike a prior strike does not cause disparities in treatment but rather reinforces the

¹ [53 Cal.Rptr.2d 789 (Cal. 1996)]

² Although the use of judicial discretion is important for an accurate understanding of how the California three-strikes law is being implemented, this paper will locus only on the use of prosecutorial discretion.

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