Foul Ball?: Assessing the Impact of the Ninth Circuit Ruling on the California 'Three Strikes' Law"

Jennifer Walsh, California State University - Los Angeles

ABSTRACT
In February 2002, the Ninth U.S. Circuit Court of Appeals ruled that a 25-year-to-life sentence imposed for shoplifting under the California "three-strikes" law was cruel and unusual. Although the court did not strike down the law itself, it did indicate that life sentences for petty thefts - crimes that may be elevated to felonies under California's penal code - were unconstitutional. Although opponents of the controversial sentencing law applauded the ruling as a significant setback to an objectionable policy, my research on the use of discretion under California's three-strikes law indicates that few eligible petty offenders are actually sentenced to the maximum term. Most prosecutors support the use of discretion in cases involving third-strikers who commit a petty theft or other de minimis nonviolent offense. Furthermore, these findings indicate that the decision to fully prosecute a nonviolent third-striker is predominantly guided by the nature of offender's prior record. That is, violent offenders who are caught on a minor third strike are more likely to face a third-strike prosecution than are offenders who have a nonviolent felony history. This segregation of offenders based upon their predisposition to violence is one that has been historically exercised by prosecutors and judges alike, and traditionally supported by both state and federal courts at all levels. Although the state has not yet announced whether it will seek a review of the current case in question by the U.S. Supreme Court, the present prosecutorial policy of applying the state's harshest law to the state's worst category of offenders is not likely to be significantly affected by this latest Ninth Circuit ruling.

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Updated 05/20/2006