As some of you probably noticed in March, the three strikes law is alive and well. 

The futures of thousands, if not hundreds of thousands, of people were determined by another of those horrendous five to four votes by the United States Supreme Court.   There were two cases before the Court, and the end result is that one man will serve 50 years to life in prison for stealing videotapes worth all of  $153.00, and the other individual will serve a sentence of 25 years to life in prison for shoplifting a set of golf clubs. 


Let me state out front that I would not have anything against the three strikes law if the third strike had to be a violent felony.  Unfortunately, the third strike can be any kind of felony at all, and that is what leads to someone stealing a small amount of videotapes and thereafter looking at spending the rest of his life in jail.  The four dissenters, led by  Justice Souter, indicated that there is in California " clearly established precedent that a sentence that is grossly disproportionate to the crime is cruel and unusual punishment."  Doing the math in this case indicates that a 27 year old defendant who receives 50 years to life will be ELIGIBLE for parole at the age of 87.  That's if he lives that long. 



What really gets me here is the fact that one vote makes all the difference in the world.  If just one justice had voted with the minority, they would have become the majority, and the 27 year old, a Mr. Andratti would now be looking at a punishment that fits the crime, and the prospect of freedom at a much earlier age.  He is no saint, nor is Mr. Ewing, the individual who shoplifted the golf clubs, whose life has also been altered irrevocably by the Court's five to four decision.  Of course, the argument can be made that if you commit the amount of crimes that puts you into this position, you have no one to blame but yourself.  I understand that, however, I think that to borrow from Gilbert and Sullivan 's “Mikado," the punishment should fit the crime.


It now appears as if Gary Ewing will die in prison on the strength of shoplifting three golf clubs.  Mr. Ewing is blind in one eye, and suffers from AIDS. 



There is a bill pending in the state legislature which would require what would be the third strike in every criminal case to be a " violent  felony.”  Unfortunately, this bill is not expected to pass.  Even if it did pass, Governor Davis has indicated he would veto such a bill, so there really is no reason to even make the attempt until we have a new governor. 


With the law the way it is right now, the  good news for those in LA County is the present policy of District Attorney Steve Cooley.  Mr. Cooley has advised his deputy district attorneys that if a potential third strike case is a violent crime, it should be filed as a third strike.  If it is a non-violent crime, it should be treated as a second strike.  THIS IS REASONABLE.  The only problem here is that people in LA County get the break while people in other counties in this state don't, and it really distresses me when where one lives can determine the type of punishment an individual will receive. 


Those in favor of the three strikes law correctly argue that people who are convicted of their third strike generally have a lengthy criminal history, and probably deserve their fate.  I agree with the first part, but not with the second.  It is one thing to have a long criminal history; however, the type of crime one engages in needs to be considered.  It is one thing to try to make one's way out of a store without paying for videotapes on a regular basis; it is something quite different to grab your gun and rob banks. 


I think that the most egregious showing of a lack of understanding of this decision was made by Secretary of State Bill Jones, who praised the decision, stating that it " ensures that repeat murderers, robbers, rapists and child molesters will be off our streets as soon as they commit an additional felony. "  This is just stupid.  There are not exactly a great deal of " repeat murderers " out there, for if one is convicted of murder, one often serves life in prison, and if it is first-degree murder, one may be executed.  No one wants the type of people described by Mr. Jones on our streets; however, let us punish them when they do murder, rob, rape and molest rather than when they steal three golf clubs or $153.00 worth of videos.  I look forward to the day when our system is more equitable than it is now. 


Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at charlieunger