“In the Furtherance of Justice”: The Effect of Discretion on the ...

Introduction
On March 7, 1994, a habitual <strong>of</strong>fender sentencing law— colloquially known as “Three-Strikes and
You’re Out”—went into effect in <strong>the</strong> state <strong>of</strong> California. Unlike most new laws that are enacted quietly
with only a brief mention in <strong>the</strong> local newspaper prior to <strong>the</strong> start <strong>of</strong> <strong>the</strong> New Year, <strong>the</strong> <strong>of</strong>ficial rendering
<strong>of</strong> <strong>the</strong> 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.
<strong>The</strong> purpose <strong>of</strong> <strong>the</strong> three-strikes law was to ensure longer prison sentences for repeat <strong>of</strong>fenders
through <strong>the</strong> use <strong>of</strong> mandatory minimum sentences for recidivists with prior felony convictions. Through
this law, <strong>the</strong> legislature penalized repeat felony <strong>of</strong>fenders by stipulating an automatic 25-year-to-life
indeterminate sentence for all <strong>of</strong>fenders who were convicted <strong>of</strong> a third felony and had at least two serious
prior felonies. <strong>The</strong> law also targeted second-time <strong>of</strong>fenders by prohibiting probation and requiring <strong>the</strong>ir
sentences to be doubled automatically upon conviction <strong>of</strong> <strong>the</strong> second felony <strong>of</strong>fense. Combined, <strong>the</strong>se
efforts signaled an attempt by <strong>the</strong> legislature to ensure that recidivists who continued to commit crimes
would not have an immediate opportunity to re-<strong>of</strong>fend.
<strong>The</strong> California three-strikes measure also sought to eliminate most discretionary behavior <strong>of</strong>
prosecutors and judges which might be used to mitigate <strong>the</strong> effects <strong>of</strong> <strong>the</strong> 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 <strong>the</strong> sentence below <strong>the</strong> mandatory minimum. <strong>The</strong> intent <strong>of</strong> <strong>the</strong> law was
clear: repeat felony <strong>of</strong>fenders would be punished severely. Despite <strong>the</strong> strong language, <strong>the</strong> legislature
did authorize prosecutors to dismiss a prior strike conviction (or “strike a strike”) when it was “in <strong>the</strong>
fur<strong>the</strong>rance <strong>of</strong> justice.” This authorization was initially denied to <strong>the</strong> judges, but in 1996 <strong>the</strong> California
Supreme Court in <strong>the</strong> case People v. Superior Court (Romero) 1 extended this authorization to judges as
1 [53 Cal.Rptr.2d 789 (Cal. 1996)]
1