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

prosecutor’s crime control perspective. To evaluate this use <strong>of</strong> discretion, I utilize: 1) District Attorney
survey data; and 2) information culled from three-strikes cases filed in San Diego County. <strong>The</strong>
hypo<strong>the</strong>ses testing is done through tabular analysis using <strong>the</strong> survey data and logit analysis using <strong>the</strong>
three-strikes case data from San Diego.
<strong>The</strong> results from this study are substantial. First, despite <strong>the</strong> fact that state District Attorneys do
not coordinate policy with one ano<strong>the</strong>r, <strong>the</strong>y appear to be in remarkable agreement over <strong>the</strong> types <strong>of</strong>
factors that would qualify (and disqualify) a three-strikes case for discretionary treatment. <strong>The</strong>re was a
clear consensus, for example, that a minor third strike by a non-violent <strong>of</strong>fender was appropriate
justification for striking a strike. Fur<strong>the</strong>rmore, in evaluating <strong>the</strong> San Diego cases for use <strong>of</strong> discretion, I
found that prosecutors are likely to base <strong>the</strong>ir decision on crime-control variables, including factors
related to <strong>the</strong> <strong>of</strong>fender’s propensity toward violence and likelihood to re-<strong>of</strong>fend. <strong>The</strong> use <strong>of</strong> discretion
appears to be targeted at those <strong>of</strong>fenders who have committed fewer, non-aggravated crimes and who are
less culpable in comparison with o<strong>the</strong>r eligible three-strike <strong>of</strong>fenders. Because <strong>the</strong> California version <strong>of</strong>
three-strikes casts <strong>the</strong> broadest net across <strong>the</strong> criminal spectrum, it catches <strong>of</strong>fenders for minor felonies
such as shoplifting and marijuana possession. Many would argue that prosecutors are using <strong>the</strong>ir
discretionary authority to restore a sense <strong>of</strong> balance— and justice— to <strong>the</strong> system by disqualifying <strong>the</strong>se
minor cases.
Review <strong>of</strong> <strong>the</strong> Literature
Shift from Rehabilitation to Incapacitation
<strong>The</strong> use <strong>of</strong> rehabilitation— punishment for corrective measure— was <strong>the</strong> dominant sentencing
<strong>the</strong>ory from our colonial ancestry through <strong>the</strong> mid- to late 1970’s. Reforming <strong>the</strong> <strong>of</strong>fender was <strong>the</strong>
primary goal, and tools <strong>of</strong> punishment were used to correct and chastise him. Corporal punishment was
first used to remedy spiritual malfeasance (Forer 1994; Friedman 1992; Stith and Cabranes 1998), but
was later replaced with <strong>the</strong> use <strong>of</strong> incarceration. As secular European Enlightenment <strong>the</strong>ories found favor
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