THREE STRIKES ARE OUT

By MARGOT HORNBLOWER BY MARGOT HORNBLOWER.

At the time, it seemed to many people like a good idea. In the wake of several brutal murders by former convicts, California enacted the toughest "three strikes" law in the nation. Any criminal with a serious or violent prior felony would automatically have his sentence doubled for a second conviction and, on a third felony conviction, would be put away for 25 years to life. But the 1994 statute, endorsed by 72% of California voters in a ballot initiative, had troubling consequences. The courts became clogged with the three-strike cases of nonviolent criminals. (One man got 25 years to life for shoplifting two packs of cigarettes; another for stealing a slice of pizza.) Prisons overflowed, and incarceration costs skyrocketed.

Last week the California supreme court--a conservative panel with six Republicans and one Democrat--called time out. The case before them was that of Jose Romero, a San Diego drug abuser whom superior court judge William Mudd sentenced to six years for possession of 13 g of cocaine. Romero had 24 previous convictions, but they had all been for nonviolent crimes, such as burglary and drug possession. Prosecutors appealed the decision, saying the judge was required by law to sentence Romero to 25 years to life. Mudd refused, arguing that the three-strikes law "basically castrates a judge."

The Justices agreed. It would be unconstitutional, they declared unanimously, for the law to limit a trial judge's discretion to reduce a three-strike sentence "in furtherance of justice." Prosecutors are allowed to plea-bargain under the law--and so, if they choose, disregard prior convictions. If judges were not allowed to do likewise, the balance of power among the legislative, executive and judicial branches would be skewed. "The legal system has long recognized that rigid application of the law can produce injustice," said Paul Boland, president of the California Judges Association, applauding the ruling. Many of the 18,000 prisoners convicted under the law may now appeal their sentences.

But the court's action, which reinterprets the law rather than strikes it down, provoked outrage from victim advocates and some politicians. "Those who repeatedly assault our citizens, terrorize our elderly and prey upon our children must pay a severe price," declared Governor Pete Wilson, who pledged to try to overturn the decision either in the legislature or through another ballot initiative. One possibility: make the law even more rigid and remove the discretion of both prosecutors and judges.

But that would further raise the price of three strikes. A Rand Corp. researcher who determined that California faces an annual increase in prison costs of $5.5 billion under the law also analyzed four social programs and found three of them far more effective in reducing crime. "If you're going to spend a million dollars, you prevent three times as much crime if you put it into parent training than if you put it into building more cells," said Peter Greenwood, the study's director.

Meanwhile, a court settlement in Alabama softened another get-tough law-enforcement device, the newly revived chain gang. After an Alabama guard shot a prisoner to death during a fight between two men who had been shackled together, authorities agreed to break up the chain, though each prisoner will still wear leg irons. Officials talk of an exodus of California parolees to more forgiving states, but it's doubtful they're moving to Alabama.

--By Margot Hornblower. With reporting by Dan Cray/Los Angeles and Ralph Holmes/Montgomery

With reporting by DAN CRAY/ LOS ANGELES AND RALPH HOLMES/MONTGOMERY