California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MARCH 2002
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - March 2002
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News / News Briefs
Midyear meeting will focus on fairness
E-briefs offer bar updates
Three strikes supporter has a change of heart, now wants the law restricted
ABA seeks nominations for three awards
Rule change proposed to protect government whistleblowers
More pamphlets added, translated
Innovation garners awards for 11 courts
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Trials Digest
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Public Comment
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Opinion
From the President - New era of bar-conference cooperation
Conference of Delegates: A valuable ally
PG&E's plan: A power play
Letters to the Editor
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You Need to Know
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Discipline
Ethics Byte - Twilight zone cases can make practice tricky
Former deputy DA, convicted of grand theft, is suspended
Attorney Discipline
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MCLE Self-Study
At tax time, modify debt with caution
Self-Assessment Test
MCLE Calendar of Events
Three strikes supporter has a change of heart, now wants the law restricted
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By KRISTINA HORTON-FLAHERTY
Staff Writer
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Sam Clauder II pushed hard for California's three strikes law. As a paid consultant, he collected 12,000 signatures for the 1994 initiative. He donated money to it. And he urged everyone he knew to vote for it.

But some eight years after its enactment, Clauder is now working even harder - for free this time -to restrict the law's reach.

"After a couple of years, I could see it was a big mistake," said Clauder, the political director of Citizens Against Violent Crime (CAVC). "It was putting petty criminals in prison for life."

Clauder's solution is CAVC's proposed "Three Strikes Act of 2002," which would require all three strikes to be violent felonies. (Under current law, a defendant faces 25 years to life in prison for any felony conviction if he or she already has two serious or violent felonies that qualify as strikes.) The initiative would also entitle certain defendants to a resentencing hearing within 180 days. 

Aiming for the November ballot, CAVC is scrambling to collect some 700,000 signatures for the initiative by April, Clauder says. "Our intent is merely to restore balance to the justice system," he said.

Assemblymember Jackie Gold-berg (D-Los Angeles), too, is seeking a change. Her recently announced three strikes measure - Assembly Bill 1790 - would limit the law's reach to serious and violent felonies. And while resentencing would not be automatic, three-strikes inmates imprisoned for nonviolent offenses could petition the court for a hearing. In addition, prosecutors would be allowed to re-file any charges that were dropped, "pled down" or simply not filed in the defendant's original three  strikes case.

Proponents of the current law, however, argue that judges and prosecutors already have the discretion to overlook a defendant's strikes in the interest of justice. And Attorney General Bill Lockyer, among others, insists that such discretion is important.

Secretary of State Bill Jones, who authored the three strikes law in 1994, opposes the latest proposed amendments, particularly any re-sentencing provision that could allow prisoners with violent histories to get out of prison sooner. He points out that California's crime rate has dropped 41 percent - a greater reduction than in any other state - since the current law's enactment.

"There is no reason to wait for another woman to be raped or another child to be molested before taking criminals with a history of serious and violent crime off the streets," he said in a recent statement.

Lawrence Brown, executive director of the California District Attorneys Association, stresses that an effective habitual offender statute is designed to look at the offender as well as the offense. "There are clearly times when a life sentence is warranted even if the new offense is nonviolent," he said. "There has not been a compelling case made to weaken what has been a highly effective law."

Those pushing for change disagree. Some critics of the current law suggest it is not responsible for the drop in crime and ask why New York, which has no such law, has seen a crime drop similar to that found in California. Some question the high cost to taxpayers of housing three strikes inmates convicted of non-serious, nonviolent crimes. And some question the morality - as well as the constitutionality - of locking up shoplifters for life.

Clauder, however, says he still supports a three strikes law as long as it applies solely to violent felonies. And he believes the public has swung to his side. A recent survey, conducted by Fairbank, Maslin, Maullin & Associates and co-sponsored by CAVC, suggested that while most Californians support a three strikes law, nearly two out of three support an amendment that would apply the law only to violent felonies.

 "The California three strikes initiative is going to be changed," Goldberg said recently, announcing her legislative proposal. "We can spend a fortune changing it one lawsuit at a time, or the state legislature, with a majority of California voters, can make sure a person isn't sentenced to life in prison for stealing a few videotapes."