In baseball, you get three strikes.  Then, you're out.  In California, the rules are much the same, except they apply to criminals.

California's "Three Strikes Law" was enacted in 1994 to ensure proper punishment for people who repeatedly commit crimes.  After a third felony conviction, with two serious or violent felonies preceding it, an offender is sentenced to 25 years to life in prison.

Laws like this and the mandatory minimum sentencing statutes that exist in many states have triggered a national debate over whether people who have been convicted of crimes should be sentenced pursuant statute or by a judge who can use his or her own discretion to evaluate the circumstances of each case. 

While the dispute between legislators and judges rages on within individual states, a similar controversy over who yields ultimate sentencing power has erupted at the federal level.

With federal sentencing guidelines in place and an act passed recently by Congress requiring judges to account for any departures they make from those sentencing standards, a struggle involving the federal judiciary, the legislature and the Department of Justice has emerged.

As the fighting continues on both battlefronts, courts, Congress, corrections and the general public are trying to make sense of sentencing.  Recent court cases and legislative decisions have helped to frame the issue and sort its their intricacies.

California's Constitutional Debate

Mandatory sentencing advocates recorded a victory earlier this year when, in Ewing v. California, the United States Supreme Court upheld California's "Three Strikes Law."

Gary Ewing had previously been convicted of several crimes, including four serious or violent felonies, when he was convicted of felony grand theft for stealing golf clubs.  That was Ewing's third "strike" and it earned him a lengthy prison sentence, which he appealed on the grounds that it was disproportionate to his crime and a violation of his constitutional rights. 

On March 5, 2003, the Supreme Court ruled against Ewing, holding that his sentence was not was grossly disproportionate to his crime.  It, therefore, was not a violation of the Eighth Amendment.

"Those golf clubs were quite costly," said David LaBahn, Executive Director of the California District Attorneys Association.  "That's not an [insignificant] theft."   

LaBahn is among the state's supporters of "Three Strikes."

"I think 'Three Strikes' is an excellent tool to deal with recidivist offenders," said LaBahn. "[A law like this is necessary] because there's going to be some percentage of offenders who are not going to be deterred from a life of crime."

While these types of offenders, career criminals and perpetual recidivists, are exactly who the law was designed to punish, some people argue that "Three Strikes" is forcing the lengthy incarceration of the wrong types of criminals.

"A significant number of people that are low-level offenders end up getting swept into the net," said Ryan King, a research analyst for the Sentencing Project, a non-profit organization that promotes alternatives to incarceration. 

"['Three Strikes'] was advertised to voters as a policy that was targeted to getting these career criminals, so to speak, off the streets," King said.  "It has brought in a significant amount of people that it's sort of questionable whether they should be in prison at all."

Gail Blackwell, Director of Operations for Families to Amend California's Three Strikes (FACTS) echoes King's concerns about the sentencing law.

"Many people thought they were voting for a law that was going to put violent criminals behind bars for life, not petty criminals," Blackwell said.  "Communities are being devastated.  They're being wiped out."

Aside from having a destructive effect on communities, Blackwell believes that the law also negatively impacts the judicial system.

"No two cases are the same," Blackwell said.  "There are certain mitigating circumstances that would cause a person to do certain things," she said.  "I think that [the 'Three Strikes Law'] is doing the judges a great disservice," she added, because they are being required to impose certain sentences.

LaBahn, however, believes that, under "Three Strikes," judges fully maintain their discretionary powers and are not being forced to impose any sentences.

"It's not a mandatory sentencing law," LaBahn said.  "It's not mandatory on the prosecutors, it's not mandatory on the jury and it's not mandatory on the judge."

Under California law, judges and prosecutors can determine whether certain offenses will be treated as misdemeanors or felonies.  Petty theft, depending on a defendant's prior criminal history, and grand theft, for example, can be either, with prosecutors and trial courts having the ultimate say.

According to LaBahn, even with the law in place, a judge could still use his or her own discretion to reduce a certain offense to a misdemeanor.  Also, he said, judges can remove offenders' prior strikes.

"[Judges] have absolute discretion," said LaBahn.

Regardless of how a judge determines what a criminal's sentence will be, whether it's based on state laws, his own evaluation of the case, or both, one fact remains: adjudicated offenders ultimately land in the hands of a department of corrections.

Although the California Department of Corrections (CDC) has little to do with the actual sentencing process, it does try to prevent individuals who are already under its supervision from re-offending and triggering a "Three Strikes" sentence of 25 years to life in prison, said CDC spokesperson Terry Thornton.

"There's more of an emphasis on parolees who already have two strikes," Thornton explained.  "It just makes sense to try to target [repeat offenders] and keep them from going back to prison," she added.  "Not only from a public safety standpoint, but also from a cost-effectiveness standpoint."

According to Thornton, it costs the state over $28,000 a year to incarcerate an offender, while keeping an individual on parole costs only about $3,000.

"If you can keep them from re-offending [and going back to prison], you can save money," Thornton said.

The Argument in Arizona

While the U.S. Supreme Court found that California's Three Strikes Law did not violate the Eighth Amendment in the Ewing case, the high court in Arizona recently came to a different conclusion in a case there that challenged state sentencing laws.

In Arizona v. Davis, the state Supreme Court ruled that the 52-year prison sentence Charles Davis received for having consensual sex with two teenage girls was disproportionate to his crime.  The Court remanded the 20-year-old's case to Superior Court for retrial and resentencing.

Davis was convicted of four separate counts of sexual misconduct with a minor and, by state law, was sentenced to 13 years in prison for each count.  Arizona's law also required those terms to be served consecutively, with no opportunity for parole.

"While we recognize that Davis committed crimes worthy of severe punishment, we nonetheless find that the application of the mandatory sentencing provisions of the [state law] creates an unconstitutionally disproportionate punishment in light of the specific facts and circumstances of Davis's offenses," Justice Rebecca White Berch wrote in the Court's Opinion.

The Arizona Supreme Court is not alone in believing that sentencing needs to be based on the facts and merits of each, individual case. 

"[The law that was applied in the Davis case] was a statute that was intended to cover a [different situation]," said James Hamm, the Director of Advocacy and Program Services for the Arizona-based Middle Ground Prison Reform, Inc.  "This wasn't a crime where someone was being preyed upon."

Both the Arizona Supreme Court and Hamm believe that sentencing laws alone should not dictate the length of an individual's prison term; the courts need to be involved, too.

"It's a good idea to tailor [judges' power]," Hamm said.  "[But], I think you should allow them some discretion, [too]," he added.  "Otherwise, why are you paying them $100,000 a year?  What we would have is a calculator [figuring sentence lengths strictly according to law] instead of a judge."

Hamm believes sentencing laws are crippling judges' abilities to use their own discretion in many states, not just Arizona.

"Right now I think across the country they have too little discretion," Hamm said.

Daryl Fischer, Research Manager for the Arizona Department of Corrections (DOC) agrees.  He, too, is in favor of letting judges have the ultimate say about how long criminals should be sentenced to the system.

"In many cases, a judge doesn't want to impose consecutive sentences, [like in the Davis case], but his hands are tied because the [state] code requires it," said Fischer.  "[Mandatory sentencing laws] don't take into account that the judges are well-trained and have the experience to identify [which criminals need to be incarcerated]."

Judges having less freedom to determine who is going to prison and for how long has affected the DOC, noted Fischer.

"A lot of the overcrowding we have is essentially drawn from mandatory minimums," Fischer said.  "We end up housing people who are not really a threat to society."

The DOC houses nearly 30,000 inmates and, according to Fischer, it is over 4,000 beds short.

Aside from affecting the prison population, mandatory minimums and flat sentences with no possibility of parole also have an impact on inmates' behavior and attitudes within correctional facilities, Fischer pointed out.

"I think [mandatory minimums] hurt corrections in a sense that there's no incentive to behave if they've imposed these long, flat terms of consecutive sentences where an offender can't earn any good time," Fischer said, referring to an offender's ability to earn time off of his sentence through good behavior.

"Mandatory sentencing was popular way back when," Fischer said, noting that the practice became widespread during the 1970's and 1980's.  "It's not as popular anymore."

Making Changes in Michigan

One state where tough mandatory sentencing laws have lost favor is Michigan, where new laws, which became effective in March, changed the state's traditionally harsh mandatory minimums for drug-related crimes.

Prior to the enactment of the laws reforming Michigan's sentencing requirements, anyone convicted of possession of between 50 and 224 grams of narcotics or cocaine, even with no prior offenses, faced a mandatory minimum sentence of 10 years.  Under the new legislation, however, judges are no longer required to abide by the 10-year minimum; sentences can now vary up to a maximum of 20 years.

"What sparked [the reform] was the feeling that there wasn't an equitable application to all defendants," said David Morse, Livingston County Prosecutor and the Immediate Past President of the Prosecuting Attorneys Association of Michigan (PAAM).  "Clearly the law was designed to get the drug king pins," he added.  "Unfortunately, that's not who it was hitting."

Although he doesn't believe that all mandatory minimum sentencing laws take too much power away from judges, in the case of Michigan's mandatory minimums, Morse feels that judges' abilities to use their own discretion were limited.

"There were too many variables for people convicted under the crime," Morse said.  "[The defendants] were too widely disparate in terms of their roles in the [drug] organizations."

So, in response to these issues, many different groups, including the state legislature, PAMM and Families Against Mandatory Minimums (FAMM), a non-profit dedicated to challenging mandatory sentencing laws, worked together to change the face of sentencing in Michigan.

"It was a good bipartisan effort, not only among political parties, but among other groups you wouldn't necessarily view as working together," Morse said.

And the changes that were implemented as a result of these groups' combined efforts directly affected the Michigan Department of Corrections (DOC).

"1,250 prisoners were impacted in some way," said Russ Marlan, spokesman for the DOC.  "To date about 500 [offenders] were paroled [as a result of the new laws]." 

But, in Marlan's experience, Michigan's mandatory minimum sentencing laws, even before they were reformed, weren't so drastic in terms of restricting judges' abilities to determine appropriate sentences.

"Even with the mandatory minimums before, what we found was that a large percentage of the judges weren't following them anyway," Marlan said.  "These bills didn't have too much of an effect because judges really were finding ways around them."

Fighting on the Federal Front

While judges in states like California, Arizona and Michigan are trying to find room for their own voices amidst the sea of mandatory sentencing laws, judges at the federal level are also grappling with issues related to sentencing.

In April, Congress passed the Protect Act, legislation that primarily addresses the sentencing of people who commit offenses against children.  A small section of the Act, known as the Feeney Amendment, however, originally required judges to justify to the Department of Justice all sentences they imposed on any criminals that were less than the federal sentencing guidelines mandated for a particular crime.  Although the Feeney Amendment was changed to pertain only to "downward departures" from the guidelines made in cases involving offenses against children, that provision, before it was amended, created some tension between judges and lawmakers and the Department of Justice.

"There's certainly a tug right now between the Department of Justice and judges," said King, whose organization, the Sentencing Project, supports judges having more discretionary powers.  "[Discretion] is part of the judge's right as a judge."

Former New York District Judge John S. Martin, Jr., now of Debevoise & Plimpton, is a firm believer in a judge's right to discretionary power in sentencing and he resigned earlier this year, citing Congress' drive to limit that power as a primary reason.

"I think that there certainly is an effort to take discretion away from judges in the Feeney Amendment," Martin said.  "They should be encouraging more downward departures, in my view," he added.  "I'm opposed to mandatory minimums."

The Future of Sentencing

While mandatory minimums and federal guidelines have their merits and flaws, the fate of sentencing in each state and throughout the country has yet to be determined.  Will mandatory minimum laws be repealed, allowing judges to have more discretion?  Will federal sentencing guidelines ease in favor of the judiciary?  While it is unclear how sentencing laws will evolve over time, one thing remains certain.  So long as laws like California's "Three Strikes," mandatory minimums and federal sentencing guidelines exist, so, too, will critics, like King, who advocate against them.

"They're all part of an effort to basically take out the individual approach to justice," he said.

Resources

To contact David LaBahn, call (916) 443-2017

To learn more about the California District Attorneys Association, go to www.cdaa.org

To contact Ryan King, call (202) 628-0871

To learn more about the Sentencing Project, go to www.sentencingproject.org

To contact Gail Blackwell, call (213) 746-4844

To learn more about FACTS, go to www.facts1.com

To contact Terry Thornton, call (916) 445-4950

To contact James Hamm, call (480) 966-8116

To learn more about Middle Ground Prison Reform, go to www.middlegroundprisonreform.org

To contact the Arizona DOC, call (602) 542-3133 or go to www.adc.state.az.us

To contact David Morse, call (517) 546-1850

To contact the Michigan Department of Corrections, call (517) 373-6391 or go to www.michigan.gov/corrections

To contact Judge John S. Martin, Jr., call (212) 909-6202