Posted on Wed, May. 01, 2002   
 
 

Criminal justice laws clash in S.J.
COURT OVERTURNS `3 STRIKES' SENTENCE OF DRUG OFFENDER

By Howard Mintz
Mercury News

California voters approved the ``three strikes, you're out'' law to send repeat felons away for life. Then they approved Proposition 36 to give non-violent drug offenders a chance to stay out of prison and get treatment.

On Tuesday, the two very different approaches to criminal justice collided in a case out of Santa Clara County that could affect hundreds of California inmates serving potential life prison terms.

In a 2-1 decision, the San Jose-based 6th District Court of Appeal overturned a 25-years-to-life sentence for "three-striker" Tommy Lee Fryman, ruling that Proposition 36 should apply to his case -- even though he was convicted of cocaine possession two years before the law went into effect in July 2001.

The court concluded that the tough-on-crime 1994 "three strikes" law unconstitutionally required Fryman go to prison for at least 25 years while Proposition 36 entitles him to probation for the exact same crime.

With an armed robbery conviction and other felonies in his past, Fryman was eligible for the long prison term when he was sentenced in 1999 because it was his "third strike." But the appeals court decision centered on timing: If Fryman had been sentenced less than two years later, he would have been put on probation under Proposition 36, which mandates drug treatment for non-violent drug offenders.

Equal protection cited

A divided panel of the appeals court found that the ``drastic difference'' between what Fryman's punishment would be under the two laws -- freedom vs. possibly life in prison -- violates the equal protection clause of the Constitution.

``It's the first and only opinion that really decides this equal protection issue,'' said Marylou Hillberg, Fryman's court-appointed lawyer. ``At least within the 6th District, if you're doing 25-years-to-life and eligible for Prop. 36, I'd file'' a new appeal.

However, the California Attorney General's Office is considering appealing the 6th District decision to the state Supreme Court, which has yet to address the conflict between "three strikes" and Proposition 36.

Tuesday's ruling marks the latest setback for the "three strikes" law, which has been under heavy legal assault in California. The U.S. Supreme Court recently agreed to consider whether a potential life sentence for a non-violent felony "third strike" amounts to cruel and unusual punishment, a case with ramifications for thousands of California inmates.

While the stakes in the San Jose case are not as high as the broad challenge in the U.S. Supreme Court, the 6th District ruling, if it stands, could reopen hundreds of cases across the state. There are more than 1,200 inmates serving 25-years-to-life sentences whose "third strike" was for a drug offense, although not all of them would have been eligible for diversion under Proposition 36.

For one thing, Proposition 36 requires that a defendant go five years without committing any felony. Fryman had gone nearly eight years without a conviction when he was sentenced after San Jose police arrested him with more than a gram of cocaine.

On appeal, Fryman argued that he should be eligible for Proposition 36's mandatory drug treatment and probation provisions, even though it was not law when he was sentenced. State prosecutors maintained that the law was not retroactive and applies only to defendants sentenced under Proposition 36's requirements.

Majority, dissent

Writing for the majority, Justice William Wunderlich said there is no ``rational basis'' for keeping Fryman in prison for 25-years-to-life when Proposition 36 now orders probation for the same offense. Justice Patricia Bamattre-Manoukian dissented, saying that Fryman was not entitled to the benefits of a law that did not exist when he was sentenced, and that there were no constitutional violations in the three strikes sentence.
 

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Contact Howard Mintz at  [email protected]  or (408) 286-0236.  
 

 http://www.thereporter.com/Current/Forum/forum042802_1.html

Sunday • April 28, 2002 

'Three strikes' faces big test

By Thomas D. Elias

For obvious reasons, prison inmates don't like California's harsh "three strikes, you're out" sentencing law.

"The only real impact it has had is to impose thousands of life sentences for petty crimes," writes a twice-convicted armed robber now serving a minimum 25-year-term in Soledad Prison for his third crime, which would ordinarily have been a misdemeanor weapons possession charge.

Now the U.S. Supreme Court will review a federal appeals court decision that, if upheld, will likely result in quick release for 300 or so three-strikes prison inmates. The appellate ruling held it is unconstitutional to sentence felons to 25 years to life for shoplifting or petty theft.

As a result, the claim raised in the inmate's letter could soon get a thorough test.

Backers of the three-strikes law always maintain that even when a third offense is relatively minor and non-violent, the long sentences keep criminals with violent prior records off the streets and out of trouble.

If hundreds of convicts who meet this description do get out, their behavior will reveal a lot.

No one today can be sure if these once-violent criminals will revert to the form that earned them their first two strikes. All we know for certain is that crime rates around the nation have climbed and fallen inversely to the economy over the eight years since California passed its three-strikes law.

When the economy rose, serious crime fell. When the economy dropped and unemployment rose, violent crimes proliferated.

The newest crime increase has been especially visible during the last two years, coinciding with recession. Violent crime had fallen steadily during the boom years of the 1990s. While still below the levels of the early 1990s, murder rates now are on the rise in every major California city. So are armed robberies and burglaries. The California numbers are virtually duplicated almost everywhere, causing many to argue three-strikes laws provide little or no advantage in the 19 states that have them.

If hundreds of prisoners with prior records of violence are suddenly released, we will get a true test of whether crime stays within predictable patterns or actually does skyrocket without the three-strikes law.

Should the high court uphold the appellate decision after hearing arguments in early fall, chances are this test also will soon apply to far more inmates than just the 300-odd whose third strikes of misdemeanor shoplifting or petty theft were raised to felonies because of their priors convictions.

For the appeals court decision then would likely be extended to hundreds more convicts serving longer terms for crimes such as minor drug possession or non-injury drunken driving by a previously convicted felon.

"This could open the door for third-strikers convicted of any other nonviolent offense that would likely be regarded as trivial," said Erwin Chemerinsky, the University of Southern California law professor who won the new appeals decision.

If the Supreme Court agrees with the three-judge appeals panel that unanimously concluded three-strikes sentences for shoplifting were "grossly disproportionate" to the crime and thus violate the eighth Amendment prohibition against cruel and unusual punishment, chances are good a similar appeal on other types of relatively minor third strikes would also be upheld.

Within five years, that could put on the street all or most of the more than 2,000 persons sentenced to 25 years to life for non-violent misdemeanor-level crimes, including things such as possession of stolen property.

This could save the state billions of dollars during the course of their present sentences, since keeping inmates in prison costs more than $25,000 each per year.

For years after three-strikes passed, former Democratic state Sen. Tom Hayden tried to have its provisions restricted to violent third felonies.

"Society doesn't benefit from keeping people who commit minor crimes in prison so long and defendants certainly don't benefit from it," he said. "As they grow older in jail, it's also producing the world's largest system of publicly financed geriatric care."

But some of those who may soon go free had far more than two prior violent offenses before three-strikes became law, even if the strike that put them away for life was minor and nonviolent. Who knows what they'll do upon release?

That's why the effect of the appeals court decision must be monitored carefully for years, it it's upheld. If newly-released onetime lifers live peacefully, they will discredit some seemingly unjust provisions of three-strikes. But if even a few revert to the violence of their earlier crimes, they'll create a justified public resolve to restore the most draconian parts of the three-strikes law.

• The author writes about state politics for The Reporter.