California's "Three Strikes" Law: An Unconstitutional Infringement Upon the Power of the Judiciary?

• NCJ Number: 163128
• Journal: San Diego Justice Journal Volume: 3 Issue: 2 Dated: (Summer 1995) Pages: 535-549
• Author(s): J Raffee
• Date Published: 1995
• Length: 15 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This legal note examines whether California's Three Strikes Law violates the separation of powers doctrine under the Constitution.

Abstract

California has two Three Strikes statutes, one that amended Section 667 of the California Penal Code and the other contained in California Penal Code Section 1170.12. Section 1170.12 provides for mandatory sentences for second- and third-time offenders. When defendants are convicted of a new felony, those with one prior serious and/or violent felony conviction face a mandatory sentence of twice the term otherwise imposed as punishment for the current felony conviction. Those convicted of a new felony with two or more prior serious and/or violent felony convictions face an indeterminate term of life imprisonment with a minimum term of three times the punishment provided for the new offense or imprisonment for 25 years, whichever is greater. The author shows that California's Three Strikes Law gives the prosecution the discretion to strike prior felony conviction allegations and that the court's authority to act is conditioned upon such a motion by the prosecutor. If the court has the discretion to deny the prosecution's motion, striking prior felony convictions merely becomes a joint decision of the executive and judicial branches. The author also indicates that the separation of powers doctrine does not invalidate Three Strikes statutes. In particular, the separation of powers doctrine is not violated when the prosecution exclusively moves to strike prior felony convictions. The trial court retains substantial power to remedy injustices, but such remedy is derived from statute not constitutional principle. The trial court may dismiss an entire criminal action in the interest of justice in response to a refusal by the prosecutor to strike a prior felony conviction. The prosecution must then respond by either refiling the action or seeking appellate review based on a claim of abuse of the court's discretion. 73 footnotes