Three Strikes is Constitutional

Seriously, you should know this already if you’re practicing in criminal law.

Special Directive 20-08.1 requires prosecutors to tell the court “Penal Code section 1170.12(d)(2) and Penal Code 667(f)(1) are unconstitutional.”

Numerous courts have already held the Three Strikes Law constitutional on Separation of Powers, Equal Protection and Cruel and Unusual Punishment grounds.

Three Strikes is Constitutional and We’ve Known It For a While

In People v. Kilborn, (1996) 41 Cal.App.4th 1325, 1332, the court found Penal Code § 1170.12(d)(2) constitutional. “The validity of appellant’s argument is dependent on the proposition that the charging discretion of prosecutors cannot be limited by law. Appellant cites no authority for that proposition, and we have found none.” The Court went on to state that, “… the prosecutor retains substantial authority and bases for discretion under the three strikes law. First, he or she must decide whether the person charged actually has suffered a previous conviction of a serious or violent felony. Second, the prosecutor is specifically authorized to move the court to dismiss or strike a prior felony conviction, either ‘in the furtherance of justice pursuant to Section 1385,’ or if there is insufficient evidence to prove the allegations. (PC §1170.12(d)(2)) In light of these provisions, the initiative has been held not to effect a change in the primary duties of the office. (citing People v. Cartwright (1995) 39 Cal.App.4th 1123, 1133) [three strikes statute, §667(b)-(i), valid urgency legislation].) We conclude that the enactment of the three strikes initiative did not violate the separation of powers provision of the state Constitution.” Kilborn, 41 Cal.App.4th at 1333. We have found no decisional authority that overturns Kilborn.

Similarly, the Court has found that “an equal protection violation lies only where similarly situated parties are treated disparately.” [Citations.] In enacting section 1170.12, the voters determined that those defendants who have been convicted of serious or violent felonies merit greater punishment upon conviction of any new felony. (§1170.12(a) & (b).) Such individuals are not similarly situated to those whose initial felony conviction was neither violent nor serious. No equal protection violation has occurred. [Citations.]”  People v. Cressy (1996) 47 Cal.App.4th 981, 993-994.

Other California cases which have held that the Three Strikes Law is constitutional include: In re Coley (2012) 55 C4th 524 [PC 290 registration / Cruel and Unusual Punishment]; People v. Cooper (1996) 43 CA4th 815 [PC 12021]; People v. Goodwin (1997) 59 CA4th 1084, 1093-94 [PC 459-2nd; PC 666/484]; People v. Martinez (1999) 71 CA4th 1502 [HS 11377; PC 69]; People v. Byrd (2001) 89 CA4th 1373, 1382-83; People v. Edwards (2002) 97 CA4th 161; People v. Mantanez (2002) 98 CA4th 354; People v. Romero (2002) 99 CA4th 1418; People v. Haller (2009) 174 CA4th 1080. The US Supreme Court has also ruled the statute constitutional.  Those cases include: Ewing v. California (2003) 538 US 11 and Lockyer v. Andrade (2003) 538 US 63 [habeas corpus review].  

It’s Not Up to the DA to Decide If Three Strikes Is Constitutional

The California Constitution Article III, Section 3.5 specifically states: “[a]n administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

  • To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it
  • being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
  • To declare a statute unconstitutional;
  • To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

Under the separation of powers doctrine, the legislative power is the power to enact statutes, the executive power is the power to execute or enforce statutes, and the judicial power is the power to interpret statutes and to determine their constitutionality. Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1068.  Under California law, the determination whether a statute is unconstitutional and need not be obeyed is an exercise of judicial power and thus is reserved to those officials or entities that have been granted such power by the California Constitution. Id. at 1092-1093.  A local public official, charged with the ministerial duty of enforcing a statute, generally does not have the authority, in the absence of a judicial determination of unconstitutionality, to refuse to enforce the statute on the basis of the official’s view that it is unconstitutional. Id. at 1082.