Joshua E. Bowers


“The Integrity of the Game Is Everything”: The Problem of Geographic Disparity in Three Strikes

Joshua E. Bowers

In response to the 1993 kidnapping and killing of twelve-year-old Polly Klaas, California enacted a rigid mandatory minimum sentencing law known as Three Strikes. The product of public fear and political exploitation, Three Strikes engendered little rational debate prior to passage. Consequently, the law’s scope was far broader than Californians anticipated, and primarily incarcerated nonviolent felons. In the years following the law’s passage, concerns about lost proportionality and the systemic costs of Three Strikes led to widespread adaptation of the law. While modification of Three Strikes is universal across the state, the extent of adaptation varies county by county, as each county’s prosecutors enforce the law according to their own principles of proportionality. In this Note, Joshua Bowers analyzes the resulting geographic disparity in the California Three Strikes law and suggests that by applying the Three Strikes law according to personal and local principles, prosecutors are improperly usurping the legislative power to determine a single, coherent principle of proportional punishment. He maintains that varying approaches to Three Strikes render the law a kind of “checkerboard statute,” violating what Ronald Dworkin calls the value of integrity in the rule of law. To remedy this problem, California counties must apply the Three Strikes law in a single, uniform manner. Bowers concludes that it is neither desirable nor feasible for prosecutors uniformly to apply the Three Strikes law as written. Instead, to ensure consistent application, the California legislature must change the law to reflect better a principle of proportionality acceptable throughout California.