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The Honolulu Advertiser
Posted on: Sunday, February 12, 2006

'Three strikes' law no universal answer

The latest incarnation of a proposed "three strikes" law for repeat criminals in Hawai'i is a clear improvement from previous proposals but it still raises troublesome questions that must be dealt with before any law is enacted.

Earlier proposals were based on a California statute, which triggered a sentence of 25 years to life after the third felony conviction, regardless of how far apart the convictions were or whether the final crime was of a serious or violent nature.

The latest plan, pushed by Attorney General Mark Bennett, would apply the sanction only when a person is convicted of three violent felonies, as described by law. But problems remain:

First, there are questions about what consitutes a "violent" felony. Some argue that burglary, which occurs when the victim is not present, amounts to a violent crime. Others say this is more a crime against property. Also, any form of mandatory sentencing puts additional pressure on our overcrowded jails.

A third point: Why three strikes? Must our courts be governed by rules developed for the game of baseball? Why not four, or two, or six?

But the most important concern has to do with judicial discretion. Every case presents a set of circumstances that only the presiding judge can fully understand.

There may be instances where a person should be receive an extended sentence. In other cases, the totality of the circumstances may convince a judge that even a third offense does not mandate a lock-'em-up-and-throw-away-the-key approach.

A three-strikes provision might be a useful addition to a judge's arsenal of sentencing options, but it should not be mandatory.