A Problem in Emotive Due Process: California's Three Strikes Law

California's Three Strikes law mandates a minimum sentence of 25 years to life for any felony conviction following two prior convictions for certain designated serious felonies. The argument presented here is that this scheme changes sentencing from an essentially adjudicative to a legislative decision and so violates a principle of penal justice which may be called emotive due process. In setting limits on sentencing, the legal system may rely on rule or role regulation (or both). Rule regulation involves rules which place absolute limits on punishment. Given the complexity of the evaluations involved, recidivist punishment schemes are particularly difficult to regulate by rule, suggesting the importance of role regulation. Role regulation works by guiding decisions through the assignment of particular roles to defense attorneys, prosecutors and judges. In sentencing such regulation depends on both prosecutors and defense attorneys having a realistic opportunity to appeal to the judge's sense of compassion for victims and defendants respectively. This requires that the judge have personal responsibility for the sentence rendered. The framers of the Three Strikes law deliberately sought to strip judges of that responsibility by making the imposition of harsh sentences mandatory. This deprives defendants of a realistic opportunity to appeal to judicial compassion and to receive a sentence tailored to the individual and the particular offense of conviction. The article discusses the extent to which California Supreme Court decisions have returned a measure of responsibility to sentencing judges, the extent to which other mandatory sentencing schemes may present similar problems and provides highly preliminary suggestions for translating the emotive due process concept into constitutional doctrine.