CRIME AND PUNISHMENT: `THREE STRIKES' STRUCK OUT.

Byline: Edward Bunker

ALTHOUGH arrest-free for 25 years, I went to reform school at 13, San Quentin at 17 and served one more term for the state and one for the Feds (bank robbery).

I think I qualify as an expert in all matters regarding crime and punishment, including, but not limited to, the workings of criminal law.

I've never seen a law so stupidly constructed as the 1994 ``three-strikes, you're out'' law. True enough, it would reduce certain kinds of crime. But so would a hydrogen bomb, with comparative collateral damage, as they call it.

Thank God the conservative California Supreme Court had the sense and courage this summer to restore discretionary sentencing power to judges, allowing them to ignore minor felonies in ``three-strikes'' cases.

Its wisdom will save the state from its folly, born of fear, anger and prolonged frustration about crime, nurtured by politicians who are either ignorant of history or demagogues playing the crime card.

I was a law-library clerk in Folsom State Prison the last time California tried a ``three-strikes'' law, this one aimed at drugs. Any third conviction for narcotics mandated a sentence of 15 years to life.

It didn't matter if the prior convictions were misdemeanors or resulted in probation - the third time meant 15 years minimum, without the possibility of parole.

That Draconian drug law really stopped the drug trade, didn't it? The first ``three-strikes'' law went by the wayside in about five years.

It is ironic that in the new ``three-strikes'' law, drug priors are not even considered strikes - unless it is the third one, when any felony is the jackpot strike.

That might include writing on a toilet wall, because graffiti is being made a felony. Turning back the odometer on the car is a felony. Or writing bad checks. Or buying half a macadamia nut from an undercover cop selling it for crack - ``intent to possess'' is a felony, too.

Of course, drunk driving is not a strike. That's too middle class.

Under the 1994 statute, one fool got 25 years for stealing a six-pack of Bud, another for shoplifting two pairs of jeans.

It cost at least $50,000 for the trial and will cost a minimum of $20,000 for the appeal, which entitles him to an appointed attorney, who must file briefs and present arguments, according to U.S. Supreme Court decisions. A deputy attorney general must then file a response and participate in oral arguments.

Assume the defendant loses all the way and serves 25 years. That will cost a minimum of $30,000 a year and probably more as he gets older and needs medical attention for the chronic maladies of age.

At 60 he will be eligible for parole. What then? What can he do? Work? I doubt it. Unless we want to dump him from prison into aged homelessness, we will give him SSI (Supplemental Security Income) and support him until he dies.

It will cost us a $1 million or more for his theft of two pairs of blue jeans. Multiply such a case by thousands and you can see why the Rand Corp. says it will eventually cost California a full 20 percent of all revenues just for corrections.

Meanwhile, 72 percent of the voters said yes to ``three strikes.'' But many of these same voters (when seated as jurors) have been practicing jury nullification when 25 years seems horrendous for the crime they are judging.

They are not supposed to consider the matter of sentencing or even know that it is a ``three-strikes'' case.

It especially concerns black jurors. For despite the fact that young black males are about 5 percent of the population, they are over 50 percent of the ``three-strikes'' cases.

Once again, thank God for the reason and courage of the seven justices of the California Supreme Court, six of whom are Republicans with unquestionable credentials. Thank God it wasn't a panel of liberal Democrats.

Maybe this will cause those who react with emotional outrage to use some reason. In fact, we would be better served with a ``one-strike law'' for those really dangerous offenses that frighten us: carjacking, robbery with violence, rape, sexual violence toward children or hurting someone during any other crime.

A ``special offender'' statute might serve us far more efficiently, with more justice and less cost, than this monstrosity of ``three strikes.''

I advocate one strike, not from hostility toward the perpetrator, for I know that no man doeth evil in his own mind. If you look closely at his life, you can see that he is precisely what he was taught to be.

I advocate it despite believing that society deserves whatever crime it gets, although individual victims are usually innocent.

I advocate a one-strike law, properly crafted, because even a society that asks for crime has a right to protect itself.

MEMO: Edward Bunker is the author of ``Dog Eat Dog'' (St. Martin's Press), his fourth novel, and an actor and screenwriter.