Sparring for Best Crime-Fighting Honors

Crime may not be the biggest issue in the governor race this year, but it has generated some of the campaign’s sharpest clashes and most inflated rhetoric.

The reason is simple. It is now a given in California politics that if you want to win the state’s highest office you must convince voters you’re tough on crime. At the very least, that means supporting the death penalty, longer sentences for criminals and crackdowns on drug dealers.

Even though the crime rate has been dropping for years, fear of crime is still high and potential voters say public safety is a pressing concern.

So it is no surprise that Dan Lungren, a Republican, is using his extensive anti-crime record--as a congressman and as California’s attorney general since 1990--as a sword in the race. Lungren was one of the original supporters of the “Three Strikes and You’re Out” ballot initiative overwhelmingly approved by California voters in 1994 and has repeatedly asserted that the law has played a key role in lowering the state’s crime--an assertion challenged by a recent study to be published in the Loyola of Los Angeles Law Review in November.

Additionally, Lungren has flayed his Democratic opponent, Lt. Gov. Gray Davis, for actions he says show that Davis hasn’t always supported the death penalty.

A Lungren television spot, starring the father of a teenage murder victim, reminds voters that Davis didn’t support the three-strikes measure they enacted. And Lungren has a long list of endorsements from district attorneys, police chiefs and sheriffs up and down the state.

Davis, in turn, has strived to shield himself from Lungren’s jabs by emphasizing his support of the death penalty, his advocacy of the three-strikes measure favored by the California District Attorneys Assn. and some noteworthy law enforcement endorsements, including the Peace Officers Research Assn. of California, the Los Angeles Police Protective League and the California Correctional Peace Officers Assn.. Leaders of some of these unions said they are supporting Davis in no small measure because he favors binding arbitration in their labor negotiations, an approach Lungren opposes.

Davis also has gone on the attack, contending that Lungren has failed to enforce a state weapons law and “allowed more than 16,000 illegal assault weapons on our streets.”

Moreover, in an attempt to deflect Lungren’s charges that he is not the hard-line crime foe he wants voters to think he is, Davis went so far as to say in one debate that “Singapore is a good starting point in terms of law and order”--referring to a country that has no juries, canes individuals for spraying graffiti and executes people for a wide range of narcotics offenses.

“If I ever made a statement like that, the press would hang me from the highest tree and suggest that I was a knuckle-dragging Neanderthal,” Lungren said in an interview. He clearly is frustrated that Davis, so far, has been able to say “me too” on criminal justice issues that Lungren considers the centerpiece of his two decades in public service.

To date, Lungren’s sword does not appear to have pierced Davis’ shield. The clashes between the two have not produced clear distinctions in this realm.

And some analysts maintain that the campaign has not illuminated what sort of crime-fighting strategy works best.

Two professors, Linda S. Beres of Loyola Law School and Thomas D. Griffith of USC Law School, will publish a study in the November issue of the Loyola Law Review saying Lungren overstated the impact of the three-strikes law in a March report. The report said the law is primarily responsible for the “largest overall drop in crime over any four-year period in [California] history.”

The professors’ study says, “There is no evidence that three strikes played an important role in the drop in the crime rate” between 1994 and 1996 (data for 1997 were incomplete, something the Lungren report acknowledges, and the professors did not include that year). Lungren’s chief spokesman, Rob Stutzman, took issue with that conclusion, maintaining that California “has had a historic drop in crime” since the three-strikes law was passed in 1994 and that it is simply “common sense” that there is a relationship between the statute and the crime decline.

The law, passed partly in reaction to the 1993 murder of 12-year-old Polly Klaas by a repeat offender, doubled the usual sentence for a second felony conviction and imposed a minimum 25-year sentence for third felonies--regardless of their nature--if the earlier convictions are for violent or serious crimes.

In 1994, Davis, along with numerous district attorneys, favored a less stringent version than the one Lungren supported. It would have sprung into effect only if the third strike was a serious or violent felony.

But Davis now fully embraces the law that passed. Both he and Lungren contend it could be made even more effective. In 1996, Lungren sharply disagreed with a state Supreme Court decision that gave trial judges discretion to dismiss prior convictions under three strikes when doing so would be “in the furtherance of justice.”

Lungren said that if he is elected, he would push legislation requiring that judges adhere to the three-strikes sentencing scheme. Informed of Lungren’s position, Davis said he would do the same.

‘More Similarity Than Differences’

J. Clark Kelso, a conservative constitutional scholar at McGeorge School of Law in Sacramento, characterized both candidates as strong law enforcement proponents. “There are differences in detail, but on the broad brush there is a lot more similarity than differences,” Kelso said.

In addition to embracing the death penalty and tougher sentences, both candidates have said they favor more prison construction, lowering the age at which juveniles can be tried as adults to 14 and providing Megan’s Law-type registries of convicted molesters. Both opposed Proposition 215, the initiative permitting medical use of marijuana.

On a couple of issues, Davis may have outflanked Lungren on the right.

Davis said he would give judges discretion to lower the minimum age for the death penalty to 14. Lungren said 18 should continue to be the minimum death penalty age, maintaining that if it were lowered to 14 the constitutionality of the entire statute could be endangered.

Davis also said he is open to the possibility of altering the requirement for a unanimous verdict of 12 jurors in a criminal case if “a prestigious study” shows it is warranted. Lungren said he sees no reason to alter the status quo.

Santa Clara University law professor Gerald Uelmen, a former federal prosecutor and a member of O.J. Simpson’s defense team, said he believes there are some important distinctions between Davis and Lungren--particularly on gun control, a frequent flash point in the campaign, and on potential judicial appointments. Uelmen said Lungren may be “more amenable to the gun lobby” and would be more likely than Davis to appoint prosecutors to judgeships.

Lungren has said repeatedly that he has been criticized unfairly on gun control issues. But he said in an interview that he believes he would put more prosecutors on the bench than Davis would.

“Judges are the greatest legacy of any governor,” Lungren said. Referring to the appointees of Gov. Edmund G. (Jerry) Brown Jr., California’s last Democratic governor, Lungren said, “It’s easy to say they were not as tough as those appointed” during the past 16 years by Republican governors George Deukmejian and Pete Wilson.

“Gray says he was at the center of decision-making in the Brown administration, so it’s fair to say he has the responsibility for those kinds of judges,” including former Chief Justice Rose Bird, Lungren said. Bird and two other state Supreme Court justices were ousted by California voters in a bitter 1986 election that centered on the justices’ numerous reversals of death penalty sentences.

Lungren supported that effort. Davis, a friend of Bird’s, cautiously stayed on the sidelines.

But Davis made it clear that he would go toe-to-toe with Lungren on the appointments issue. “Any judge I appoint will understand my strong support for public safety, long-standing commitment to the death penalty and my support for three strikes,” Davis said. “I’m looking for judges who will be tough-minded but fair.”

He added that a number of such appointments would come from prosecutorial ranks.

Little Change in Tactics Expected

Although other criminal justice issues may emerge in the closing weeks of the campaign, the two candidates are expected to keep pummeling each other on familiar themes.

Lungren clearly has been a front-line warrior for capital punishment, which he describes as “an appropriate response to the most egregious crimes of our society.” In Congress from 1979 to 1989 and as attorney general for the past eight years, he has consistently pushed for curbs on death penalty appeals in the federal courts.

After he became attorney general in 1991, Lungren took steps to speed the pace of executions in California. In particular, he established a policy that significantly increased the number of deputy attorneys general who work on capital cases.

He has frequently criticized the American Civil Liberties Union for its efforts on behalf of those facing execution. In April 1992, when the state conducted its first execution in 25 years--that of Robert Alton Harris--Lungren was present for the event at San Quentin prison.

In 1994, at the U.S. Supreme Court, Lungren personally defended California’s jury instruction on what constitutes “reasonable doubt” to acquit a defendant. The high court unanimously upheld the instruction in a decision that had broad ramifications in California.

Davis supports capital punishment, too, saying he favors “the toughest imaginable sanctions for violent criminals.” But as Gov. Brown’s top staffer, Davis aided his boss’ efforts against the death penalty. In 1977, when Brown vetoed Legislation that would have restored capital punishment in the state, Davis urged legislators to sustain the veto.

More recently, as state controller in 1990, Davis opposed Proposition 115, which Lungren backed. Called the Victims Bill of Rights, the initiative broadened the death penalty and made it more difficult for convicted defendants to win appeals. Davis said he was against the measure because it was poorly worded and might endanger abortion rights in California.

On the other hand, Davis has supported several pro-death-penalty measures, including one that made killing a police officer a “special circumstances” crime that warrants capital punishment.

Like Lungren on the death penalty, Davis was out front early on assault weapons. In 1985, he was one of only 25 members of the Assembly who voted for legislation making it illegal to manufacture, import, sell or own assault weapons in California. That bill was a precursor to the Assault Weapons Control Act of 1989, which outlawed dozens of specific types of guns and set a January 1991 deadline for gun owners to register any weapon they purchased before the law was passed. Later, the Legislature, at Lungren’s behest, extended it to March 30, 1992.

However, after the deadline passed, Lungren continued to permit gun owners to register their weapons--16,084 registrations thus far. In July, responding to a suit filed by Handgun Control Inc., San Francisco Superior Court Judge Raymond Williamson Jr. ruled that Lungren’s “continued registration permits illegal assault weapons to remain in the state, posing a significant risk to the safety and welfare of the public contrary to the expressed intent of the Legislature.” Lungren appealed and the case is pending.

Davis continually assails Lungren over that ruling. In the debates, Lungren has retorted that that he has done the best he can with a poorly written law and maintains he has removed 18,000 weapons from California’s streets.

Davis also has repeatedly flogged Lungren for failing to support another weapons bill by Assemblyman Don Perata (D-Alameda). Designed in part to address constitutional concerns about part of the 1989 law, the Perata measure would have outlawed the manufacture of “copycat” military assault weapons and barred the manufacture and sale of ammunition magazines of 20 shots or more.

Lungren at first opposed the bill, saying it might increase litigation and costs. He later reversed field, saying, “It would be ill advised for me to take any public position that could be construed as undercutting our arguments” defending the 1989 law from legal challenges. The Perata bill passed the legislature but was vetoed by Gov. Wilson.

Davis said that if he is elected and the bill clears the Legislature again, he will sign it.