Prop. 36 takes a swing at three strikes

Oct. 29, 2012

By Dave Roberts

If Proposition 36 passes, about 2,800 inmates who have committed multiple felonies and are serving sentences of 25 years to life could be released from prison or re-sentenced to lesser terms. Those criminals were sentenced under California’s “three strikes and you’re out” law, and committed a third felony that falls under the penal code’s non-serious, non-violent categories.

And that concerns Prop. 36 opponents, who spoke at a joint legislative safety committee informational hearing last month.

“The proponents of this initiative like to speak of the pizza thief or the baby formula thief or the bread thief that gets sentenced to 25 to life,” said Sacramento County Sheriff Scott Jones, representing the California Peace Officers Association. “But it’s important to keep in perspective and remember that to get to that point where someone is eligible for a sentence of 25 years to life, they must have been convicted of at least two prior convictions of a serious and violent felony. So they have demonstrated not only a propensity for criminal behavior throughout their lifetime, but they have also demonstrated their own unwillingness to conform to the legal mandates of society.”

California’s three strikes law was enacted in 1994 with the passage of Prop. 184. It applies to criminals who have twice committed serious or violent felonies such as rape, robbery or residential burglary and then go on to commit a third felony, whether it falls into the serious or violent category or not. The minimum term is 25 years to life.

In the debate at the time, the pizza analogy was explained in a 1995 Los Angeles Times article, “Jerry Dewayne Williams was sentenced to prison for 25 years to life Thursday under the state’s ‘three strikes’ law for stealing a slice of pepperoni pizza.”

Currently, there about 9,000 third-strike criminals behind bars, and another 33,000 inmates have two strikes on their records, according to legislative analyst Brian Brown.

Contrary to popular belief, the 25-to-life sentence is not automatic for a third strike felony offense. Only 14 percent of three-strike offenders are actually serving 25-to-life sentences.

“Courts have significant discretion in this area,” said Brown. “Courts have discretion to dismiss prior strikes, or effectively to look at someone who might otherwise be eligible for a third-strike life term and say that in the interests of justice that individual should instead be sentenced to a shorter term. That’s usually done by dismissing one or more of the prior strikes. A person might be eligible for a third strike, but instead get a second strike at twice the normal term.”

Serious felonies

While Prop. 36 would provide similar leniency for many third-strike felons, it would not do so for those who have been convicted of rape, murder or child molestation. And it would still be up to a judge to decide whether a third-striker with a non-serious, non-violent third offense would have his sentence reduced or commuted. Those who pose a risk to public safety would not be eligible for resentencing.

The state budget could save $70 million annually for the first couple of years that Prop. 36 is in effect, increasing thereafter to $90 million annually, according to Brown. He cautioned that actual savings could be higher or lower by tens of millions of dollars per year, depending on how many inmates are resentenced and how many future criminals are convicted of third-strike felonies.

Jones countered that some of that cost would actually be shifted to the state’s 58 counties, which would be hit with the court and jailing expenses for the 2,800 criminals seeking resentencing. These costs would come on top of “the influx of 3,000 inmates to an already overburdened local detention population in each county that has already had to see early releases in many counties because of the realities of realignment,” he said.

But Jones is more concerned about the type of people who would be released under Prop. 36. Although it specifies that they must have committed a non-serious, non-violent third offense under the penal code to be eligible for early release, that still leaves many crimes that most people would consider serious and violent. These include elder abuse, child abuse likely to cause injury or death, involuntary manslaughter, vehicular manslaughter, injuring a peace officer while attempting to escape, possession of a weapon of mass destruction, sexual exploitation by a doctor or psychiatrist, felony spousal abuse, human trafficking, arson, stalking, threatening a witness or juror, or solicitation for murder.

“Those things, while they would defy our common sense definition of ‘non-serious, non-violent,’ are legally non-serious, non-violent,” said Jones.

Crime reduction

The sheriff argued that the three strikes law has been very effective, reducing crime by nearly 50 percent in the 15 years after it was enacted compared to the 15 years prior.

“That’s not a coincidence,” he said. “Crime has been down even with diminishing law enforcement resources during this period of time. Studies have shown that approximately six percent of the people are responsible for 60 percent of the crime. It only stands to reason that if you remove from society these six percenters, as I call them, you will have an impact on the over-represented and over-productive level of crime that they commit. That’s what three strikes has done successfully for almost 20 years.

“Let’s face it, in every society there’s going to be a group of people, a segment of the population, that chooses crime as a career. That’s their choice. We can do nothing about that. If we allow them to continue in that career unabated without consequence, without removing them from society and without protecting the rest of law-abiding society from them, that’s our choice. That’s why I choose to urge everyone to maintain and vote no on Proposition 36.”

District attorneys

Also speaking against Prop. 36 was Sutter County District Attorney Carl Adams, who is president of the California District Attorneys Association. Only a handful of county district attorneys support Prop. 36, he said.

The vast majority of DA’s who are opposed “want to remove the worst offenders from society for the sake of our communities,” said Adams. “And we want to do it no matter what it costs. And we want to do it no matter what the impact is on prison populations. As a matter of fact, if we are going to talk about prison reductions at all, these are the 9,000 people we want to keep in prison. This is the top of the list, folks. These third strikers are the ones we build prisons for. Because putting these people in prison protects our citizens, protects our communities and keeps other people from having to suffer that serious or violent felony for the third time in the criminal’s history.”

Arguments in favor

The strongest argument in favor of Prop. 36 was made by Elsa Chen, an associate political science professor at Santa Clara University who has been studying the effects of three strikes for 16 years. She argued that public safety would actually be improved by releasing third-strikers. This is because they are older on average than most prisoners and less likely to commit crimes when they get out. In addition, by taking up space in overcrowded prisons, they pressure authorities to release younger prisoners who may be more likely to return to crime after they’re released.

“Therefore, implementing Proposition 36 is unlikely to lead to higher rates of crime,” said Chen. “In fact, its passage might free up space for more serious and violent offenders by not filling up our prisons with aging non-serious, non-violent offenders.”

Other benefits of Proposition 36, according to Chen, include: 1) Reducing racial disparities in sentencing wherein African Americans are 47 percent more likely to be sentenced to three strikes than whites. 2) Reducing geographical disparities where district attorneys and judges in counties with a higher proportion of Republicans or Latinos are more likely to impose three strikes sentences.

But, unlike other Prop. 36 proponents, Chen acknowledged that three strikes has led to a decrease in some crimes, although not the nearly 50 percent reduction that Jones and others claim.

“Three strikes laws in general appear to be associated with slightly accelerated declines in robbery, burglary, larceny, motor vehicle theft,” she said. “But there was no effect on murder, rape or aggravated assault.”

But her arguments and those of other Prop. 36 supporters did not persuade Senator Tom Harman, R- Huntington Beach, to abandon three strikes.

“I’m absolutely convinced that it’s working,” he said. “It’s what the people want. I am a little skeptical of the fiscal analysis suggesting there may be substantial savings. I kind of doubt that’s really going to happen. It’s the old story: if it ain’t broke, don’t fix it. We’ve seen a 50 percent reduction in our crime rates in California. Yes, there have been somewhat similar reductions in other states. But I see no reason to try to modify the existing law and try to make it a little more lenient. Let the local DA in the various different counties do it that way if that’s what they want. I don’t think we need a statewide change to this law, which has had such a dramatic effect. The people that weren’t discussed too much here today, the victims both past and future, are of great concern to me. If we can do something to help prevent additional crimes from being perpetrated on future victims I’m fully supportive of that.”

Passage of Prop. 36 looks likely. An Oct. 21 USC Dornsife/Los Angeles Times poll shows 63 percent in favor and 22 percent opposed. An Oct. 11 California Business Roundtable poll shows 72 percent support.