Reforming Three Strikes

Prop 36 would prohibit non-violent offenders from being locked up for life, and would save the state $100 million a year.

Throughout the 1990s, tough-on-crime laws were extremely popular in California. Numerous pieces of legislation lengthened prison terms for many crimes, and the War on Drugs locked up an unprecedented number of small-time criminals. However, it was California’s Three Strikes law — approved by an overwhelming majority of voters in 1994 — that exemplified the tough-on-crime mindset of the decade.

The statute was one of the first of its kind, and while 24 other states have enacted similar laws, California continues to have arguably the harshest three-strikes policy. What sets California apart is that it allows offenders to be sentenced to life in prison even if their third offense, or strike, is not violent. This aspect of the law has resulted in some 4,000 low-level offenders and drug users being locked up for life. In addition, about 1,300 convicts with no history of violence against people are also serving life terms. Housing these prisoners will end up costing the state billions of dollars in the coming decades.

If approved, Proposition 36 would place California’s three-strikes policy more closely in line with that of other states. It would mandate that life sentences only be imposed when the third offense is violent or serious, unless the defendant had previously been convicted of an extremely violent crime, such as murder or rape. Minor repeat offenders would receive double the normal sentence for their third conviction rather than life behind bars. In addition, the thousands of non-violent third-strike offenders currently serving life terms could petition for resentencing.

These changes could save the state $100 million a year, according to the nonpartisan Legislative Analyst’s Office. “We’re in the midst of a dual crisis: We have overflowing prisons and an underfunded state,” said Dan Newman, a strategist for the Yes on 36 Campaign. “Prop 36 would address both of these problems through a commonsense, modest reform.”

Prop 36 isn’t the first attempt to change three strikes in California. Since it was enacted in 1994, twelve separate bills in the legislature have attempted to reform the law, yet all failed to gather the necessary support. The biggest opposition to change has come from law-enforcement agencies, which have historically united against any proposed reform to three strikes. But with Prop 36, the law-enforcement community is somewhat divided.

Forty California prosecutors, judges, and police officials endorse Prop 36, including Los Angeles County District Attorney Steve Cooley, a Republican. In 2009, Cooley sent more people to death row than the entire state of Texas did, and he doles out one of the highest numbers of life sentences to third-strike offenders. In short, Cooley has a reputation for being tough on crime, but he also has a third-strike policy that’s nearly identical to Prop 36. “We’re not seeking life terms for petty theft with a prior, or two-bit forgery, or possession of drugs,” Cooley said. “We focus on the violent criminals … saving our overcrowded state prison cells for those that truly deserve it.”

By limiting his prosecutorial scope, Cooley has also achieved one of the state’s highest conviction rates for third strikers. Crime has also fallen to historic lows in his county. “We believe this is primarily attributable to our three-strikes policy,” he said, “which allows us to effectively incarcerate those that need to be incarcerated.”

District attorneys in California have discretion in how they use three strikes. As a result, there is a huge disparity in how the law is enforced. Non-violent third-strike offenders have been sentenced to life in prison in some counties, while petty criminals have received much lighter sentences in other counties for the same types of offenses.

Although Cooley’s success has prompted a handful of other counties to implement similar practices, including Santa Clara and San Francisco, most prosecutors aren’t eagerly following his lead. The California’s District Attorney’s Association likes the discretion that the law affords to prosecutors, and for this reason it opposes Prop 36. “Cooley has chosen his policy,” said Tom Toller, director of legal research for the association and one of the biggest opponents of Prop 36, “but there are 57 other elected DAs, and our association wants to preserve their discretion.”

Toller noted that under the law, prosecutors can eliminate a strike fairly easily at trial, and a judge can dismiss a strike in the interest of justice. As such, Toller argued that only the most dangerous third-strike offenders currently receive life sentences. “Prosecutors are focusing only on defendants whose criminal histories make a life sentence appropriate — people who have shown the inability to rehabilitate and end a life of crime,” Toller contended.

State statistics show that many prosecutors have been using the Three Strikes law more cautiously in recent years. For example, 83 percent of all three-strikes inmates were imprisoned before 2004, and only 90 non-violent third-strike offenders have been sentenced to life over the past three years in the state. This comes in stark contrast to the early days of the law. Between 1994 and 1998, more than 2,100 inmates received life sentences for drug possession or property crimes alone, according to a National Institute of Justice study.

According to a recent poll, Prop 36 appears to have strong public support. The poll, conducted by the University of Southern California and the Los Angeles Times, showed that 66 percent of likely voters said they will vote in favor of Prop 36, while only 20 percent opposed it. But this doesn’t mean it will breeze into law. In 2004, a similar proposition showed an equally strong lead, but was defeated by an eleventh-hour political advertising campaign headed by then-Governor Arnold Schwarzenegger and supported by nearly every law enforcement leader in the state — including Cooley.


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