Two November Ballot Measures Aim to Scale Back the Nation's Toughest Crime Law
BY STEVEN T. JONES
Crime is down, way down, since 1994, when California voters approved the "Three Strikes and You're Out" ballot measure, the toughest anti-crime law in the country.
"Three Strikes has revolutionized the way we combat crime in this country," declared Secretary of State Bill Jones, who co-authored the measure while a Republican member of the Assembly, in a press release last year. "By closing the revolving prison door we have created an effective deterrent to crime that has helped reduce the crime rate in California by 38 percent in just five years."
Similar claims were also made last month by Mike Reynolds, the father of a murder victim who helped write the measure and was its most high-profile proponent.
"The bottom line is: If you're not prepared to lock up criminals you're not going to stop crime," Reynolds said in a commentary that appeared in the Los Angeles Times.
Locally, San Luis Obispo County District Attorney Gerald Shea has attributed the crime rate drop at least in part to Three Strikes, which he believes has a strong deterrent effect.
"It has to be one reason why crimes are coming down, but there could be other factors," Shea said.
Supporters also trumpet the fact that California prison populations have not skyrocketed since Three Strikes nearly as much as its opponents cautioned, demonstrating that we can be tough without breaking the bank.
All this is evidence, they say, that Three Strikes is effective at keeping career criminals behind bars and deterring others from pursuing a life of crime.
So why is Three Strikes under attack? Why will Californians likely vote on not one, but two ballot measures aimed at reforming Three Strikes this November? Why did a recent poll show most Californians want to scale back a law they overwhelmingly approved a little more than five years ago?
The answer lies in the myriad stories of people receiving life sentences for minor crimes, with indicators that our anti-crime hysteria has worn off, and with concerns that California has one of the highest incarceration rates in the world, a rate that has caused prisons to gobble up a growing percentage of our resources.
Maybe all those factors could be overlooked and accepted if Three Strikes supporters were correct in their claims that this tough law has lowered crime rates and made us safer.
Yet the jury is still out on such claims, for which supporters can offer no proof. Indeed, it is the supporters of Three Strikes that have repeatedly blocked official attempts to study the issue.
Calling Strikes
Other states have Three Strikes laws, but none goes as far as California in subjecting ex-convicts to life sentences for crimes that would often result only in fines for most of us.
To refresh your memory, here's how Three Strikes works: Offenders convicted of a "violent or serious" felony–a category of about two dozen crimes ranging from violent crimes to burglaries–are considered to have "one strike."
After that first conviction, if the person commits any new felony he or she is deemed a "second striker," and the sentence for the latest crime is automatically doubled.
If someone has been convicted of two prior violent or serious felonies and commits any new felony, that is considered his or her "third strike." Third strikers automatically receive a sentence of at least 25 years to life in prison.
The "any new felony" provision of California's Three Strikes law is what separates it from most other Three Strikes laws in the country–and what has created the most examples of long sentences for minor crimes.
For example, possession of any amount of drugs is considered a felony for those on parole from prison. So while most people would be charged with a misdemeanor and pay a small fine, those with two previous strikes can be sentenced to life in prison. Most crimes occurring within prisons are also considered felonies, so an inmate who fights or uses drugs in prison can quickly find himself with a life sentence.
Although the Three Strikes measure originally allowed only prosecutors to remove a previous strike from consideration during sentencing–known as "striking a strike"–the California Supreme Court extended that authority to judges in 1996.
In People vs. Superior Court of San Diego County, Re: Jesus Romero (known as the "Romero decision"), the Supreme Court ruled the Three Strikes law infringed on authority given to the judicial branch by the Constitution.
That's because the law usurped a judge's power to look at the facts of a case and, if the judge found it to be "in the interest of justice," to disregard a prior conviction at the time of sentencing.
"Since dismissal is a judicial rather than an executive function, laws purporting to subject to prosecutorial approval the court's discretion to dispose of a criminal charge are unconstitutional," the court found, effectively changing that aspect of the Three Strikes law.
In that case, Romero was facing a third strike for possession of 0.13 grams of cocaine. It is cases like his that are the main focus of two proposed ballot measures to reform Three Strikes.
Changing the Law
Both the Three Strikes Act of 2000 and the Amended Three Strikes Initiative are now entering the signature-gathering phase to be qualified for the November ballot.
Both would change the Three Strikes law to only count violent or serious felonies as strikes and to require those now serving time as strikers for lesser offenses to be resentenced within 180 days.
The Three Strikes Act of 2000–whose sponsors include Joe Klaas, the grandfather of Polly Klaas, whose 1994 murder provided an emotional hook for the Three Strikes campaign–also goes further. It would allow the Three Strikes law to be modified by a majority of the Legislature or of voters, and it would allow only one strike to be counted for each crime.
That provision would prevent, for example, someone convicted of one burglary spree from facing a life sentence for his next felony. Currently a single prosecution for multiple crimes can later be considered as multiple strikes.
A more local example involves the 16-year-old who attacked homeless Richard Bermine in 1998 and was sentenced last year to eight years in the California Youth Authority. Deputy District Attorney Andrew Baird at the time told the Tribune that the boy could later be considered to have two strikes because he beat Bermine with his skateboard, walked away, and came back a few minutes later to kick him in the head.
Shea disagrees that Bermine's attacker could be charged with two strikes for the attack and said most prosecutors are good about using their discretion to tailor the punishment to the criminal, if not necessarily the crime.
He opposes efforts to change Three Strikes, saying the existing provisions allowing either a judge or prosecutor to "strike" a strike guards against excessive punishments.
"With those safeguards in place and in light of the reductions in the rate of serious crimes, I would not want to alter the current two and three strikes law," Shea said.
But most defense attorneys in SLO County say Three Strikes has been a disaster, giving prosecutors unprecedented leverage against defendants, and that it needs to be changed.
"People who have a tainted past many, many years ago, if they commit a felony they are looking at life in prison, and that's not the spirit of the Three Strikes law," said San Luis Obispo defense attorney Thomas McCormick.
Fun With Numbers
More than any other single factor, crime rates are affected by the economy, and that's been true for most of this century. When unemployment is high and there are fewer opportunities, crime rates increase.
When the economy is strong and unemployment is low–particularly in the urban centers, as it is during the current economic boom–crime rates drop.
Crime may be down in California, but it's also down in every state in the country, even those which didn't use the public's concern about crime in the early ’90s to drastically increase criminal penalties.
Some such states–Washington, for example–have seen even steeper declines in crime rates, even though they didn't pass Three Strikes laws or other drastic increases in criminal sentences.
In fact, despite the crowing of law-and-order types about how the toughness of California laws has lowered crime rates, the most recent reports from the U.S. Bureau of Justice Statistics ranks California as having the ninth-highest violent crime rate in the country, ahead of such traditionally high-crime states as New York (No. 12) and Texas (No. 18).
The FBI's Uniform Crime Reports showed that California crime in the first six months of 1999 had dropped 10 percent since the same period in 1998. That's impressive, although the entire Western region dropped by 12 percent, casting doubt on Three Strikes as the cause.
But California's passage of Three Strikes came at an opportune time for its political supporters, coming as in did in 1994 just as the technology-driven economic boom hit its stride, with jobs and government funding for job training and at-risk intervention programs becoming plentiful.
The boom was reflected in nationwide violent crime rates that have declined steadily since 1994 and homicide rates that have dropped to 1969 levels.
Such national crime trends don't seem to support Three Strikes supporters’ claims that the law has "created an effective deterrent to crime," as Jones claimed.
When confronted with the official crime stats even ardent supporters of Three Strikes, like Susan Fisher, executive director of the Doris Tate Crime Victims Bureau, will back off the claim that Three Strikes makes us safer: "It is not meant as a deterrent. It is meant to get repeat offenders off the streets."
Crime may be dropping, but in San Luis Obispo County, as in other California counties, the number of two- and three-strikes cases are on the increase.
The San Luis Obispo County District Attorney's Office filed 92 second- or third-strike cases in 1999, compared with 63 filings in 1998 (of which two are still pending resolution, illustrating how such cases are often lengthy and complicated).
The Law's Impacts
A study gauging the true impact of Three Strikes has been sought by its critics, but Three Strikes supporters have blocked such a study. The California Legislature has twice approved legislation to study the impacts of Three Strikes, only to have it twice vetoed by then-Gov. Pete Wilson.
Current Gov. Gray Davis, a Democrat whose tough-on-crime stances are virtually indistinguishable from his Republican predecessor, has also publicly opposed studying the impacts of Three Strikes or other determinate sentencing laws on the state budget, on the crime rate, or on criminal recidivism.
The California Legislative Analyst's Office recently did a study looking at who is being sent to prison under Three Strikes, while making it clear "it is not an analysis of the costs or benefits of the law. The Legislature passed SB 873 (Vasconcellos) to require such a study, but the measure was vetoed by the governor."
As of the end of September 1999 about 43,800 inmates were sent to state prison with a second strike and about 5,700 inmates were third strikers. The flow of strikers to prison has been steady over the past three years.
"More than 10,000 second strikers have already been released from prison to parole. These offenders were probably convicted of low-level offenses which resulted in relatively short prison terms, even with the doubling of sentences prescribed under the Three Strikes law," read the report.
The California Department of Corrections estimates that by 2005 the second-striker population will reach 38,000 and the third-striker population will exceed 12,000. Such levels would make strikers about 28 percent of the prison population, up from about 22 percent now.
"Although the number of second and third strikers entering prison each month remains relatively stable, the fact that these offenders serve much longer sentences means that their population totals will grow," according to the Legislative Analyst.
The report also found that, despite a campaign in 1994 that focused on keeping violent career criminals behind bars, "most second and third strikers are committed to prison for nonviolent property or drug crimes."
"The largest number of second strikers falls into the property crime category (36 percent), followed closely by the drug offense category (33 percent)," read the report. "The most common second-strike offense is the possession of a controlled substance (20 percent of total second strikers), followed by petty theft with a prior theft (10 percent)."
Among those given sentences of at least 25 years to life for a third strike 40 percent were convicted of crimes against persons, usually violent crimes, followed closely by property crimes. The most common offenses were robbery (18 percent of third strikers) and first-degree burglary (11 percent).
The report also found wide disparities among counties in the willingness of prosecutors to "strike" strikes.
"For example, both the counties of Alameda and San Francisco have generally chosen to restrict prosecutions of persons as third strikers to those accused of committing a new violent or serious offense, rather than any felony offense as the law permits," reads the report.
(The report released no figures for this county, and Shea said his department doesn’t keep such statistics.)
Similar disparities can be found in the race of strikers. While California's prison population is fairly equally divided among blacks, whites, and Hispanics, blacks make up about 44 percent of third strikers.
While previously prevented from officially studying the financial impacts of Three Strikes, the initiatives to amend Three Strikes are now triggering some official financial analysis.
The Amended Three Strikes Initiative has already gone through its Attorney General's Office title and summary procedures, which included summaries by the legislative analyst and director of finance of the measure's fiscal impacts.
If Three Strikes is amended California could see "estimated short-term state savings of as much as $250 million from reduced prison operations, with long-term operations savings of as much as $500 million [annually]. Additional one-time savings of up to $1 billion could result from delayed construction of new prisons," reads the summary.
Although it estimates the measure's one-time resentencing provisions could cost counties "tens of millions of dollars" statewide, "in the long term, the measure could result in net savings to counties, on a statewide basis, of as much as $15 million annually."
Supporters of Three Strikes are quick to dismiss the financial argument: "How much would you be willing to pay to protect your mother?" was how Fisher, of the Doris Tate Crime Victims Bureau, responded to questions about the cost of Three Strikes.
Even for many advocates of Three Strikes reform, the financial advantages of changing this law pale in comparison with notions of justice, fairness, mercy, and constitutional requirement that the punishment should fit the crime.
Arguing Three Strikes
District Attorney Shea was always a supporter of Three Strikes but said he initially had some reservations about handing down a sentence of 25 years to life for any felony.
"I had some concerns about the third strike being a nonserious offense," said Shea.
Nonetheless, Shea believes the law is working well, especially since 1996 when the Supreme Court granted judges the right to disregard previous strikes in some cases.
"Judges ought to have the power to strike a strike," Shea said. "Judges need to be able to make those discretionary calls."
Shea said his prosecutors are also expected to use their discretion in disregarding previous strikes when that's in the interest of justice, even though "the law requires us to charge all prior strikes if we have information that those strikes occurred and that they were convicted."
"We do follow the law, but at the same time I would like the (deputy district attorneys) to use their discretion," Shea said. "I want the deputies to research the facts of the prior convictions, not just look at if they were convicted."
But defense attorneys accuse prosecutors of using all potential strikes as a threat against defendants, who will often be eager to plead guilty to lesser offenses if a lifetime of liberty is on the line.
"There's just too much discretion in the hands of the district attorney," said Linden Mackaoui, a public defender who has represented many Three Strikes cases in this county.
Local attorneys on both sides of the Three Strikes fence agree that the law gives prosecutors unprecedented power to coerce guilty pleas out of defendants.
"Even an innocent person might say, ‘I can do five years, but I can't do life,’" said San Luis Obispo defense attorney Chris Casciola.
In fact, the ongoing investigation of police corruption in the Los Angeles Police Department's Rampart Division has revealed many such cases, with innocent men pleading guilty to crimes falsely alleged by police officers because of the threat of receiving a third strike.
"The Rampart cases reveal a sorry truth about L.A. law: Using entirely lawful threats, the state can make even the innocent plead guilty," wrote Loyola Law School professor Samuel Pillsbury in a recent Los Angeles Times commentary.
Casciola notes that the vast majority of people being sent to prison under Three Strikes laws are poor and represented by often overloaded public defenders, rather than being able to hire a private attorney.
"When someone is at their third strike they are not usually able to hire a private attorney," he said. "In today's system, it really is better to be rich and guilty than young and innocent. Because there is a certain amount of financing needed to bring the system to task."
Attorneys also decry how arbitrary Three Strikes can be, with the willingness to strike past strikes varying widely among prosecutors, judges, and regions.
"If you have a judge who's a law-and-order guy who's not willing to strike strikes, it's a life case every time," Mackaoui said.
But the most ardent supporters of Three Strikes, such as Fisher, say the law is accomplishing its intent of removing career criminals from society, and there is no need to change anything.
"We are incredibly opposed to both of those initiatives," Fisher said of the two measures to reform the law. "We supported the initial Three Strikes and believe people who commit two violent felonies shouldn't be given a third chance to victimize someone."
Fisher said she has little sympathy for those getting life sentences for nonviolent felonies after spending most of their lives victimizing others. Those with strikes just have to work hard at being productive members of society.
"If you feel like you can't get through your life without committing another felony, move to another state," she said.
Fisher also justified the current Three Strikes impact on nonviolent offenders by noting that they still pose a threat to society: "If you go into someone's house with a gun, you are a murderer waiting to happen."
Fisher said she doesn't understand what motivates someone like Joe Klaas, who has endured a terrible loss at the hand of a career criminal when his granddaughter Polly was murdered but still wants to scale back Three Strikes, actively working on the Three Strikes Act of 2000 campaign.
Although Three Strikes supporters point out that Richard Allen Davis would have been in prison before he killed Polly Klaas if Three Strikes had been a law at that time, Joe Klaas notes that Davis would also have still been in prison under the reformed Three Strikes proposals.
"It isn't making kids any safer to put people away for bouncing checks. It's just a waste of resources. We need to put that money into education," Klaas said. "We have gone to 47th in the nation in funding education and first in locking people up. It's gotten backwards."
Klaas is still bitter about how Polly's murder was used for political gain by Bill Jones, Pete Wilson, and others who pushed Three Strikes. The Klaas family initially supported Three Strikes, but later came to lead the campaign against it.
"We let ourselves be used to further that cause," Klaas said.
While many Three Strikes supporters are motivated by vengeance or even racism, Klaas said anyone taking a rational look at the law has to conclude that it is unjust and unnecessarily expensive.
"There hasn't been a newspaper that has written about Three Strikes in the last two years that hasn't criticized Three Strikes as it now stands," he said. "I think the public is starting to be made aware of the fact that we were fooled."
One recent statewide poll commissioned by the University of California at Riverside's Presley Center found that between 53 and 68 percent of voters want Three Strikes scaled back, depending on how the question is worded.
"When we first voted for Three Strikes, we didn't know what the results would be," said Sam Clauder, a spokesman for the Three Strikes Act of 2000 campaign, who says he voted for Three Strikes in 1994. "But now people are realizing the problems with this law." Æ
New Times staff writer Steven T. Jones has balls but no strikes.