Will Proposition 66 Be Able to Repair Law Targeting Repeat Offenders?

September 20, 2004 by Maya Harris, The Daily Journal

Last week, Martha Stewart surprised everyone with her sudden announcement that she'd like to start serving her prison sentence as soon as possible instead of waiting another year and a half while her appeal winds its way through the courts. Better to get it over with it, Martha said at a news conference.

Taking a little license with reality, let's imagine Martha's sentencing judge is Monty Hall of "Let's Make a Deal" fame. And suppose, as a reward for her forthrightly stepping forward to face the music, Monty offers Martha a choice: You can choose which sentence you'd rather serve, he tells Martha. Behind door No. 1 is the sentence currently being served by a convicted murderer. Behind door No. 2 is the term of a guy convicted of possessing a few ounces of marijuana. Both men have felony priors, so California's three-strikes law applies. Although she doesn't know the sentences of either person, Martha -- by anyone's calculation a no-nonsense, savvy woman -- gambles that the drug possessor is probably serving a lesser sentence, so she picks door No. 2, right?

Not if she's in California - because under our current three-strikes law, there are more third-strikers serving 25-years-to-life for drug possession than there are third-strikers in prison for second-degree murder, assault with a deadly weapon and rape combined. In fact, the number of third-strikers serving life sentences for drug possession is more than 10 times the number of third-strikers serving life sentences for second-degree murder.

That's the reality of three-strikes in California. We now incarcerate more nonviolent offenders under three-strikes than violent ones, and, during the last 10 years, we've wasted more than $6 billion to do it -- money that has been spent locking up people for life for stealing T-shirts, spare tires and aspirin, while elementary schools go without textbooks and college students pay ever-increasing fees at public colleges and universities. According to the California Department of Corrections, nearly 65 percent of those serving sentences under three-strikes are convicted of nonviolent, petty offenses.

This is not what most California voters intended. When voters passed three-strikes 10 years ago amid fear of rising violent crime rates, voters wanted to end a revolving-door criminal justice system that let violent predators back out onto the street. Fresh in our memories was the tragic abduction and murder of 12-year-old Polly Klaas by a repeat violent offender. Three-strikes seemed like a way to close a loophole in the criminal justice system that had led to horrible consequences: If you're convicted of two serious or violent felonies, your third felony conviction gets you 25-to-life in prison. The law was clearly aimed at stopping violent, repeat offenders -- like Polly Klaas' abductor -- from striking again.

But the new law cast an extremely wide net. It made no distinction in terms of the severity of those crimes that made one eligible for the 25-to-life sentence. In other words, a person could be twice convicted of a serious crime that involved no violence -- burglary of an empty department store, for example -- and then get caught for a third, nonviolent felony, like stealing baby formula from a pharmacy. That's enough to land that person in prison, on the taxpayer's dime, for life. And now, 10 years later, we know that most of those caught in the three-strikes net are not repeat rapists, child abductors or murders, but T-shirt thieves, aspirin outlaws and bicycle bandits.

It's no surprise, therefore, that a majority of Californians now support three-strikes reform. They want sensible sentencing, measures that will really enhance their safety as opposed to slogans that merely play on their fears.

That's why, according to recent polls, Californians overwhelmingly support Proposition 66. It fixes the major flaw in the current three-strikes law. By tightening the three-strikes net to require the "third strike" be a serious or violent felony, Proposition 66 allows us to be both tough and smart on crime. It frees up millions of dollars in precious public resources each year to pursue those repeat offenders who really pose a threat to our safety. And, by eliminating nonviolent offenses from the list of crimes eligible to count as a "third strike," Proposition 66 brings California in line with the three-strikes laws in two dozen other states, including Utah, South Carolina and Georgia (states that never have been accused of being "soft" on crime).

In addition, Proposition 66 narrows the list of crimes that may be considered "strikes," offenses that have led to some of the most absurd and unfair examples of three-strikes sentencing. For instance, under current law, all residential burglary is defined as a "serious" felony, whether it occurs in a house or toolshed and regardless of whether the owners are home or not. Proposition 66 changes current law to recognize the difference between a person who steals a power drill from a toolshed when the owners are away on vacation and the felon who breaks into your home to steal jewelry from your bedroom while you're in bed asleep.

Under Proposition 66, stealing a power drill from an unoccupied garage or lighting a trash can on fire would no longer carry a third-strike life sentence. Of course, they would still be crimes and would still carry appropriate punishment. And if someone breaks into your home while you're sleeping upstairs or tries to burn your house down, whether you're there or not, that would still count as a third-strike serious felony and carry a 25-to-life sentence. The key difference is that Proposition 66 helps us focus on those offenders who are likely to be violent, repeat offenders and focus our dollars on taking them off the street.

Current law not only creates results where the punishment doesn't fit the crime, it is also inconsistently applied. That means the quality of justice a person receives depends as much on what county someone is in as it does on what crime they have committed. That's fundamentally unfair. CNN reported in 2002 that "even district attorneys are having doubts. Los Angeles' Steve Cooley was elected on a platform of cutting back third-strike prosecutions of nonviolent offenses. 'The public doesn't want bizarre, Draconian and disproportionate sentences,' he says." Proposition 66 eliminates the unfairness inherent in some petty, nonviolent offenders getting life while others get a second chance, depending upon their address; it ensures consistent application across the state.

Furthermore, studies have shown that three-strikes has not been associated with larger drops in crime. California counties that have used the three-strikes law more aggressively have not experienced greater reductions in crime than those counties that used the law more sparingly. In fact, from 1993 to 2002, San Francisco, the county that used three-strikes least frequently, achieved higher reductions in its violent crime rate than any other county in California.

And Proposition 66 makes good fiscal sense, too. According to the Legislative Analyst's Office, Proposition 66's reforms will save California taxpayers hundreds of millions of dollars each year.

As the campaign over Proposition 66 is waged over the next month, voters will hear many stories designed to scare them into defeating the measure. Just as the Willie Horton ads of the 1988 Bush-Dukakis presidential campaign exploited a tragic episode that was as uncommon as it was horrific, the airwaves will soon be filled with threats of California prison gates being flung open to release dangerous felons into our neighborhoods by those seeking to defeat Proposition 66. But don't be fooled. The simple fact is that no one -- not one person -- currently serving time for a serious or violent crime -- be it robbery, rape, murder or anything of the sort -- will be released if Proposition 66 passes.

Indeed, under Proposition 66, not even nonviolent third-strikers will simply be released. Under the Proposition's retroactivity clause, nonviolent third-strikers are given only the opportunity to have their sentences reviewed in a one-time, conditional resentencing hearing before a judge. And those who apply for resentencing are required to waive any claim of double jeopardy, allowing prosecutors to refile tough new charges if circumstances warrant it. Violent third-strikers are not eligible for any sentence reconsideration whatsoever.

More than simply being tough on crime, Californians want to be smart on crime. Proposition 66 offers California voters a real opportunity to make our three-strikes law what it was intended to be: A focused, tough measure that spends our limited resources where it will most benefit the public -- taking violent, habitual offenders off of the streets.

* Maya Harris is an attorney for the American Civil Liberties Union of Northern California and director of the organization's Racial Justice Project.