In November, California voters will have their first chance in a decade to reform the state’s “three strikes and you’re out” law, which has imposed cruel life sentences on thousands for relatively minor crimes like drug possession, shoplifting and forgery. The law represents a human rights violation that most Californians not only live with but until now have enthusiastically embraced. At least twenty-three other states also have some kind of three-strikes law, but California’s is by far the harshest. The first two strikes have to be serious or violent felonies, but, unlike in any other state, the third strike can be any of some 500 felonies, even so-called “wobblers,” which can be prosecuted as misdemeanors. Regardless of whether the third strike is stealing a $199 VCR or a brutal rape, offenders receive a mandatory 25-year-to-life sentence.
It’s doubtful that voters would have approved the law had it not been for the passions surrounding the October 1993 kidnapping and murder of 12-year-old Polly Klaas. It soon became clear that her killer, Richard Allen Davis, had skated lightly through the criminal justice system. The three-strikes law was approved by the Democrat-controlled state legislature the following March and soon after affirmed by voters through a ballot initiative.
It is now clear that the law has cast far too wide a net. Today, nearly 7,500 inmates are serving life sentences under the law, nearly 60 percent for nonviolent offenses. Only 102 inmates have received life sentences on second-degree murder or manslaughter charges. By contrast, 357 inmates are serving life sentences for petty theft, 235 for vehicle theft, seventy for forgery and fraud, and 678 for drug possession–hardly the “career criminals who rape women, molest children and commit murder” that voters were promised would be locked away for life if they approved the law.
But neither the Democrats in the legislature nor former Governor Gray Davis was willing to take the political risk of making even minor changes to the law. The main argument in its defense has been that it has lowered crime rates in the state, although there is no compelling evidence to back up that assertion. There are also disturbing regional and racial differences in how the law has been applied. San Francisco, for example, has handed out only thirty-two life sentences under the law, while nearby Santa Clara County has handed out 421–nearly six times the San Francisco rate. Black inmates, who make up 30 percent of California’s overall prison population (but only 7 percent of the state’s overall population), make up 45 percent of third-strikers serving life terms.
The most urgent reform is to change the law so that a life sentence is triggered only by a serious or violent felony. Proposition 66, a voter initiative on the November ballot, would do just that. Polls show that nearly 70 percent of Californians support the initiative, a remarkable shift in public opinion, driven in part by the state’s disastrous financial situation, which in turn has focused attention on its bloated correctional system and its 163,000 inmates. The average expense to house an inmate in a California prison is $31,000 a year. For a third-striker serving a life sentence, that comes to an average minimum cost of $750,000 per inmate. Those costs will rise significantly as the three-strikes population ages.
Despite the benefit of hefty campaign contributions, including $2.2 million from Sacramento insurance executive Jerry Keenan and $150,000 from George Soros, victory for Prop 66 is uncertain. The main stumbling block is that the initiative goes beyond just requiring the third strike to be a serious or violent felony. It also would remove eight offenses from the current list of serious and violent felonies that now count as strikes. Residential burglary, for example, would only be classified as a strike if a house were occupied. Similarly, for an assault to be a strike a prosecutor would have to prove a defendant intended to inflict “significant personal injury.”
Ideally those provisions should have been left to a later measure to deal with. In their present form they have galvanized opposition against reform, predictably led by the California District Attorneys Association, representing elected officials loath to give up any of their prosecutorial powers. Governor Arnold Schwarzenegger and Attorney General Bill Lockyer, a Democrat who is expected to run against Schwarzenegger in 2006, have together signed the ballot argument against the initiative, including a dubious allegation that it will flood the streets with as many as 26,000 dangerous inmates now serving “second strike” sentences. Even liberal San Francisco District Attorney Kamala Harris, who has come under fire recently for her decision not to seek the death penalty against the killer of a San Francisco police officer, is opposing the initiative. One of her key concerns is her belief that proving “intent” would make it more difficult for her to prosecute cases of domestic violence. A sign of just how muddied the debate has become is that Marc Klaas, Polly’s father, is campaigning against it, while Joe Klaas, her grandfather, is campaigning for it.
The role of Keenan, by far the biggest contributor in support of the initiative, has also become a campaign issue. Opponents argue that Prop 66 is simply an attempt by Keenan to free his 25-year-old son, serving an eight-year sentence for a drunk-driving accident in which two people were killed. But Keenan’s son was not convicted under the three-strikes law. Although opponents claim that if the initiative passes, he could be released early for good behavior, it is not at all certain that the initiative would have any impact on his sentence.
It would be unfortunate if such side issues, or the imperfections of the initiative, were to subvert the imperative for reform. Because of California’s importance in passing get-tough laws in the 1990s, Prop 66 would lead to a rethinking of three-strikes laws nationally, as well as strengthen emerging challenges to mandatory fixed-sentencing laws around the country.
The initiative also provides Californians an opportunity to cast a ballot on what kind of society they wish to live in: one in which inmates can be locked up for decades for committing minor crimes, or one in which punishment bears a rational relationship to the offense. No state’s jurisprudence should be contaminated with laws more typically associated with countries the United States denounces as tyrannies.