San Francisco Chronicle: California "3-Strikes" sentencing law could change

'3 strikes': Proposed law tries to restore intent

Marisa Lagos, Chronicle Staff Writer

San Francisco Chronicle November 28, 2011 04:00 AM

 

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As California braces for more budget cuts and moves forward with a plan to reduce its prison population by 33,000 inmates, opponents of the state's "three strikes and you're out" law are preparing to ask voters to make major changes to the harsh sentencing mandate.

Supporters of a proposed ballot measure say it would narrow the three-strikes mandate to what voters wanted all along: a law that keeps murderers, rapists and child molesters in prison for life and doesn't leave low-level, nonviolent offenders languishing behind bars for decades.

The proposed law deals with what opponents see as the most egregious part of three strikes - the provision allowing nonviolent offenders with two previous strikes to be sentenced to prison for 25 years to life for any new felony, regardless of whether the third crime was violent. But unlike previous reform efforts, which have failed, the measure would not allow anyone previously convicted of rape, murder, child molestation or other heinous crimes to appeal their life terms.

It's sure to be controversial, however, because it would allow more than 4,000 felons whose third strike conviction was for a nonviolent crime to ask a court for a new sentence.

No 'wasted resources'

"The original three-strikes law passed overwhelmingly, and what this does is restore the original intent," political consultant Dan Newman said. "What voters wanted in the first place was to make sure the truly most violent monsters are locked up forever. ... What they don't want is wasted resources."

That means that under the proposed law, offenders such as Tulare County's Shane Taylor could appeal their life sentences. Taylor, 42, is serving 25 years to life in prison for possessing a small amount of methamphetamine and was eligible for a third strike because he had two previous burglary convictions.
But Charley Charles, who was sentenced in 2007 to 25 years to life for two weapons convictions in San Francisco, could not appeal his three-strikes sentence because he was previously convicted of attempting to burn his 6-year-old son to death.

The three-strikes law was approved 17 years ago after the abduction and slaying of 12-year-old Polly Klaas of Petaluma by repeat felon Richard Allen Davis. Considered one of the most severe sentencing mandates in the nation, it requires enhanced punishment for repeat offenders.

Prison overcrowding

Those with one previous or serious violent felony conviction who are convicted of a second felony face double the normal sentence. Those with two previous violent or serious felonies can receive a 25-year-to-life sentence for a third felony, even if it is for something minor such as drug possession or shoplifting.

Supporters of the latest attempt to change the law say they have learned from mistakes and note that the state's political climate might make a difference now.

Years of budget shortfalls have led to major cuts in almost all state-funded programs. California is under a U.S. Supreme Court order to reduce prison crowding. And polls consistently show voters believe the state is spending way too much money on incarceration and not enough on education and other programs.

Political winds shift

In particular, Newman said, the authors took lessons from 2004's failed Proposition 66, which also would have limited third strike convictions to serious and violent crimes, but didn't disqualify offenders with previous murder, rape or child molestation convictions. Opponents, including two former governors and current Gov. Jerry Brown, used that to turn public opinion against Prop. 66 in the last weeks of the campaign, saying it would result in tens of thousands of dangerous criminals being released from prison.

Newman said that this time around, supporters have spent a year conducting polling and talking to a wide range of political players in the hope of heading off that sort of opposition.

"I think we will end up having a broad, bipartisan coalition this time. We will not allow this campaign to be pigeonholed, as past efforts have been," Newman said. "This will include law enforcement, Democrats, Republicans, civil right leaders and taxpayer advocates."

If voters eventually approve the initiative, backers believe that about 3,000 of the 4,000 nonviolent third-strikers currently serving time in state prisons could be eligible for resentencing, which could save taxpayers $150 million to $200 million a year.

Even if law enforcement leaders are willing to back the measure, the proposal is likely to meet stiff resistance from powerful victims' rights groups. Three-strikes author Mike Reynolds, whose 18-year-old daughter was murdered in 1992 by a drug addict who had recently been released from prison, opposes any change. He said he wrote the law wholly intending for life sentences to be handed to career criminals, even if their last conviction was for a nonviolent felony such as drug possession.

"Once someone has been convicted of two serious or violent offences, I suggest it's pretty clear what they are capable of," he said. "If this passes, we are likely to see property crimes going up all over the state, and in very short order."

Unlikely problems

Mike Romano, a Stanford University law professor, said statistics show that people serving life sentences for a nonviolent, third strike offense are much less likely to commit another violent crime than other felons. Four percent qualify as high risk of committing a violent crime if released, compared with 20 percent of the total prison population, according to state assessments.

Five years ago, Romano founded the Three Strikes Project, in which law students help to appeal cases of nonviolent offenders who have received a third strike conviction. They have succeeded in reducing sentences for about 25 inmates, he said, and are representing the ballot measure's official sponsor, the NAACP Legal Defense and Educational Fund.

The state assessments show that "nonviolent third-strikers are the least likely to re-offend of any group in prison," Romano said, in part because older people are less likely to commit crimes. At the same time, he said, they tend to be the most expensive to keep imprisoned because they are getting older and their medical costs are skyrocketing.

Checks and balances

Romano stressed that the normal checks and balances of the criminal justice system will remain in place if the law is passed.

Offenders "will have to go before a judge and show they are not a danger to the community before their sentence can be reduced by one day," he said. "And if you do eliminate a life sentence, (taxpayers) get 30 years of cost savings."

Those promoting the effort include wealthy former investment banker David Mills, who has pledged to help bankroll it. The proposed initiative is sitting at the attorney general's office, awaiting a title and summary before backers can begin collecting signatures.