by John M. Curtis
(310) 204-8700

Copyright October 21, 2004
All Rights Reserved.

hen law-and-order zealots passed the California “three-strikes” ballot initiative in 1994, legal experts expected grave injustices, including life sentences for minor felonies like shoplifting. Instead of deterring crime, “three-strikes” swelled the inmate population, draining the state's coffers. Most fair-minded judges hands were tied, preventing mitigating circumstances from dictating appropriate sentences. After 10 years of failure, Proposition 66 promises to correct what should have never passed in 1994. Thousands of unreasonable sentences stand to get reconsidered, costing the state untold millions. Despite throwing his weight behind a $3 billion stem cell research initiative, Gov. Arnold Schwarzenegger opposes Prop 66 on the grounds that it will turn loose 20,000 prisoners. Yet Arnold knows that many of these “three-strikes” prisoners shouldn't' have been locked up in first place.

      According to a new Los Angeles Times poll, voters are poised to jettison California's three-strikes law by a 3 to 1 margin. “Because Proposition 66 is retroactive, thousands of convicted killers, rapists and other violent offenders would be released,” said Schwarzenegger, ignoring the fundamental inequity of three-strikes sentencing. Before three-strikes, judges imposed sentences that fit existing crimes, not assigning extra time purely for repeat offenders or serial felons. Under the old three-strikes law, even second-strikers received weighted sentences. In 1994 the three-strikes law passed by 71%, an overwhelming majority probably affected by the high profile kidnapping and slaying of 12-year-old Polly Klass. Even Polly's father Mark Klass never expected to put shoplifters away for life. Proposition 66 amends the law requiring only violent felonies to count as strikes.

      Proposition 66 also eliminates eight non-violent felonies as strikes under prevailing three-strikes law, including (a) attempted burglary, (b) conspiracy to commit assault, (c) nonresidential arson resulting in no significant injuries, (d) threats to commit criminal acts that would result in significant personal injury, (e) burglary of an unoccupied residence, (f) interference with a trial witness without the use of force or threats and not in furtherance of a conspiracy, (g) participation in felonies committed by a criminal street gang and (h) unintentional infliction of significant personal injury while committing a felony. As one can see, these offenses have no business putting criminals away for life. Blinding enthusiasm for three-strikes forced judges into outrageous sentencing, now threatening to cost the state millions. Despite the alarming costs, a correction is long overdue.

      Opponents, including the governor, suggest that Prop 66 will result in reconsidering 35,000 sentences dating back to 1994. Calling that overblown, the state's legislative analyst sees the number at around 4,000. Sacramento County Superior Court Judge Raymond Cadei calls opponent's claims “patently false,” reminding voters that only non-violent felons would be eligible for review under Prop 66. Fearing that Prop 66 has a good chance of passing, opponents are already contemplating legal challenges. “Undoubtedly, it's going to play out in the courts,” said former USC constitutional law professor Erwin Chemerinsky, now at Duke University. It's ironic that opponents expect legal challenges when the original flawed three-strikes initiative survived court action. Had the courts gotten it right in 1994, it wouldn't be necessary to overhaul the disastrous law now.

      Tough talking law-and-order advocates hailed the original three-strikes law for finally getting tough on career criminals. If California's judges were really too liberal, why was the state's prison system busting at the seams? Population demands can't explain the tidal wave of harsh sentences for non-violent felonies, largely alcohol and drug related crimes. “They're afraid of their own shadows,” said Los Angeles County Dist. Atty. Steve Cooley, blaming the Democratic state legislature for not rewriting the law. Cooley dreads the avalanche of extra work stemming from reconsidering the harsh sentencing from the old three-strikes law. He expects to re-sentence between 16,000 to 18,000 cases in Los Angeles County. “We aren't exaggerating the consequences,” said Cooley, admitting, in effect, that judges went overboard invoking harsh three-strikes sentencing for non-violent felonies.

      Regardless of the costs and inconvenience to the county district attorneys, Prop 66 is long overdue. Too many non-violent felons clog the prisons, when appropriate sentencing would have unburdened the system. Rotting in prison for petty theft or substance abuse makes no sense for either criminals or society. Judges must once again be allowed to match specific crimes with appropriate sentences. Promoting mass hysteria about turning felons loose shouldn't obscure fatal flaws in the original three-strikes law, forcing judges to give life sentences for non-violent crimes. “The problem is they are crying wolf,” said McGeorge Law School professor Michael Vitiello, dismissing opponents hype that Prop 66 will endanger the public. Whatever nightmare the state faces to reevaluate and re-sentence criminals under Prop 66, it pales in comparison to the injustice of those victimized by the old law.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

©1999-2002 Discobolos Consulting Services, Inc.
(310) 204-8300
All Rights Reserved.