Californians: Vote for Three Strikes Reform (Prop 66)
Since California instituted the "Three Strikes You're Out" criminal sentencing scheme 10 years ago, thousands of defendants have received 25-year to life sentences, without the possibility of parole, for petty, non-violent crimes. That is not what California's voters intended in passing Three Strikes, and it is costing the State hundreds of millions of dollars to incarcerate (and waste the lives of) non-dangerous offenders.
On November 2, Californians will vote on Proposition 66, a measure to reform Three Strikes so that it would only apply to those who committed specified sex crimes or crimes of violence. Two thirds of California voters support Prop 66, and it has broad support among both Democrats and Republicans.
Jeff at SoCalLawBlog, who is against Prop 66, has posted a criticism of it and invited other California law bloggers to debate him. Continue reading this post to read my (rather long, technical and wonkish) response:
UPDATE (10/17): The Los Angeles Times endorses Proposition 66.
Here's what Proposition 66 does, according to the California Attorney General (who, by the way, officially opposes it):
- Amends "Three Strikes" law to require increased sentences only when current conviction is for specified violent and/or serious felony.
- Redefines violent and serious felonies. Only prior convictions for specified violent and/or serious felonies, brought and tried separately, would qualify for second and third "strike" sentence increases.
- Allows conditional re-sentencing of persons with sentences increased under "Three Strikes" law if previous sentencing offenses, resulting in the currently charged felony/felonies, would no longer qualify as violent and/or serious felonies.
- Increases punishment for specified sex crimes against children.
But SoCalLawBlog wrote:
Ambiguity in the text of a ballot measure that would soften the nation's toughest three-strikes law might free thousands more California prisoners than supporters have advertised. . . .[W]hat many voters might not realize is that a single phrase in the reform measure could lead to the release of 26,000 prisoners overall - almost 16 percent of the inmate population. . . .
[T]he phrase in question, appearing deep inside the 20-page measure, says sentence reductions are "not limited to" third strikers serving life terms for an offense that would no longer be considered a strike under the proposed changes.
I disagree with the analysis in your post.
First, though the "not limited to" language is "deep inside" the Proposition, it is hardly "buried," as your post implies. In fact, it appears in the first sentence of the section entitled "SEC. 11. Release of Qualified Individuals." (The full text of Prop 66 is here.)
Second, I don't see the ambiguity that your post seems to be concerned about. The section in question says, in part:
Any individual sentenced under the prior Three Strikes law, including, but not limited to, paragraph (2) of subdivision (e) of Section 667 of the Penal Code [part of three strikes], paragraph (2) of subdivision (c) of Section 1170.12 of the Penal Code [part of three strikes], and/or Section 707 of the Welfare and Institutions Code [three strikes for minors tried as adults], for an enhanced conviction that would not qualify for enhancement under this statute, shall qualify for resentencing and be remanded to the court of origin for resentencing, subject to the following conditions:
Each of the "conditions" that follow includes:
The currently charged felony resulting in the imposition of an indeterminate term of life in prison was not described as a violent or serious felony pursuant to this act.
My plain English translation of this is: "Any individual sentenced under the prior Three Strikes law, including, but not limited to certain specified parts of the prior Three Strikes law, will qualify for resentencing if the felony resulting in the imposition of an indeterminate term of life in prison was not described as a violent or serious felony pursuant to this act."
In other words, if the defendant received a life sentence for a non-violent, non-sexual offense under the old Three Strikes law, and if that offense is not part of the new Three Strikes law, then the defendant qualifies for resentencing.
I don't see any ambiguity there, or any secret way for defense attorneys to exploit the phrase "not limited to" to expand the class of offenders eligible for resentencing beyond what the plain language of the Proposition seems to indicate.
Am I missing something?
And by the way, it is misleading for opponents of Proposition 66 to say things like "it will free thousands of criminals now in California prisons and put them back on the streets." That makes it sound like violent criminals will swarm out of the prisons in huge numbers on November 3rd, which is not true.
Before anyone goes free, he or she will have to be resentenced by a judge in a court of law where a prosecutor will be present to argue against any sentence reduction.
It is also misleading for opponents to say that Prop 66 will "cost millions." While it probably will "cost millions" to process all the wrongfully sentenced defendants through new sentencing hearings, the result will be a savings of hundreds of millions of dollars from the resulting reduced prison population.
Proposition 66 is a good measure. It eliminates the worst, unintended consequences of California's original Three Strikes law, while still putting (and keeping) violent or sexual re-offenders away for good. Vote for Prop 66.
Comments
You are indeed missing something. Several things, in fact.
First, the released convicts will commit more crimes. If you don't think they will then you are naive. Those crimes will cost society money -- in lost income, in lower quality of life, and in lost property.
Second, the language is more ambiguous than you suggest. I tend to agree with you that a court should read the language as releasing only third-strikers, but defense attorneys across the state are already preparing their briefs arguing that second-strikers (that's about 22,000 extra inmates) should also be resentenced. You can read my full analysis of the language and the potential ambiguity here.
Third, the fact that a prosecutor will be present to argue against any sentence reduction is meaningless, because the law requires a sentence reduction in any case covered by the initiative. Prosecutors' arguments cannot change that fact.
Posted by: Patterico | October 14, 2004 11:24 AM
Patterico,
First, thanks for your intelligent and reasonable comment.
Second, I read your analysis of the "potential ambiguity" of the "not limited to" language. I note that in your comment you said that you "tend to agree with" me that a court should should interpret the law as applying only to third-strikers.
Frankly, I think this alleged "ambiguity" and the feared "release [of] 22,000 extra inmates" is a load of crap -- a red herring thrown out by those opposed to Prop 66 (and those perhaps somehow benefitting from the gigantic prison industry).
Here's an excerpt from an associated press report from more than a year ago:
Despite a declining crime rate, America has the highest incarceration rate in the world. Overall, 702 of every 100,000 residents are incarcerated. Among black males between 25 and 29, an astonishing 12.9% were in prison in 2002.
To me, these numbers demonstrate that in addition to having a crime problem, America has an over-incarceration problem. As quoted above, "experts say mandatory sentences, especially for nonviolent drug offenders, are a major reason inmate populations have risen for 30 years."
This is costing us billions and billions of dollars, and doing little or nothing to reduce violent crime. It has to be reformed. It is not only stupid, it's immoral.
You wrote that if Prop 66 passes, "the released convicts will commit more crimes. If you don't think they will then you are naive. Those crimes will cost society money -- in lost income, in lower quality of life, and in lost property."
I'm sure some of them will commit crimes. But you can say the same about any group of people. You or I might commit crimes in the future. Should we be locked up now because we might? At what cost?
Even if Prop 66 passes, California will still have one of the toughest Three-Strikes laws in the nation. The law now is too harsh, too expensive, and completely irrational. Prop 66 is not "soft on crime": it is simply good common sense. Please vote for it.
Posted by: John | October 15, 2004 12:58 AM
Frankly, I think this alleged "ambiguity" and the feared "release [of] 22,000 extra inmates" is a load of crap -- a red herring thrown out by those opposed to Prop 66 (and those perhaps somehow benefitting from the gigantic prison industry).
Unfortunately, legal experts such as Erwin Chemerinsky don't think it's a "load of crap" -- they think there is a valid argument there. And if you read my post carefully, you saw that, while on balance I think the law should be read as applying only to third strikers, I definitely see the potential for ambiguity.
Face it. The law was written by defense attorneys, for criminals, with no input from prosecutors or judges. How shocking is it that prominent legal experts like Chemerinsky think that it could be interpreted to free the maximum number of criminals?
You or I might commit crimes in the future. Should we be locked up now because we might? At what cost?
I have not committed two previous serious or violent felonies such as murder, rape, robbery, kidnapping, arson, child molestation, or residential burglary. How about you?
Come on. You can't be serious. Do you truly see no difference between the likelihood of you or me committing serious or violent felonies, versus the likelihood of someone doing so when they have established a track record of committing such crimes?
If that is your belief, than I need say no more. I'll stack up my argument against yours any day, and I invite readers to make their own judgment as to whose argument makes more sense.
Posted by: Patterico | October 15, 2004 9:34 PM
A lot of really dumb arguments get thrown around in debates on crime related issues, but this one is probably the dumbest of them all. I mean, seriously. How thick does one have to be to mention both a declining crime rate and a high incarceration rate in a single breath, even while remaining oblivious to any possibility that there might be a causal relationship between the two?
Posted by: Xrlq | October 17, 2004 5:59 PM
Dear xrlq,
Your point is taken. Thank you.
You argue that I am "dumb," "dumbest," and "thick" because there is a "possibility that there might be a causal relationship between" higher incarceration rates and lower crime rates.
I fully concur that there is a "possibility" that locking up tens of thousands of people would result in a decrease in future crimes, because those tens of thousands of people would be unavailable to commit them. But that doesn't make it right.
Your "possibility" neither explains nor justifies the fact that America's incarceration rate continues to increase while its crime rate goes down. It's not just "more prison = less crime." It also appears to be "less crime = more prison." It's more than cause and effect. There's an inverse relationship there that doesn't make sense, and needs investigation. That's what I was writing about when you exercised your superior intellect by calling me "dumb," "dumbest," and "thick."
Posted by: john | October 18, 2004 12:23 AM
I didn't call you anything. I called your argument dumb, which it is. I also asked rhetorically how thick one has to be to deny something that is obvious to most people, and should be obvious to anyone who isn't intentionally NOT seeing it. It doesn't take a rocket scientist to know that longer prison sentences for career criminals will lead to both a higher overall incarceration rate and a lower crime rate. All it takes is someone who isn't blinded by ideology.
Whatever point you thought you were making with the Associated Press article you brought up is also not taken. Even if I were to accept your unfounded assumption that a high incarceration rate is a bad thing, Prop 66 isn't about the U.S.'s overall incarceration rate, nor even California's. It's about freeing a small, specific class of hard-core recidivists, not the petty drug offenders who, according to the AP, make up the lion's share of the nation's high rate.
Posted by: Xrlq | October 18, 2004 9:52 PM
Xrlq wrote:
No, it isn't. And you know it.
I have not argued and am not arguing that "hard-core recidivists" who repeatedly commit violent or sexual crimes should not be locked up for good. They should be. And under Prop 66 they still will be.
Prop 66 does not repeal Three Strikes. It reforms it. Three Strikes in California is flawed because it permanently locks away thousands of people for petty offenses such as shoplifting or drug possession, while also properly locking away the "hard-core recidivists." That's not what it was intended to do, that's not what it was supposed to do, and that's not what it ought to do.
Prop 66 simply fixes this flaw, while still locking away violent, dangerous repeat offenders (or "hard-core recidivists"), as Three Strikes was meant to do.
Why would anyone oppose this change? I can only think of three reasons: The opponent is employed by (or invested in) the prison industry; the opponent is a sadist; or the opponent is insane.
Xrlq mentioned my "unfounded assumption that a high incarceration rate is a bad thing." What I actually wrote was that "America has an over-incarceration problem" -- not just a high incarceration rate.
Does Xrlq actually think that the idea that over-incarcerating people (e.g., locking away people who don't deserve or need to be locked up) is "bad" is an "assumption" that requires further "foundation"?
Xrlq's reasoning seems to be: The more people we lock up, the less crimes will be committed. Therefore, the more people we lock up, the better, regardless of whether they deserve it, whether it is fair, just or reasonable, or how much it will cost taxpayers.
In the 18th Century, Jonathan Swift wrote satirically that the solution to the "Irish problem" was for the English to eat Irish babies.
In the same vein, I propose the following to Xrlq: The vast majority of cancer deaths in the U.S. occur in people over the age of 50. We could instantly reduce the cancer mortality rate in our country by more than 80% if we eliminated everyone over 50. Does that make it a good idea?
Posted by: John | October 18, 2004 11:32 PM
It is a shame that the State of California has become so dependant on prison dollars, that they are willing to lock up persons for pizza theft in order to justify huge CDC budgets. I wonder if CDC board members paid or volunteer workers? If paid, their annual salaries should be publizied. California has the highest return to prison rate in the nation, partly for the 3 strikes law, but also for their insistence of returning "technical" non-violent parole violators back to jail. The entire California penal system is a joke, as is the justice process. It is time for it to be revamped...starting with the 3-Strike Law. Maybe, just maybe justice will for once be served with a spoone and not drank out of a straw.
Posted by: Jane Doe | November 2, 2004 3:55 PM
I would like to begin an opposition against the poll determination or begin a new proposition. My efforts are motivated from the amount of children that are being forced into the welfare system and being subjected to cruel and unusual punishment as well.
They are forever going to be negatively affected by the current 3 strikes law. They will suffer from everything ranging from poverty, future poverty, non-parental inneraction, and supervision,pshychlogical and emotional problems to unproductive citizenship in our future communities!
these are examples of the effects. I can only imagine what other negative effects the 3 strikes law will impose on our economy by keeping these individuals housed and fed. By adding to the welfare recipients that are allready flooding our system.
etc...
R.C. Carrillo
232 balsam Dr.
Orlando Fl,32807
(concerned party)
Posted by: R.C. Carrillo | November 4, 2004 8:44 AM
I think that the people who voted no on prop. 66 dont care about the thousands of children who get molested repeatidly everday. and whos attackers are set free to do it again with not so much as a slap on the wrist.If people would have took the time to really read all the pros and cons about prop.66 maybe they would have done what is right . how can we lock up people for life for stealing a pack of cigarettes or some food. what kind of people does that make us? people messed up by listening to arnold whos probably a rapist himself.
Posted by: angelique | November 4, 2004 10:25 AM
The 3 strikes law wasn't that law for those people that kiddnap and molest kids and murder people? wasn't the law made in the name of a little girl that was kiddnaped and murdered back in 1994 and look at today the way the system is using it , way out of line from what it was meant for . I would have never voted for it if I would have known our system and courts was going to abuse this law in way they are . For example a person was given a strike on a crime that was commited back in 1984 , now this person was put in jail back in 1984 for this crime and did his time and payed all moneies due to the court and the victim. Now that 20 years has passed by the court system has given this person a strike on the case in 1984 that to me is what you would call miss using of the law and what they call double jeopardy and that is wrong. You see that is what this prop.66 was for to make sure the law is ran the way it was intended and for what it stands for . This person I am talking about is my brother he was given 180 years and has never murdered anyone ever and to think our system is to stand for justice the only kind of justice I can see that is going on with the 3 strikes law is unjustice beining give to people left and right.You know when our governor went on T.V. and lied to all of use about what would happen if that law passed it was a lie prop.66 was and is to reform the law to it;s intentand that is for kiddnappers and child molesters and murders. The people in the system for three strikes that were unjustly sent to away for 180 and 25 to life should get a sentences modification right away. To me I think our court system is wrong and needs help with reforming . I will not stop in the fight in trying to get something done to help these people that werelocked up for 180 years .
Posted by: Jennifer M | November 10, 2004 3:38 PM
What's happening here? If a law passed tomorrow that states "Anybody caught fondeling a co-worker will be sentenced to life in prison" would Arnold do life in prison? Of course not, because he fondled co-workers before yesterday. So how can the three strikes law go back and strike people on crimes that were commited and served on (don't even get me started on the travesty of the plea bargain) before the law was passed? Do the California voters really think that the politicians and law enforcement give a rat's rump about us? No way! If I owned a company whose biggest selling product was toilet paper, would I help constipate my target consumers? The prison industry and law enforcement are out of work without criminals. They are also against three strikes reform. What better way to guarantee job security, than to endorse a law that provides inmates by the thousands. I think they should think about what monster they are helping to create. I know if my husband was a police officer, I'd be frantic everyday he left for work. What do these guys have to lose? If a guy is doing a petty crime and a chase ensues, he has a choice. He goes willingly and gets life in prison or he runs and eventually gets caught and gets life in prison. Or wait a minute, the adrenalin and fear are kicking in and maybe, just maybe, he can get away. Well either way he figures he is screwed and he is thinking if the damm baby could have just waited until morning to soil the last diaper he could have figured something out. But no, that is his job as a man and father to provide. So he figures, I have to try to run or my baby will grow up without a father. So he is off and running with his main concern being the survival of himself and his baby. Luckily the baby isn't with him, he gets in the car and takes off, breaking more laws, putting numerous people in danger. Ends up causing a 3 car pile up. The officers wife is now a widow,the baby is now an orphan and the family of five in the mini-van are killed on impact. Arnold's at a fund raiser groping some woman in a dark corner. Desperate times are forcing people to desperate measures. An industry is making billions warehousing our loved ones. I don't know about you, but I don't want my family at the store or near the next traffic stop that forces some scared man or woman who feel they have no other choice,but to fight for their life. And that is exactly what they are doing,fighting for their lives. Yeah sure, then they shouldn't do the crime, etc. But the last time I checked, life happens. We can't control that. But we can control how our fellow human beings are treated.Can you look in the eyes of a child and think that in California they can grow up and make a mistake and do the rest of their LIFE in prison. The three strikes law is reaching out of the lives of hard core criminals and invading and ruining the lives of so many. All for the profit of the prison industry. Again, without prison inmates there is no prison industry, of course they are going to manipulate under the guise of the safety of society. How safe are we when that desperate criminal is fleeing for his life? If we were talking about dogs or cats, or even lab rats, something would have been done already. Animals are people too! Evidently in California people are product and they have huge warehouses full of them.
Posted by: Jenette | May 23, 2005 5:16 AM
personaly I think urlq is right! you can't just put everyone in prison or jail because you think it will give a low crime rate. This will not lower any at all. Did you ever think a child not growing up with there real two parents is fun nope. What I am saying is that also teens commit crimes because they don't have parents. And some people(adults) do it because they are depressed from childhood or lonely without a spouse. This is all I have to say and think before you speak about anyones comment on being stupid.
Thank you
Posted by: Tiffanie at june28,2005 11:52am | June 28, 2005 8:51 AM
today is november 2,2005 and i am writing in regards to this prop.66 situation.My husband is behind bars now because of this prop 66.He does not deserve to be in there.The prison system is taking him away from us his family.We have a 15 month old that has now been away from daddy for almost 7 months and will still be without daddy for another 9 months.That is just not fair.I had to leave California to be closer to my family because i could not afford being on my own with my 3 children.I wish this law would be overturned and hopefully passed so that my husband and the father of my kids can come back home.
Posted by: carmen nixon | November 2, 2005 7:09 AM
The three strike law was intended to keep violent and therefore dangerous criminals behind bars so as to protect innocent civilians and promote at atmosphere of safety where one's children can play carefree without the fear of being stalked, violated or attacked by child molesters. Discretion was given to district attorneys to dismiss prior strike conviction "in furtherance of Justice" but yet we still see an unequal application of the law.
Shifting our focus to petty criminals and cluttering prisons with lower level offenders is not the solution.
Let's re evaluate what this Law was intended to do and stay focused.
I urge the state legislators to examine the impact that sentencing non violent offenders has on their families and ask that they refrain from executing the three strike law so freely but to show leniency where it's truly merited.
Posted by: Mirta Kekenak | November 29, 2006 6:12 AM