Crime & Justice

New battle over 3 Strikes law looms

Former California governor Jerry Brown (2nd R) and Dr. Henry Nichols (2nd L), whose sister was murdered by a
Former California governor Jerry Brown (2nd R) and Dr. Henry Nichols (2nd L), whose sister was murdered by a "Three Strikes" felon, take interviews after a news conference to oppose state Proposition 66, on Oct. 28, 2004 in L.A., Calif. Prop 66 proposed harsher modifications to the Three Strikes law than the current ballot initiative, and a Field Poll showed California citizens may be ready to make amends to the crime law.
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The Three Strikes debate returns to California next year. Thursday, State Attorney General Kamala Harris issued the title and summary for a proposed ballot initiative designed to roll back the state's Three Strikes law – the toughest in the nation.

That clears the way for backers to start collecting signatures for a measure they hope to qualify for the November ballot. It also sets the stage for another hot debate over criminal justice in the Golden State, where tough-on-crime politics have been a staple for decades and easing penalties is unheard of.

Under the proposed ballot initiative, only a serious or violent third strike would lock you up away for 25 years to life, unless you had a previous, very serious conviction for murder, rape or child molestation. Right now, any felony could count as a third strike.

3,000 of the state's 8,000 "three strikers" behind bars would be eligible to petition a judge for reduced sentences if the initiative passes.

California voters last considered Three Strikes almost eight years ago. Then, a rare consensus of California governors opposed Proposition 66.

"We know that if Prop 66 passes, crime will go up," Gray Davis said. "New victims is assuredly the result," Pete Wilson added. "It's an insane idea," Jerry Brown said.

Prop 66 went further than the current initiative by eliminating residential burglary as a crime that could count as a strike. That crime is the most common strike counted against a criminal. The measure sparked an advertising blitz led by then-Governor Arnold Schwarzenegger, who claimed 26,000 criminals would be released.

"Child molesters, rapists, murderers. Keep them off the streets and out of your neighborhood."

The ad exaggerated the measure's effects and typified the kind of fear-driven crime politics Californians had heard for decades. Opponents of the new initiative – like Mike Reynolds – already echo those arguments.

"If you can stop them without a third blood-soaked victim, we have a moral obligation to do so," Reynolds said.

Reynolds is known as "the father of Three Strikes." He helped author it in 1994, and is its foremost promoter. Reynolds, whose daughter was murdered almost 20 years ago, said prosecutors should still be allowed to seek a 25 years to life sentence for repeat offenders, no matter how minor their most recent crimes. Not surprisingly, most prosecutors agree.

"Three strikes is achieving its goal of making California safer," Greg Totten, president of the California District Attorneys Association, said.

It might stand to reason that Los Angeles District Attorney Steve Cooley, a Republican, would concur. He sounds like the very model of an old school prosecutor when you ask him his opinion of drug addicts who steal to feed their habit.

"They ought to stop using drugs. Get a job. Don't rip off other people's homes so you can feed your stupid habit," he said. "I have no empathy for them."

Cooley speaks with equal enthusiasm about California's Three Strikes law. He calls it an "incredibly necessary tool to lock up repeat serious criminals." But unlike many district attorneys – including his predecessor Gil Garcetti – Cooley generally doesn't file a third strike case and seek a 25 years to life sentence for criminals whose latest offense was neither serious nor violent.

"I think it's fundamentally an extreme sentence," Cooley said. "Proportionality in sentencing is part of the ethic and the objective of the determinate sentence law, and disproportionate sentences relative to the nature of the new offense is unfair."

Cooley won't say yet whether he supports the proposed Three Strikes initiative. But he supported a similar measure that failed in the state legislature six years ago. He tips his hat by saying he thinks this version will pass because, as he puts it, "voters are pretty smart."

Republican political strategist Arnold Steinberg also said voters may be ready to reverse decades of get-tough-on crime laws in cash-strapped California.

"Absolutely. I think the economy is bad. People are worried about paying taxes, they are worried about the growth in public spending," Steinberg said. "I think people are going to be more receptive."

But Steinberg adds that Three Strikes reform activists have always had a problem.

"They tend to preach to the choir," he said. "They simply have too many liberals involved and not enough moderates and conservatives."

That was the case at a recent Three Strikes forum at the Bonaventure Hotel in downtown Los Angeles.

"Our initial intent was to abolish this law because there's nothing about this law that's good," Geri Silva tells a small crowd.

Silva heads Families Against California's Three Strikes, or FACTS. She says society is too bent on punishment, and that this latest measure doesn't go far enough.

"We're happy to have this initiative, but why should you get eight years for a petty theft," Silva said, her voice rising. "Hell no. We have got to stop compromising."

Then Michael Romano of Stanford Law School's Three Strikes Project stood up. He helped to craft the latest reform initiative. Romano conceded that it's a modest effort that would not help one of his clients.

"I represent a guy who is severely mentally ill who is serving a third strike sentence for running past a table, taking a woman's purse off the table. She screamed and he threw it under the car less than half a block away," Romano said. "He didn't touch her. And he is doing a life sentence for that because it's termed robbery."

Under California law, robbery is on the list of violent crimes.

Under the initiative, the estimated 3,000 three strikers eligible for shorter sentences would have to petition a judge. Romano said the judge could only reduce the sentence if he or she finds by a preponderance of evidence that the inmate is no longer a risk to public safety.
He hopes to convince police and prosecutors that this is a reasonable reform, but even his natural allies express caution – like State Attorney General Harris.

"When I was district attorney for San Francisco, I had a three strikes policy that in general did not seek a 25 year to life sentence unless it was of a serious or violent nature," she said.

Harris successfully ran for attorney general by promoting "smart on crime" policies. She acknowledges that some district attorneys use Three Strikes a lot more than others.

"But we also have to give weight to the ability of elected DA's to exercise good judgment in determining who will end up in state prison," Harris said, sensitive to her sometimes rocky relationship with district attorneys.

For now, Harris won't take a position on the measure.

A growing conservative "right on crime" movement supports it.

Pat Nolan is a former California Republican state lawmaker who served prison time on bribery charges. Now he works with Prison Fellowship, a ministry for inmates and their families.

"The bible says an eye for an eye, a tooth for a tooth and people think that's harsh. But it was actually a restraint on government," Nolan said. "It said when someone harms somebody by taking their eye, you can do no more punishment than take their eye. It used to be they'd go burn down the village and rape all the women."

Nolan is fond of saying that prisons are for people we're afraid of – but that too often, we fill them with people we are just mad at. The "right on crime" coalition includes Newt Gingrich and Grover Norquist. Neither has taken a position on the latest initiative yet.

Earlier this year, a Field Poll asked California voters whether they would be willing to modify the Three Strikes law. Three quarters said yes. The survey was unconnected to the ballot measure, but it may indicate that voters are ready to reexamine decades of get-tough-on-crime laws, including California's harshest.

This story is second in a three-part series. Read the first article here.