California Proposition 36, 2012

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Proposition 36, also titled A Change in the "Three Strikes Law” Initiative, was a California ballot measure that modified California’s Three Strikes Law in November 2012. This law punishes habitual offenders by establishing sentence escalation for felonies that were classified as “strikes”, and a mandatory minimum sentence of 25 to life for a third strike offence. Proposition 36 adjusted the law so that in order to be classified as a third strike, the offence must be a “serious or violent felony”. This serious or violent clause does not apply to defendants previously convicted of rape, murder or child molestation. Additionally, the initiative added a provision in the California Penal Code that allows people currently serving life sentences as a result of a nonviolent or nonserious third strike offences to obtain a shorter sentence through a review process. Supporters of the proposition included Steve Cooley, the LA district attorney at the time, George Soros, and the NAACP.^[1] Opponents included Henry T. Nicholas, the author of California's Victims Bill of Rights, California Police Chief’s Association and the Criminal Justice Legal Foundation.^[2] The proposition was passed on November 6, 2012, with 8,575,619 people (69.3%) voting Yes and 3,798,218 people (30.7%) voting No.^[3]

Three Strikes Law

Proposition 36 was predated by two major trends: rapidly increasing incarceration rates and the expansion of the private prison industry. Beginning in the late 1970s, President Richard Nixon announced the “war on drugs”, which led to tough on crime policies including mandatory minimum sentencing, harsh penalties barring inmates from being granted parole or probation, and stricter punishments for drug users both in and out of the prison.^[4]In response to growing numbers of inmates, the private prison industry has expanded nearly 1600% between 1990-2009. Today, private prison companies are responsible for about 6% of state prisoners and 16% of federal prisoners.^[4] Corrections Corporation of America (CCA), for example, owns and operates 66 facilities, and it earned $1.7 billion in revenue in 2011. Even when compared to the rate of overall growth in incarceration, the rate of private prison expansion far outpaced it.^[5]

One direct result of this tough on crime mentality was the creation of what are known as Three Strikes laws. Between December 1993 and January 1996, twenty-four states passed such laws which are designed to punish repeat felons. Under these laws, criminals convicted of a second felony must receive a sentence twice as harsh as a first time offender. A criminal convicted of a third felony, regardless of its violence or severity, will be sentenced to a mandatory minimum of 25 years to life imprisonment. These laws limit the judges’ ability to exercise discretion when sentencing repeat criminals.

The first Three Strike Law was passed in Washington State with overwhelming support from the voters. Its origin was attributed to the public outrage over the murder of Diane Ballasiotes, who was kidnapped, raped, and brutally stabbed by Gene Kane Jr., an escapee from Seattle work-release. Similar outrage in California over the murder of Kim Reynolds and Polly Klaas, both of whom were murdered by repeat felons, led to the introduction and passage of three strikes laws in California.^[6]

The three strikes laws were representative of prevailing public dissatisfaction with the State’s current policies regarding repeat offenders. Studies suggest that the source of public concern lies in judgment about the severity of the crime problem and the ineffectiveness of the courts. Psychologists Zimring and Hawkins suggest that people are motivated to protect themselves and their communities from threats and danger resulting in the support for severe punishment.^[6] Also, people are motivated to punish criminals because rule-breaking behavior poses a threat to the moral cohesion of society and because punishment reasserts social value and the obligation to obey social rules.^[6]

Studies of effects of Three Strikes Law

Since Three Strikes has gone into effect in California, there have been a number of studies that have examined the effects of the law on sentencing patterns and crime levels. Overall, results from these studies have been mixed, with some concluding that Three Strikes has reduced crime rates, while others arguing it has had little impact if any.

One of the earliest studies was published in 1994 by Peter Greenwood and colleagues.^[7] Relying mostly on projected data from statistical models, the authors predicted that three strikes could result in up to a 28% reduction in serious or violent crime, but questioned whether or not the public would be willing to fully fund the bill’s estimated cost of 5.5 billion dollars.

A later study published in 2001 by Franklin Zimring and colleagues took a much more negative view of the law.^[8] Zimring examined samples of felony arrests from three major California cities between 1993 and 1995, and found that the group targeted by Three Strikes, namely people who had committed one or more serious or violent offenders, accounted for 10% of the total crime prior to the law’s enactment, and did not differ significantly from the average criminal population. In terms of actual effects, the study found that second strike offenders were more likely to be punished and received a longer average prison sentence than before, while third strike offenders only had increases in punishment length.^[8] The authors conclude that Three Strikes could not be solely responsible for the large drop in aggregated California crime rates over the 1990s, as this trend began before Three Strikes was enacted and continued at roughly the same rate afterwards.^[8] As Zimring argues, the law had only a weak deterrent effect on crime at best.

A subsequent 2002 study conducted by Joanna Shepherd claimed that both of the above studies underestimate the deterrent effect of the law because they only examined what she calls “partial deterrence” effects of three strikes: that is, deterring of criminals committing a third strike.^[9] She suggests that if this was the case, the expected result would be a small general decrease in all felonies, as any felony can qualify for a third strike offence. However, using statistical regression models Shepard finds that the actual result was a stronger decrease in serious or violent felonies that qualify for first and second strikes, and therefore the Three Strikes deters the general criminal population as well.^[9] She attributes the deterrence of nearly 400,000 crimes, the vast majority of which are burglaries, to the law in its first two years of enactment.^[9]

Another 2001 study by criminologists Marvell and Moody found that homicide rates increased following the passage of Three Strikes Law. In the study, it was argued that criminals, even when committing relatively minor crimes, are more motivated to murder victims, witnesses, or law enforcement personnel to avoid apprehension and the harsh sentence that would come with it. They found that the law would increase the total number of homicides in states enforcing three strikes laws by approximately 17%.^[10]

A more recent study published in 2012 by John Sutton focused more on the law’s effects on sentencing and imprisonment.^[11] Sutton evaluated whether or not probability and severity of sentencing increased under Three Strikes, whether or not average sentencing uncertainty declined, and whether or not race played a significant role in sentencing before and after Three Strikes. He concluded that Three Strikes did increase the number of prison sentences and their average length in California. However he also found that there is “no evidence of systematic prosecutorial manipulation” as a result of Three Strikes sentencing.^[11] In terms of race, Sutton found that black defendants were more likely to receive longer sentences under Three Strikes, but did not find other race-related impacts of Three Strikes.^[11] He highlights the singular nature of this finding as worthy of further study.

Criticisms of Three Strikes Law and movement towards Proposition 36

Despite Proposition 184’s easy passage, by the early 2000s many California citizens were beginning to consider reforming the law. Some common criticisms of the law include prison overcrowding, inconsistent application of the law across the state, increasing costs of funding the growing prison population, and disillusion with particular applications of Three Strikes Law to minor offenses.

Immediate overcrowding of prisons

Within the first four years the implementation of Three Strikes Law, 40,511 people were convicted under the laws in California. The rapidly growing inmate population resulted in an additional $1 billion spent, from approximately $3 billion to over $4 billion, on adult corrections in four years. According to the California Department of Corrections and Rehabilitation, the budget for fiscal year 2011 -2012 has increased to 6.4 billion.^[12] In addition, with the AB900, the ballot that was signed into law in May 2007 granting $7.4 billion for prison expansion, taxpayers will shell out an average of $315,000 per bed for the projects.^[13]

In California specifically, citizens are concerned over the billions of dollars spent by the state legislature on prison construction in the past few years, including $500 million via SB 1022 and $1.2 billion through AB 900, has led to the emergence of a number of anti-prison organizations. One such group is California United for a Responsible Budget (CURB). As a broad-based coalition of over 40 organizations, CURB seeks to “curb” prison spending by reducing the number of people in prison and the number of prisons in the state. The group works to provide resources and broader exposure in the field of prison divestment and to increase the outreach possibilities to the prison abolition movement.^[14]

Clogging of courts

Under the Three Strikes Laws, there were more than 7,400 second and third-strike cases filed statewide at the end of August 1994.^[15] Historically, more than 90% of the defendants would plea bargain for more lenient sentence or dismissal of other charges. However, knowing the consequence of having three strikes, only 14% of defendants with second strike cases and only 6% of defendants with third strike cases plead guilty.^[15] As a result of the significant decrease in plea bargaining, prosecutors and public defenders face a high volume of jury trials.

Inconsistent implementation

Instead of an uniformity of ruling, counties throughout California evaluate the seriousness of crime differently. In 1996, the San Francisco County announced that the county would no longer pursue third strike conviction against drug cases and non-violent felonies in response to the jury’s unwillingness to endorse the harsh consequence.^[16] On the other hand, prosecutors in San Diego County were willing to pursue Three Strikes conviction for any felonies. San Diego has sent more three strikes defendants to prison than any other county with a comparable violent crime rate.^[16]

Ewing v. California

In 2003, Gary Ewing was sentenced 25 years to life in prison after he committed his third felony, stealing three golf clubs from a local shop in California^[17] Under California law, certain offenses known as "wobblers" may be classified as either misdemeanors or felonies. The court refused to exercise its discretion to reduce the conviction to a misdemeanor for Ewing which triggered the Three Strikes Law. Despite Ewing’s appeal, which claimed that his sentence was grossly disproportionate under the Eighth Amendment, the Supreme Court affirmed the court's ruling^[17] The harsh decision for shoplifting not only shocked many people but was also questioned by some judges. This controversial case later led to Proposition 66.^[18]

Proposition 66

In 2004, Proposition 66 made it onto the California ballot. Proposition 66 would limit felonies that trigger the second and third strike to violent or serious crimes and would increase penalties for child molesters, restoring the original purpose of the Three Strikes Law in keeping dangerous criminals in prison and off the streets.^[19] Proposition 66 was backed by Citizens Against Violent Crime, a California political action committee, and Sacramento businessman Jerry Keenan whose son was serving time for manslaughter in a car accident. However, proposition 66 was rejected with 52.7% no votes due to fear that as many as 26,000 inmates would be back on the streets as a direct consequence of its passage.^[19]

Support and opposition

Support

Proponents of the bill argued that Proposition 36 will remove “draconian” standards of doling out punishment for third felonies that are neither serious nor violent.^[20] They claimed that the proposition presents rather modest reforms that would eliminate overly harsh sentencing of minor felonies while keeping serious career criminals behind bars. They also pointed out that repeat offenders will continue to serve longer sentences under Proposition 36.^[20] Supporters rejected opponents’ claims that Prop 36 would lead to a flooding of career criminals into the streets as already incarcerated persons petition for resentencing by pointing out that less than three thousand inmates statewide are eligible to petition, many of whom have been in prison a long time already and are unlikely to cause a resurgence of crime.^[20] Other arguments in support of the proposition include saving California over $100 million per year and reduce overcrowding of prisons.^[21] Major supporters include District Attorneys Steve Cooley, George Gascon and Jeffrey F Rosen, Mike Romano, the NAACP, and the Democratic Party.^[22]

Opposition

Opponents of Prop 36 argued that the Three Strikes Law was widely popular at its passage, had achieved its goal of keeping dangerous criminals off the streets, and dragged down crime rates in the past two decades.^[23] They also dismissed proponents’ claims that its passage would reduce overcrowding by pointing out that inmates serving 25-life under Three Strikes Law constitute a mere 6.6 percent of the prison population, while those serving a life sentence with a third non-serious, nonviolent felony compromise only 3.5 percent of the entire population.^[23] Opponents contended that Proposition 36 creates a “one size fits all” approach that strips judges of their discretion when it comes to Three Strikes cases.^[23] They also asserted that while the Proposition may indeed save the state money, this financial security should not trump public safety or the state’s commitment to being tough on crime. Ultimately for the opposition, Prop 36 was unnecessary as the original bill had built-in safeguards that allowed individual judges to assign sentences in accordance with each criminal’s background and local standards.^[23] Major opponents include Mike Reynolds, the original author of the Three Strikes Law, Keith Royal, and the Republican Party.^[22]

Passage

The proposition was passed on November 6, 2012, with 8,575,619 people (69.3%) voting Yes and 3,798,218 people (30.7%) voting No.^[22] It passed in all counties with a majority. It was most strongly supported in San Francisco (84.5%), Marin (83.2%), and Alameda (78.6%) counties. Madera county passed it with a very slight majority of 52%^[3]

Implementation

Due to its relatively recent passage, a thorough analysis of its implementation and effects has yet to be conducted. However, Stanford Law Three Strikes Project at Stanford Law School and the NAACP Legal Defense and Education Fund compiled a preliminary report of the progress of Proposition 36 in October of 2013.^[24] As of its publication, more than 1,000 prisoners had been released as a direct result of Three Strikes reform.^[24] The report also found that Proposition had already saved California $10-13 million, and projected up to $1 billion in savings in the next ten years.^[24] The report found the recidivism rate of released third strikers to be 2%, a number drastically below the statewide average of 16% of past inmates committing new crimes within 90 days of release.^[24] More than 2,000 more inmates still await resentencing review, and the urgency with which these petitions have been reviewed has varied drastically by county (San Bernardino has the highest rate at 73% and Los Angeles the lowest at 19%).^[24] Of the petitions filed, 66% are pending, 32% have been granted, and 2% have been denied.^[24] The very low denial rate suggests that a majority of the third strikers targeted by Proposition 36 are not perceived as a threat to society. Implementation of Proposition 36 regarding current repeat felons with a nonviolent, non-serious third felony has been implemented statewide, with those individuals receiving double the sentencing time of a criminal committing that particular crime as a first offense.

Problems of implementation

Halfway through the two-year period allotted for inmate petitions, more than two thirds of such petitions have yet to be reviewed^[24] The inconsistencies of implementation of Proposition 36 to currently imprisoned populations is also problematic. The report also stresses the issue of reentry into society of released Third Strikers. Unlike all other prisoners released from California jails, they are ineligible for state and county support, jobs, housing, and drug treatment.^[24] In fact some inmates have been released without warning, and without qualifying for parole, probation, or any other form of state-sponsored assistance in returning to society.^[24] Other critics complain that inadequate prosecutorial resources and attorney’s intent upon denying or delaying resentencing to eligible inmates are also serious impediments to full implementation.^[25]

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