Three strikes, you're out
Voters decide the future of stringent law of life imprisonment for repeat felons
By Carla Iacovetti 08/16/2012
“The law is reason free from passion.” – Aristotle
Whether one agrees with the “three strikes” law or not, it is a reality here in California. In 1994, “three strikes” was passed by the Legislature, and signed by Gov. Pete Wilson and approved by voters as a ballot initiative. While the “three strikes” law was passed as a result of several highly publicized violent crimes, it has posed a series of harsh circumstances for those who did not commit serious and or/violent crimes.
“The law doesn’t say that the current charge has to be serious,” says Kim Gibbons, a Ventura County senior deputy district attorney. “It has to be any felony if they have two serious felony convictions.”
According to the California Penal Code, section 667 (b), the three strikes law is intended to “ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” Yet many of those who have been sentenced have not committed violent crimes.
“The law has sentenced people to life imprisonment for relatively small crimes such as drug possession or petty theft,” said Michael Romano, co-founder and director of the Stanford Three Strikes Project.
Michael Romano, co-founder and director of the Stanford Three Strikes Project.
In addition to repeat offenders facing life in prison for nonviolent crimes, the sentences are doubled for prior offenders, and juvenile and out-of-state convictions also count as strikes.
Some have commended the law as being the definitive get-tough-on-crime measure, while others have been concerned with unfair and unnecessary imprisonment. Conceivably, a man who had two prior felonies could spend 25 years to life in prison for shoplifting.
“That is not a way to run a state or a criminal justice police. A life sentence for petty theft or drug possession is excessive,” Romano said.
As controversial as the law itself are the wide-ranging studies that show opposing statistics where the effectiveness of the law is concerned. Recently, the Los Angeles Times reviewed the findings of a study on the effectiveness of the three strikes law. Robert Parker, the director of the Presley Center for Crime and Justice Studies at the University of California, Riverside, said that the three-strikes law has done nothing to deter crime but has increased the state’s prison population. In fact, because of the findings, Parker claims that the three-strikes law should be repealed.
“If this very expensive policy isn’t really impacting crime, what are we doing? Why are we spending all of this money? Why are we cutting health, welfare and education repeatedly to fund an expensive system that doesn’t deliver on what its promises were?” he asked.
In 2011, an initiative for the Three Strikes Reform Act of 2012 was filed and approved by the attorney general. California Proposition 36 is scheduled to appear on the November 6 ballot as an initiative state statute with the hope of seeing the original intent of California’s three-strikes law restored. This will impose life sentences for dangerous criminals like rapists, murderers and child molesters. According to Ballotpedia, if passed, Proposition 36 will result in the following:
1. Revise the three-strikes law to impose life sentences only when the new felony conviction is “serious or violent.”
2. Authorize resentencing for offenders currently serving life sentences if their third strike convictions were not serious or violent and if the judge determines that the resentence does not pose unreasonable risk to public safety.
3. Continue to impose a life sentence penalty if the third-strike conviction was for “certain non-serious, nonviolent sex or drug offenses or involved firearm possession.”
4. Maintain the life sentence penalty for felons with “non-serious, nonviolent third strike if prior convictions were for rape, murder or child molestation.”
The issue in question seems to be related to the types of felonies committed. The way the law is now, any felony can send an offender to a long-term prison sentence. According to Gibbons, the district attorney’s office is required to file, no matter what the offense. Even so, there is a process that goes something like this: Once the DA’s office files, then the defendant is arraigned in court, or in some cases there will be a grand jury hearing, and the grand jury might issue an indictment.
“At a preliminary hearing, the DA’s office will produce evidence (police and civilian), and the judge decides if there’s enough evidence to hold a trial,” Gibbons said. “We have to produce probable cause at the preliminary trial.”
If the proposed initiative goes through, those prior felons who commit nonviolent felonies like shoplifting and drug possession will not receive a life sentence, but they will receive twice the normal sentence.
A lot of times, the defendant will plead guilty if some of the priors are stricken. In most cases, judges will strike in more than one prior. For example, suppose a criminal has committed two residential burglaries in the past, and now he’s charged with grand theft in the amount of $950 or more. If the defendant has one serious prior felony, chances are he will not be facing 25 years to life; but instead of the normal three-year sentence, he will get six years.
“The judge has a choice of giving the defendant 16 months, two years or three years,” Gibbons said.
Every prior felon sentenced in this way has a probation report prepared by a probation officer. These reports are very thorough, and judges make decisions based on the probation report and the nature of the crime or crimes. The judge will know from the report what the defendant has done and his/her history, and if the person is guilty, the judge will determine whether he/she will go to trial and what the sentence will be.
“Everyone charged with a crime has the right to choose a jury or not,” Gibbons said. “Most people charged with a crime actually plead guilty — about 90 percent of them.”
It is important to note that while three strikes can present serious consequences for a felon, in the interest of justice, a judge may dismiss a strike.
Is the three-strikes law causing a population explosion within many of our state prisons? Back in June of 2010, the California state prison population included 32,479 second-strikers and 8,647 third-strikers. Since “strike” sentences can by initiated by any felony conviction, a number of prisoners are serving lengthy life sentences for various nonviolent crimes like stolen property, petty theft and possession of a controlled substance. Since the law was passed in 1994, approximately 8,800 prisoners have been sentenced to life terms in California under the three-strikes law.
According Families to Amend California’s Three Strikes (FACTS), excessive incarceration in America is a problem, and California is leading the parade with locking up more people than ever, especially with additional “tough-on-crime” laws. The result? FACTS said we are experiencing a “prison-building boom and rapacious bargaining” by the prison guards union, with state penitentiaries becoming the fastest-growing major cost in the state budget. The concerns have continued with consequential cutbacks on school and university funding, and the state’s recurring budget crisis.
Prison overcrowding is another concern, with the 2011 United States Supreme Court ruling that California must reduce its imprisoned population to reinstate humane conditions. With a population of 156,000, the prison population was nearly double the system’s capacity.
Because of severe overcrowding, prisons in California have to set up bunks in the gymnasiums in order to house all of the inmates.
The Stanford Three Strikes Project claims that approximately 9,000 inmates have been incarcerated for their third-strike crimes, and more than 4,000 inmates are serving life sentences for nonviolent crimes. California’s Legislative Analyst’s Office estimates an average cost of $47,000 a year per inmate.
In his book Long Walk To Freedom, Nelson Mandela writes, “It is said that no one really knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” Because of overcrowding, inmates have continued to file lawsuits against prisons, claiming that prison overcrowding violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Along with overcrowding, there are other conditions that the courts have focused on, such as sanitation, safety and medical care provided by the correctional facility. Each prison is governed by either the federal government or the individual state, and guided by the American Correctional Association (ACA). For more than 135 years, the ACA has been the acknowledged authority in establishing measurable standards in prison supervision and providing certification of facilities after a scrupulous audit and review of proof of practice for conformity.
In California, three prisons began the process of seeking accreditation from the ACA: The California State Prison – Sacramento, Central California Women’s Facility, and California State Prison – Solano. All three prisons met all 61 of the mandatory requirements. California’s Department of Corrections and Rehabilitations (CDCR) intends to pursue accreditation for all of its facilities. The audits are scheduled to begin in February 2013.
“The accreditation of all CDCR facilities will ensure we achieve our goal of modeling correctional leadership and complying with national best practices,” said CDCR Undersecretary Terri McDonald.
With some of the largest correctional institutions in America, there is no doubt that we have woven a tangled web here in California, and now realignment will move tens of thousands of prisoners who are considered low risk into county jails. If an inmate is on good behavior, he or she will be given the chance to serve only half of his or her sentence as opposed to the required two-thirds.
According to FACTS, “Inmates already doing time in a state prison will stay there, but since October, anybody in California who commits a new crime that is non-serious, nonviolent and nonsexual (or “non-non-non”) has been sent to a county jail instead of prison.”
A study by the California Department of Corrections found that third-strikers jailed for non-serious, nonviolent crimes were the least dangerous inmates. According to Romano, “Giving them a way out of jail would leave more room for higher-risk inmates.”
Has the three-strikes law actually discouraged crime? Based on Parker’s study, The Los Angeles Times said the law is “costly and ineffective” and further claimed that it has “done nothing to deter crime despite expanding the state’s prison population.” The former state parole chairman, Assemblyman Jim Nielsen (R-Gerber), disagreed with the study’s findings and believes the three-strikes law has been successful.
Many of those who oppose the reformed three-strikes law are concerned with issues like violating the Eighth Amendment to the Constitution, criminals being allowed to plea-bargain their first two convictions, the law interfering with the flexibility of the courts and the judges, and the law adding more criminals to an overcrowded and expensive prison system.
Those in favor of the amendment believe it will address a flawed judicial system, where too many nonviolent and non-serious offenders stay in prison. The law offers an effectual deterrent after a second conviction, and the law applies only to three convictions, not marginal cases. Usually, when the three strikes law is applied, it affects those who have actually committed more than three crimes.
In its purest form, the three-strikes law is primarily about deterrence. When this law first came into play, it was a response to several high-profile murders committed by ex-felons. The most notorious case was the kidnapping and strangling of 12-year-old Polly Klaas in 1993. With current issues like overcrowding and the high cost of housing an inmate, it seems as though a modification is in order. Last month a Field Poll was taken in California addressing its prison-overcrowding problem. The poll confirmed that 79 percent of those surveyed believed the matter to be serious. According to the Committee for Three Strikes Reform, “Most California voters see a court order to reduce the state prison population by 30,000 inmates as a serious problem, and nearly three out of four say it’s time to revamp the state’s three-strikes law.”
Violent and serious felonies according to California statutes
Murder or manslaughter.
Rape by force, violence, duress, menace or fear of immediate bodily injury on the victim or another person.
Oral copulation by force, violence, duress, menace or fear of immediate bodily injury on the victim or another person.
Lewd act on a child.
Any felony punishable by death or life sentence.
Any felony resulting in great bodily injury or in which a firearm was used.
Robbery of an inhabited dwelling, vessel or trailer coach in which a deadly or dangerous weapon was used.
Arson that causes great bodily injury.
Penetration by a foreign object.
Explosion with intent to commit murder.
Out-of-state kidnapping transported to California.
Continuous sexual abuse of a child.
Murder or involuntary manslaughter.
Sodomy by force, violence, duress, menace or fear of immediate bodily injury on the victim or another person.
Oral copulation by force, violence, duress, menace or fear of immediate bodily injury on the victim or another person.
Lewd or lascivious act on a child under the age of 14 years.
Any felony punishable by death or imprisonment for life.
Any other felony in which the defendant personally inflicts great bodily injury on any person or personally uses a firearm.
Assault with intent to commit rape or robbery.
Assault with a deadly weapon or instrument on a peace officer.
Assault by a life prisoner on a non-inmate.
Assault with a deadly weapon by an inmate.
Exploding a destructive device or any explosive with intent to injure.
Exploding a destructive device or any explosive causing great bodily injury or mayhem.
Exploding a destructive device or any explosive with intent to murder.
Burglary of an inhabited dwelling, house or trailer coach as defined by the Vehicle Code or inhabited portion of any other building.
Robbery or bank robbery.
Holding of a hostage by a person confined in a state prison.
Attempt to commit a felony punishable by death or life imprisonment.
Any felony in which the defendant personally used a dangerous or deadly weapon selling, furnishing, administering, giving or offering to sell, furnish administer or give to a minor, heroin, cocaine, phencyclidine (PCP), a methamphetamine-related drug, or a precursor of methamphetamine.
Any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
Grand theft involving a firearm.
Any attempt to commit a crime listed in this subdivision other than an assault.
Continuous sexual abuse of a child.
Taken from www.threestrikes.org/tscrimes.html.