By Neel Thakkar
Faculty and students involved with Stanford Law School’s Three Strikes Project have drafted a ballot initiative that would revise California’s controversial Three Strikes Law. Pending approval by the Office of the State Attorney General and the collection of 500,000 signatures, the proposal would appear on the state ballot in 2012.
Under the 17-year-old law, persons convicted of felonies can be sentenced to up to 25 years of life in prison if they have been previously convicted of two serious or violent felonies.
According to Michael Romano, the director of the Three Strikes Project, the law has sentenced people to life imprisonment for relatively small crimes, such as drug possession or petty theft.
“That is not a way to run a state or a criminal justice policy,” Romano said. “A life sentence for petty theft or drug possession is excessive.
Though the Three Strikes Project’s usual work is to argue on behalf of clients given third strikes for non-serious, non-violent crimes, it began work on the ballot initiative about a year ago after being approached by the NAACP Legal Defense Fund.
The initiative would restrict application of the third strike to serious or violent felonies only, which Romano said is meant to restore the law to its original intent.
If the initiative passes, over 3,000 of the roughly 8,800 inmates currently jailed for third-strike offenses could go back to court for a new sentence, according to Malaina Freedman, a law student who works with Romano.
California’s Three Strikes Law was passed in 1994, partly in reaction to a string of gruesome murders committed by ex-felons. California is one of 24 states with similar laws, but is “widely regarded as the harshest non-capital sentencing law” in the nation, according to Romano.
Still, the original law retains some staunch supporters. Mike Reynolds helped draft it after his daughter Kimber was murdered in 1992.
According to Reynolds, the state saw a 37 percent drop in crime in the first four years after the law was implemented. He said he also believes the law has helped contribute to a 40-year low in crime rates.
“While all states have seen drops,” Reynolds said, “none have as much as in California.”
Although the proposed revision would not affect third-strikers jailed for serious or violent crimes, Reynolds said he believes letting any “career criminals” out of jail would be disastrous.
“If criminals are on the street, especially repeat offenders, what are they going to be doing?” he asked.
The debate over the Three Strikes Law is part of a larger debate over the future of California’s prison system.
Last May, the Supreme Court ruled in a 5-4 decision that the state’s prisons were overcrowded enough to constitute cruel and unusual punishment. At one point, the prison population was at 156,000 – almost double the system’s capacity.
As a result, California has begun a complicated process called realignment, in which it will move tens of thousands of prisoners deemed low-risk to county jails. Inmates will also be given the opportunity to serve only half their sentence if they behave well, as opposed to the former two-thirds requirement.
Reynolds said he believes the combination of the realignment program and a reformed Three Strikes Law would be “overload,” and hard for the public to swallow.
However, Romano noted that a study by the California Department of Corrections found that third-strikers jailed for non-serious, non-violent crimes were the least dangerous inmates. Giving them a way out of jail would leave more room for higher-risk inmates, Romano said.
There have been past efforts at reforming the law, the most notable of which came in 2004.
That attempt, Proposition 66, was much more ambitious – altering the second and third strike and redefining burglary – and received no support from prominent law enforcement officers or elected officials. The measure failed by a substantial margin.
Calling the 2004 effort “not well-conceived,” Romano said the Stanford team’s approach is much simpler.
He said he expects significant support from law enforcement and elected officials in the coming months, although there have not been any such announcements so far.
An independent poll conducted in June found that 74 percent of registered voters also agree with altering the Three Strikes Law.
But such support is tenuous. The 2004 proposition also enjoyed support from a healthy majority of voters until the last month of campaigning, when it sank under attacks from district attorneys and elected officials.
Reynolds said he believes the vote will essentially be a referendum on the success of the Three Strikes Law.
“Laws come and laws go,” he said. “The question is which ones work and which ones don’t.”