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Crimina law in the election: CA eases up on habitual offender law

Tim Powers

Law Office of Tim Powers


Proposition 36: Voters overwhelmingly ease Three Strikes law

By Tracey Kaplan

Posted: 11/06/2012 08:30:20 PM PST
Updated: 11/07/2012 03:02:32 AM PST

Eighteen years after Californians overwhelmingly approved the country's toughest Three Strikes law, they did an about-face Tuesday, easing the habitual-offender statute in a vote likely to influence criminal justice policies nationwide.

"Tonight's vote on Proposition 36 sends a powerful message to policymakers in California and across the country that taxpayers are ready for a new direction in criminal justice," said Adam Gelb, director of the Pew Center on the States' Public Safety Performance Project. "States that have already made some changes to their sentencing laws may be inspired to take a second look, and states that haven't made significant changes yet may start.

About half the states already have undertaken significant reforms in the past five years to reduce prison sentences and create alternatives to long periods of incarceration. But the changes were passed by legislators emboldened by positive polls.

"Polls are one thing — this is an actual vote," Gelb said.

The measure, which passed handily by more than a 20 percentage-point margin, revises the Three Strikes Law to impose a life sentence only under two circumstances — when the new felony conviction is "serious or violent," or for a minor felony crime if the perpetrator is a murderer, rapist or child molester. Under the existing Three Strikes law, only California, out of 24 states with similar laws, allows the third strike to be any felony.

As a result,

offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen for food, or forging a check for $146 at Nordstrom have been sentenced to life in prison.

"The historic passage of Prop. 36 overturns the long-held conventional wisdom that it's impossible to fix our most extreme and unjust crime laws," said David Mills, a Stanford law school professor who helped draft the measure with fellow professor Michael Romano. "My most sincere hope is that this victory serves as a turning point that inspires others to advocate for more sane and humane criminal justice policies."

The initiative took a commanding lead from the first.

"It's pretty clear that it's going to pass," said the leading opponent, Fresno wedding photographer Mike Reynolds, shortly after the polls closed. Reynolds helped draft the 1994 "Three Strikes and You're Out" law after his 18-year-old daughter, Kimber, was killed in 1992.

He blamed state officials for the ballot measure's wording, which he contended "gave the illusion" that the proposition was tougher on repeat offenders than it actually is.

Reynolds said the passage of Proposition 36 endangers public safety, and "when crime rates go up as a result of this," voters will want to restore the original 1994 law. If crimes rates don't go up, then "I was wrong and they were right," he said.

Proposition 36, crafted by a group of Stanford University law professors in partnership with the New York-based NAACP Legal Defense Fund, will allow only certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any third felony offense, while restricting the third strike to a serious or violent felony for everyone else. Forty-five percent of third-strikers are African-American.

The initiative also includes a provision that will pave the way for about 3,000 three-strikers now serving life sentences for relatively minor crimes to apply to a judge for early release or a shorter term.

According to an analysis by this newspaper, the only other measures approved by voters since 1912 to curb the power of the state's criminal justice system involved due process rights for the accused in 1934; the right to the assistance of an attorney in 1972; legalization of medical marijuana in 1996; and drug treatment rather than incarceration for certain offenders in 2000.

Polls consistently showed voters overwhelmingly supported the measure.

But most law enforcement groups opposed it, including the California District Attorneys Association, the Police Chiefs Association and California State Sheriffs' Association.

Opponents argued that the Three Strikes law has helped lower the crime rate by locking up habitual offenders. They also point out that not every offender who commits a minor crime as their third strike gets sent away for life because judges have the discretion to "strike a strike" in those cases.

However, proponents note that as a result the law is unevenly applied in California, with judges in more conservative counties like Kern locking up offenders for life who would merely get double the usual sentence in Los Angeles County and the Bay Area.

Only three district attorneys — Santa Clara County's Jeff Rosen and San Francisco's George Gascon, both of whom are Democrats, and Republican Steve Cooley of Los Angeles County — supported the measure. But they were elected in counties with 40 percent of the state's population.

Eight years ago, Proposition 66, a more far-reaching attempt to weaken the Three Strikes Law, narrowly lost.

Proposition 36 backers mounted a two-pronged campaign, arguing the current law is unfair and a waste of taxpayer dollars. The funding came primarily from liberal billionaire George Soros and Stanford professor Mills, who is also an investor. But the initiative won key support from Right on Crime, a conservative criminal justice reform movement whose signatories include anti-tax advocate Grover Norquist, Jeb Bush and Newt Gingrich.

California is now under a federal court order to relieve prison overcrowding, a predicament that the proponents used to bolster their proposal to send fewer people to prison for life. The state's crime rate also has dropped to 1960s levels. Voters' attention this time is more focused on economic worries and the state's multibillion-dollar deficit, making the spiraling cost of the justice system more of a concern, according to polls.

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If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County criminal case or arrest in Denton County, contact the offices of Tim Powers today. There is no charge or obligation for the initial consultation. 940.580.2899.

*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.