New America Media

Supporters of Proposition 36 are optimistic that changing attitudes toward prison reform, coupled with economic considerations, will have Californians voting in favor of tempering their state’s controversial repeat offender law, known as “Three Strikes and You’re Out,” in the upcoming November election.

“Popular support has always been high for reforming Three Strikes,” says Prop. 36 advocate Geri Silva, director and co-founder of the Los Angeles-based Families to Amend California’s Three Strikes. “People realize that sending someone to prison for life for stealing a donut is absurd.”

Backers of Prop.36 had no trouble gathering the 504,760 signatures required by law to get their measure on the state ballot – about 800,000 people signed the petition — and a recent statewide survey conducted by Pepperdine University’s policy school shows 78.1 percent of likely voters supporting it.

The sense of urgency among voters to reform Three Strikes, suggests Silva, can be attributed to prison overcrowding and soaring state spending on incarceration in the midst of a historic budget crisis.

The political climate in California and public attitudes toward prison reform were very different in 1994 when the Three Strikes Initiative, Proposition 184, passed in a landslide with 72 percent of the popular vote. The initiative benefited in part from public fear and anger over the highly publicized kidnapping, rape and murder of 12 year-old Polly Klaas the previous year.

Proposition 184 imposed a mandatory 25 years to life prison sentence for anyone in the state convicted of a third felony, including non-violent offenses like drug possession and theft.

Today, twenty-six other states have similar sentencing laws on the books, but California’s Three Strikes law is widely considered one of the most severe.

In one infamous 1995 case, Jerry DeWayne Williams received a sentence of 25 years to life for snatching a slice of pizza from a group of kids. Although Williams later convinced a judge to reduce his sentence to five years, the case became a flashpoint for prison reform advocates seeking to characterize Three Strikes as absurd.

While proponents of Three Strikes argue the intent is to keep murderers, rapists and child molesters behind bars, today roughly 4,000 inmates serving mandatory life sentences in California were convicted for nonviolent offenses.

Today, 18 years after Three Strikes was enacted, public perception of the law appears to have shifted. A Field Poll conducted last year found widespread disapproval of Three Strikes in its current form — 74 percent of voters polled were in favor of changing Three Strikes and giving judges and juries more discretion in sentencing.

“People realize that the result of the current Three Strikes law isn’t what they voted for,” says Dan Newman, strategist for the 3 Strikes Reform Act campaign.

Proposition 36 would amend Three Strikes by imposing a 25 years to life sentence only if the third conviction is for a serious or violent felony.

The mandatory 25 to life sentence would still be invoked, however, for any third felony conviction if the individual also has a previous conviction for murder, rape or child molestation.

Under Prop.36, those with two strikes would be sentenced to twice the usual time for their third conviction for a non-serious felony, in lieu of the life sentence. Some 3,000 California inmates currently serving a 25 to life term for non-serious or nonviolent third strikes would become eligible to petition judges for re-sentencing, if the measure is approved.

A 2011 California Department of Corrections report showed 40,998 Californians were in prison for offenses classified as “srikes.” Of these, 8,727 were for third strikes, but an estimated 40 percent of the third strikes were for nonviolent offenses.

The fair application of Three Strikes has also been called into question. Ten years after passage of the law, 45 percent of all inmates in California serving life sentences under the Three Strikes law were African American and about 30 percent were Latino, according to a Justice Policy Institute study.

Supporters of Prop.36 believe the economy will be a big factor in how people vote this November. California spends an average of $46,700 per inmate annually, according to a Legislative Analysts Office report released last year.

The current third-strike population will cost the state about $10 billion dollars over the next 25 years, says a Center on Juvenile and Criminal Justice study. Meanwhile, proponents of Prop.36 say the measure could save the state up to $100 million a year in reduced prison costs.

Prop.36 is not the first measure that seeks to lessen the impact of Three Strikes — its predecessor, 2004’s Proposition 66, lost by a slim margin with 52.7 percent voting against – but its supporters believe this time will be different.

“Prop.36 itself is better written and clearer about going after the super-criminals,” says Newman.

The care taken in crafting the language of Prop.36 is clearly a result of what happened in 1994, when opponents of Prop.66 zeroed in on ambiguities in the ill-fated proposition and boldly claimed that it would release 26,000 murderers and rapists into the streets, which Silva says was a “ridiculous and false claim.”

Governor Arnold Schwarzenegger used the claims to attack the measure in last-minute television ads, and the anti-Prop.66 campaign also garnered support from former governors, including Democrats Jerry Brown and Gray Davis.
Not wishing to see history repeat itself, lawyers from Stanford Law School crafted the language of Prop.36, together with the NAACP Legal Defense and Educational Fund.

Because the measure is now written more clearly, explains Newman, “a broader, bipartisan coalition is behind Prop.36 this time.”

Endorsers of Prop.36 include liberal philanthropist George Soros, conservative anti-tax advocate Grover Norquist, and a number of law enforcement officials. Investor David Mills gave $953,000 to the campaign, and Soros added $500,000 to the Prop.36 war chest – nearly $2 million to date.

So far, the opposition has raised $100,000, all coming from the Peace Officers Research Association of California, Political Issues Committee.

Three Strikes advocate Mike Reynolds, author of the 1994’s Prop.184, contends that the law deters crime and should not be modified. Crime in the state has declined by 50 percent “in every category” since the law’s passage, he states in a recent San Francisco Chronicle op-ed.

Critics point out crime had been declining even prior to Three Strikes. Moreover, a study by the Justice Policy Institute found that California’s declining crime rates were no different from states without a Three Strikes law. And counties that used the law the least (San Francisco and Contra Costa) experienced slightly larger reductions in violent crime compared with counties that used it the most (Kern and Sacramento), according to the Center on Juvenile and Criminal Justice.

Three Strikes’ dubious impact on crime prevention, in addition to the steep cost of implementing it, has swayed even some law-and-order conservatives to support its amendment. One is Los Angeles District Attorney Steve Cooley, who was among those opposed to changing Three Strikes in 2004. Today, he is a vocal supporter of Prop. 36.

Although unsure of what the opposition has up their sleeve as the November election draws near, Prop. 36 campaigners are confident they have a better chance of winning this time around.

“Prop. 36 is a conservative measure,” says Silva. “Unlike in 2004, this measure has fewer, if any, vulnerable attack points for the opposition to use.”