By John Diaz
The "three strikes and you're out" law passed in the aftermath of the awful 1993 kidnapping and murder of 12-year-old Polly Klaas was advertised as a way to keep violent predators in prison. But the initiative passed by California voters was laden with unintended consequences - and cannot be changed in any significant way without another statewide vote. More than half of the third "strikes" that have triggered a 25-to-life sentence involve neither serious nor violent felonies. Even shoplifting can be escalated to a third-strike felony - bringing life imprisonment - for those with prior convictions of petty theft.
The law may be absurd, but it's proving difficult to change, as Gloria Romero knows all too well.
Prisons were built for the Richard Allen Davises of the world. Every cent spent keeping folks with his record of unrelenting violence segregated from the rest of society is well spent.
But the "three strikes" law has also led overzealous prosecutors, particularly in Kern and Riverside counties, to seek and receive life sentences against sad-sack or drug-addicted offenders whose crimes would otherwise merit probation or short incarcerations.
Then-Sen. Romero was working with Los Angeles District Attorney Steve Cooley in 2006 to curb the costly injustices of the "three strikes" law when she ran into resistance from fellow Senate Democrats. Their issue was not with the substance of her Senate Bill 1642, which would have asked voters to require that the third strike be either a violent or serious felony and would have eliminated certain lower-level crimes (petty theft, possession of small quantities of drugs) as strikes. Their worry was with the political consequences for two Democratic senators in tough primary races for lieutenant governor (Jackie Speier) and secretary of state (Debra Bowen).
"They did not want to be painted as 'soft on crime,' " said Romero, who described the blowback from her Democratic colleagues as "full-blown assaults." Cooley said he was "persona non grata" with some of his fellow district attorneys for several years because of his efforts on three-strikes reform.
SB1642 died in the Senate.
About 8,700 California inmates are now serving life sentences under the "three strikes" law. One of the most potent arguments for not tampering with the law is that it has kept down crime. In the broadest sense, it's possible to argue that locking up people with criminal records for the rest of their lives will reduce crime.
Let there be no doubt: The state is a safer place because some of them will be tucked into their cell beds until well into senior citizenship. But their danger to society is anything but universal.
Violent crime rates are at half-century lows almost everywhere, including the state of New York, which does not have a "three strikes" law. Criminologists have found no meaningful statistical distinctions between California counties that aggressively pursue "three strikes" sentences and those that do not.
This law comes with a considerable price, both in dollars and in the equity of our system of justice. California is the only state among the 23 that have "three strikes" laws that does not require the life-sentence-triggering offense to be a violent or serious felony.
"Worst criminal law in the country," said Michael Romano, a Stanford law professor whose students have been working on behalf of "three strikes" inmates. One of them stole two faucets from Home Depot as his third strike; another was caught in possession of a stolen cell phone; another tried to steal a car radio on the day the "three strikes" law was signed. Each is serving a life term, at a cost of more than $40,000 a year to taxpayers, with the tab certain to rise greatly as inmates age and health costs rise.
The U.S. Supreme Court fell one vote short of declaring the law to be cruel and unusual punishment in the 2003 ruling against Leandro Andrade, whose third strike was the theft of nine videotapes (combined value: $153) from two Kmart stores. Because Andrade had previous convictions of petty theft (defined as less than $400) it was classified a felony.
One of the "cruel ironies" of the Andrade case was that if his previous crimes had been rape and manslaughter, the maximum sentence he could have received for the videotape thefts would have been one year in jail, noted Erwin Chemerinsky, the UC Irvine School of Law dean who argued Andrade's case before the high court.
Since the 1960s, sentencing law has been a "one-way ratchet" upward, Chemerinsky noted during a symposium on the "three strikes" law in Los Angeles last week.
At some point, Californians need to reassess the sanity and efficacy of allegedly tough-on-crime laws. The existence of a $20 billion-plus deficit and overcrowding conditions that are inviting federal court intervention should be strikes one and two against an initiative that went too far and, too often, in curiously wrong directions.
April 1993: Assembly Public Safety Committee rejects a "three strikes" law crafted in response to the killing of 18-year-old Kimber Reynolds in Fresno by two repeat offenders. Outrage over bill's defeat leads to initiative drive.
October 1993: While petitions for "three strikes" initiative are circulating, knife-wielding career criminal Richard Allen Davis, right, kidnaps 12-year-old Polly Klaas from her Petaluma home. She is sexually assaulted and strangled. Davis had served only half of his most recent sentence (16 years for kidnapping, assault, burglary) and was wanted on a parole violation. Proposition 184 becomes the fastest-qualifying initiative in state history.
March 1994: Gov. Pete Wilson signs AB971, a "three strikes" law that passed by huge margins in the Assembly and Senate. Initiative backers are undeterred: They want to lock in enhanced punishments with an initiative that could not be weakened by legislators.
November 1994: California voters approve Prop. 184, 72-28 percent.
August 1996: Davis is sentenced to death. Today, he remains on San Quentin's Death Row.
March 2003: U.S. Supreme Court upholds California's "three strikes" law on a 5-4 vote.
November 2004: Prop. 66, which would have required that the "third strike" be a serious or violent felony, is rejected by California voters after a late surge of advertising warned that it would result in the release of thousands of dangerous convicts.