Sunday, October 24, 2004

On balance, it serves justice

This editorial page has for years been critical of California 's "three strikes" law, passed by voter initiative in 1994, to a large extent in response to the brutal murder of Polly Klaas by a longtime criminal who probably should not have been released from prison. Does Proposition 66 on this November's ballot, which seeks to reform the law, purportedly to be more in line with what voters thought they were approving in 1994, do the job? Some plausible objections have been raised to it, but on balance we think it should be approved.

Proposition 184 in 1994 was part of a nationwide trend to use enhanced sentencing to put career criminals, especially violent criminals, behind bars and off the streets for longer periods of time. It requires that if a person has been previously convicted of a serious or violent felony and is convicted a second time of any new felony, the sentence will be twice the term otherwise required by law. If a person is convicted of a third felony (not just a serious or violent one), the sentence is 25 years to life.

California 's "three strikes" law is by far the most punitive in the country. Most states with "strikes" laws confine enhanced sentencing to serious or violent felonies, and some have a time limit for the "three strikes"to be operative, so a crime committed as a teen-ager doesn't get a person who commits another crime in his 40s or 50s put away for life.

 Whether the "three strikes" law has led to reduced crime is subject to debate. No doubt some people who would have committed crimes did not do so because they were in prison under enhanced sentencing. But crime, which had been rising nationwide through most of the 1980s, began to decline nationwide in the early 1990s; indeed, the trend line started down in California just before Prop. 184 was passed.

Criminologists, when you push them, acknowledge that while there are plenty of theories, many of them plausible, nobody really knows why crime rates rise and fall.

Crime rates seem to have declined more in California than in some other states (although they've been edging up recently). But the declines in San Francisco (where prosecutors seldom invoke "three strikes") and Los Angeles (where they often do) have been comparable.

Prop. 66 would reserve enhanced sentencing for serious or violent felonies, and it narrows the definition of serious felonies to exclude attempted burglary, burglary of an unoccupied residence (though not when someone is home), conspiracy to commit assault and a few others. It enhances sentencing for sex offenses against children. And it would allow current "third strikers" convicted of nonviolent or nonserious crimes a rehearing, after which their sentence could be reduced or they could be released.

It is this last provision that has caused most of the controversy. According to the non-partisan legislative analyst's report, there are about 35,000 inmates in California prisons for second strikes, and about 7,000 third-strikers, 4,300 for nonviolent felonies.

Opponents of Prop. 66 claimed some 26,000 dangerous criminals would be released.

 In July, a Superior Court judge, in a proceeding challenging proposed ballot arguments, called that "patently false" and "mathematically impossible." The opponents had to change the wording from a flat statement that 26,000 felons would be released to "The California District Attorneys Association estimates Proposition 66 will release as many as 26,000 ... ." (emphasis added).

 The Prop. 66 resentencing provisions apply only to third- strikers incarcerated for nonviolent, nonserious felonies, and they are only guaranteed a hearing - at which prosecutors could refile more serious charges that might bring a longer sentence - not immediate release. That means about 4,300 people could eventually be released.

Under Prop. 66, second-strikers are not entitled to resentencing, but it is possible some inmates will find lawyers willing to apply for one. Might some courts respond to the argument that if third-strikers get a new hearing for nonviolent crimes, second-strikers should get one too? It's hard to predict, but Prop. 66 doesn't authorize it.

Are there inmates whose third strike was nonviolent but who are nonetheless dangerous thugs whose release many of us would regret who will be released? Probably.

More importantly, however, people who should not be in for life - there really are people who stole a few golf clubs or less than $200 worth of videotapes serving life on the taxpayers' dime - will get a chance at punishment that truly fits the crime.

The estimated financial effects of Prop. 66 are mostly positive. Opponents note that resentencing hearings will cost money, which is true enough. The legislative analyst estimates these costs, plus the possible additional costs of those who are released being arrested and tried for new crimes, at "a few tens of millions of dollars."

But the legislative analyst estimates that the savings from putting fewer people in prison for longer stretches would be "potentially tens of millions of dollars in the first couple of years, growing to as much as several hundred millions of dollars in ongoing savings when the full impact of the measure isrealized."

Prop. 66 may not be perfect, but it reforms a law that needs reform. It doesn't make sense for taxpayers to pay for 357 people convicted of petty theft, 235 of vehicle theft, 69 of forgery and 678 of drug possession to be in prison for life.

Vote Yes on Prop. 66.

Copyright 2004 The Orange County Register