A pair of Stanford University law professors spent months this year writing ballot language to narrow, ever so slightly, California’s three strikes sentencing law.
The result is the "Three Strikes Reform Act of 2012" [PDF], which is now under legal review by the state attorney general’s office. It aims to remove courts’ authority to sentence convicts to 25 years to life in prison when their crimes have been neither violent nor serious.
At the same time, the initiative’s backers argue this measure will ensure dangerous criminals remain incarcerated.
By protecting one piece of the three strikes law (life sentences for violent offenders), the proponents hope California voters will agree to discard another piece (life sentences for minor crimes).
That transaction shows the initiative’s political vulnerability, said Arnold Steinberg, a Republican political strategist. “Their challenge at the margins is to prevent their effort from being seen as soft on crime,” he said.
Past efforts to change the three strikes law have failed that challenge. California’s law, enacted by voters in 1993, is the only law in the United States that allows convicts to receive a third strike for any new crime, including petty theft.
The initiative’s supporters intend to focus on the cost of long prison terms for minor crimes, said Dan Newman, a spokesman for the effort. Felons previously convicted of murder, rape and child molestation could continue to receive a third strike for any conviction.
“Frankly, it’s built to win,” Newman said. “It’s built so it restores what voters wanted when they voted for three strikes in the first place. And it does so in a way that allows us to put together a broad coalition of supporters.”
That coalition is still under construction, Newman said.
Supporters expect to begin collecting signatures next month to secure a spot on the November 2012 ballot.
Steinberg said the list of supporters has to include conservatives and law enforcement to convince voters that the measure won’t risk public safety.
“It cannot look like liberals from central casting,” he said.
In 2004, Proposition 66, a ballot measure that would have dramatically changed three strikes, was defeated after California prosecutors made a late media blitz characterizing it as a mass release of dangerous criminals. Numerous top state officials lined up against the measure, including former Gov. Arnold Schwarzenegger and Gov. Jerry Brown.
Prop. 66 would have required that a third “strike” be a serious or violent crime and reduced the number of offenses deemed serious under state law.
Pre-election polls showed Prop. 66 was likely to pass before opponents claimed the measure could result in the release of 26,000 felons. Steve Ipsen, head of the Association of Deputy District Attorneys, produced a four-page flier that listed 10 violent convicts who Ipsen contended would be “eligible for release” under the proposition.
The lineup included a man who had “cut dog’s head off,” the flier states.
The Stanford professors, David Mills and Michael Romano, kept that political attack in mind as they drafted the current initiative.
“Those criminals who committed heinous acts are singled out in the reform language to ensure they receive no benefit whatsoever,” Newman said.
Romano leads the Stanford Three Strikes Project, where law students work to reduce life sentences for convicts who received their strikes for minor offenses, like shoplifting or drug possession.
Ipsen, a prosecutor for the Los Angeles district attorney’s office, said he agrees that three strikes has resulted in some outsized prison sentences. However, he opposes altering the law, as it means reducing prosecutors’ discretion in how they charge their cases.
“It would be very unfortunate if that happened because I think discretion can be used properly,” Ipsen said. “It has been getting better.”
The law would not change for convicts receiving a second strike if voters approve the initiative.
There are more than 32,000 inmates with two strikes presently serving time in state prison, compared with about 8,800 with three strikes, according to California Department of Corrections and Rehabilitation data [PDF]. So-called “second-strikers” have their sentences doubled under the law.