Three-Strikes Debate Centers on Early-Outs

Ten years after voters overwhelmingly approved the state’s tough three-strikes sentencing law, Californians seem poised to sharply scale it back and open the door for thousands of inmates to be released early.

How many thousands remains in dispute.

Supporters of the initiative, citing a judge’s ruling and the state’s nonpartisan legislative analyst, say about 4,000 inmates would be eligible to have their sentences reviewed. Prosecutors say criminal procedure experts tell them that 26,000 or more could leave prison early.

The ballot measure, Proposition 66, has been leading in several polls -- most recently a Times survey showing it ahead by nearly 3 to 1 -- despite opposition from Gov. Arnold Schwarzenegger and the state’s district attorneys.

Schwarzenegger on Wednesday stepped up the fight against the measure in an appearance at an Ontario hotel where opponents emphasized their claim that 26,000 prisoners would get out early under the new law.

“Because Proposition 66 is retroactive, thousands of convicted killers, rapists and other violent offenders would be released,” the governor said, later hugging tearful crime victims who said they feared that the men who hurt them or their families would be released.

Outside the hotel meeting hall, supporters of the measure waited to counter the governor’s statements and called the 26,000 figure cited by opponents “false.”

They said the measure would correct what many critics see as the worst extreme of the current law -- cases in which people were put in prison for life for a relatively minor third crime.

Of the roughly two dozen states with three-strike laws on the books, California is the only one that allows lesser felonies to trigger life sentences.

Supporters of the proposition have publicized cases like that of Leandro Andrade, a drug addict and father of three who stole $153 worth of children’s videotapes from Kmart and received a life sentence with no possibility of parole for 50 years. His sentence was upheld by the U.S. Supreme Court last year.

Under the current three-strikes law, a defendant convicted of a third felony can be sentenced to 25 years to life. Whether the third felony is serious or violent does not matter as long as the previous two convictions were for serious or violent felonies.

The 1994 law also raised punishment for “second-strikers” -- providing that the usual sentence be doubled and that at least 80% of the time be served before parole could be considered.

Backers of Proposition 66 say that Californians, who approved three strikes by 71% of the vote in 1994 after the kidnapping and slaying of 12-year-old Polly Klaas, never intended such long sentences for lesser felonies.

To eliminate cases like Andrade’s, the proposition would make several changes in the law. It would require that only serious or violent felonies, as defined by the criminal code, be counted as strikes. In addition, eight crimes would be removed from the list of serious and violent felonies, including residential burglary of unoccupied homes and participating in felonies committed by a street gang.

If Proposition 66 passes, the changes would affect not only future defendants, but also inmates now serving time under the three-strikes law. The disagreement is over how many of the 35,000 inmates sentenced under three strikes -- about 21% of the state’s prison population -- would qualify for new sentences.

The legislative analyst’s office agrees with supporters of the ballot measure that roughly 4,000 inmates could be resentenced.

In August, a Sacramento County Superior Court judge chastised prosecutors and other opponents of Proposition 66 for what he called a “patently false” ballot argument stating that 26,000 felons would be released if the measure passed.

The only inmates eligible to request resentencing would be those serving life sentences for a nonserious, nonviolent felony, Judge Raymond Cadei said.

But his ruling is not the last word, and prosecutors say thousands of additional inmates, including many now in prison for second strikes, could demand review of their sentences.

Much of the disagreement over the numbers hinges on what opponents and some legal observers say is ambiguous language in the proposition. If the measure passed, legal scholars say, the final answer would not be known until the law was challenged.

“Undoubtedly it’s going to play out in the courts,” said Erwin Chemerinsky, a Duke University law professor and frequent critic of the current three-strikes law.

The issues surrounding the proposition “may have to be answered by the California Supreme Court,” said Franklin Zimring, a professor of law at UC Berkeley.

The potential for extensive legal wrangling illustrates one of the problems with writing laws by initiative.

Los Angeles County Dist. Atty. Steve Cooley, who has strongly criticized the current law but opposes Proposition 66, said he believed state legislators had failed the public by not fixing three strikes themselves.

Because the law was approved by voters, any changes would require a two-thirds vote by the Legislature, and lawmakers have never come close to having such a majority.

“They’re afraid of their own shadows,” Cooley said of state lawmakers. Three strikes is “a good law, but because they didn’t fine-tune it, now it’s going to be a disaster,” he said. “The Legislature has shown a complete inability to act.”

Changing the three-strikes law has long been a priority for civil rights and civil liberties organizations. But their efforts had gotten nowhere until Jerry Keenan, owner of an insurance brokerage in Sacramento, got involved.

Keenan’s son, Richard, is serving time in Folsom State Prison for a car accident in 1999 that left two of his passengers dead and a third injured. Richard Keenan, then 21, had been drinking and smoking pot and was driving on a suspended license.

Jerry Keenan contributed $1.9 million to help put Proposition 66 on the ballot -- the lion’s share of the nearly $2.5 million raised for the campaign.

Richard Keenan could benefit if the measure passes. One of the charges to which he pleaded guilty was inflicting grave bodily injury, currently classified as a serious or violent felony.

Proposition 66 would change the law so that only intentional infliction of grave bodily injury would be considered a serious felony. Because of that, if the measure passed, Keenan could be eligible for release late this year. As it is, he is not scheduled to get out of prison until September 2007.

Jerry Keenan said Wednesday he was like many Californians who voted for the original law but had since come to believe it went too far. He and his wife are hopeful that a revised law will help his son but are resigned to the possibility that it may not, he said.

“It was still the right thing to do -- win or lose -- whether this affects Richard or not,” Keenan said in a telephone interview. “I believe you do the time for the crime, but I don’t believe you give one person life and another person two years for the same crime. It just doesn’t sit right with me.”

Keenan’s financial backing of the initiative infuriates many prosecutors, who say that to spare his son about two years behind bars, he would put public safety at risk.

Cooley said his staff has told him that between 16,000 and 18,000 second- and third-strike felons from Los Angeles County could be resentenced.

“We aren’t doing this to exaggerate the consequences,” said Cooley, who acknowledged that the number is large in part because his predecessor, Gil Garcetti, used the three-strikes law frequently. “We are making the best guess of what the law says we must do.”

Among those likely to be freed early if Proposition 66 passed would be Rene Landa, who was sentenced in 1995 to 27 years to life for stealing a spare tire. Landa had two previous convictions for residential burglary, both of which might no longer be counted as strikes under a revised law. Since Landa has served far more time than he would have gotten without the three-strikes law, he would likely be released immediately.

Opponents of the measure say it also would help Kenneth Parnell, who was convicted in 1980 of kidnapping two boys and sexually assaulting one of them, Steven Staynor, over a seven-year period.

Parnell served five years for those crimes long before the three-strikes law was passed. He was paroled in 1985.

In 2003, when he was 71, Parnell was arrested for trying to purchase a young boy for $500. He was convicted of attempted child stealing, attempting to buy a human being and solicitation of kidnapping. Because each of those crimes was an attempted act, not a completed one, they were not defined as serious or violent felonies under three strikes.

But because Parnell already had been twice convicted of serious or violent felonies, he was sentenced to 25 years to life. If Proposition 66 passed, prosecutors said, his maximum sentence would be four years. With good-time credits, he could be eligible for release within weeks.

Prosecutors point to cases like Parnell’s and warn that the initiative would endanger the public.

Michael Vitiello, a professor at University of the Pacific’s McGeorge Law School in Sacramento, says that is an exaggeration.

“The problem is they are crying wolf,” said Vitiello, who testified at the August hearing in Sacramento for backers of Proposition 66. “They act like without three strikes, we don’t have criminal sentencing, and that’s hysteria.”

But Vitiello acknowledged that defense attorneys were likely to argue for a broader interpretation if the proposition passed.

Both sides agree that a revised law would allow new sentences for anyone serving time on a third strike that was never considered serious or violent -- such as check-kiting.

And they concur that passage would allow new sentences for those whose third-strike convictions were for crimes that Proposition 66 would remove from the list of violent or serious felonies.

But prosecutors argue that the proposition also would apply retroactively to all inmates convicted of crimes that would no longer count as strikes.

They cite the example of a person serving 25 years to life for a third strike involving a crime that would still be considered serious or violent, such as rape, which normally carries a maximum sentence of eight years.

Under the narrow interpretation of Proposition 66, that individual would remain in prison.

But, prosecutors ask, what if the person’s two previous strikes had been for crimes no longer considered serious or violent -- a convicted rapist whose two prior strikes were for burglaries of unoccupied houses, for example.

“He watches another guy with two rapes and then a burglary get out,” said Dave LaBahn, executive director of the California District Attorneys Assn. “He’s going to say, ‘I’m not as bad a rapist as the one you just sent home.’ ”

Kern County Dist. Atty. Ed Jagles, one of the most aggressive prosecutors in the state in his use of the three-strikes law, said he was convinced that in such cases, the inmate would have to be eligible for a new sentence.

“If what was a strike is no longer a strike, I think it’s beyond question that guy has to be resentenced,” he said. “If not, then a guy with less of a record could do more time, and that can’t possibly be constitutional.”

Proposition 66 allows prosecutors to bring new charges that they may not have pursued at trial if an inmate asks to be resentenced. Still, prosecutors say a large number of prisoners may already have served the maximum time allowed under Proposition 66 guidelines and would have to be released.

Jagles said about 1,500 second- and third-strike inmates from Kern County could be resentenced.

If the measure does pass and goes to court, both sides say the other would switch positions.

Prosecutors, who now say the measure’s language would cover too broad a range of felons, almost certainly “will take absolutely the opposite view if this passes,” Chemerinsky said.

But those who want the law changed, said Sacramento County Dist. Atty. Jan Scully, would argue upon passage that it covered the widest possible range of felons.

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The revisions

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Proposition 66 would remove eight felonies from the category of serious or violent crimes:

Attempted burglary

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Conspiracy to commit assault

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Nonresidential arson resulting in no significant injuries

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Threats to commit criminal acts that would result in significant personal injury

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Burglary of an unoccupied residence

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Interference with a trial witness without the use of force or threats and not in furtherance of a conspiracy

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Participation in felonies committed by a criminal street gang

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Unintentional infliction of significant personal injury while committing a felony

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The measure also would increase penalties for sex offenses where the victim was under the age of 14, providing for a 25-years-to-life sentence for a second felony conviction in such cases.

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Los Angeles Times