Rehabilitate Three-Strikes Law ... but Do It the Right Way

There is a broadening consensus that includes prominent law enforcement officials that California’s three-strikes law desperately needs to be fixed. Intended to put repeat violent offenders behind bars for 25 years to life, the law has also swelled the prison population by incarcerating nonviolent criminals for decades. More than 350 men and women have been sent to prison for 25 years to life for such crimes as shoplifting a pair of sneakers or a bottle of Tylenol, or lying on a driver’s license application. More than 670 others have received the same harsh sentence for possession of a small amount of drugs. All told, nearly 57% of California’s roughly 7,000 prisoners sentenced under the law committed a nonviolent third-strike crime.

Now a ballot initiative to reform the law has surfaced. Among other things, it would require a third strike to be a “serious” or violent crime and eliminate several crimes that now count as strikes. It already has gathered nearly twice as many signatures as needed and will almost surely qualify for the November ballot.

The injustice of the current three-strikes law is so glaring, its application so arbitrary, that I will happily vote for the proposition -- despite my concern that the measure would face a bitter, uphill and potentially fatal battle because of its flaws. Defeat could doom real, sustainable and achievable reform of the law’s mandatory sentencing guidelines and derail a growing recognition that rehabilitation and reentry programs must play a far bigger role in the state’s criminal justice system than they do today.

Although justice demands that reform be applied retroactively, critics will point out that by making the initiative retroactive, its authors also created its central weakness. As many as 33,000 of the state’s 160,000 prisoners could be eligible for resentencing or release over the next several years if the measure passed. The vast majority would have received little or no rehabilitative services while in prison and, as things now stand, would receive little or no guidance on reentering society and finding a job. They would join the roughly 100 convicts paroled daily in Los Angeles County -- more than any other county in America.

It’s easy to imagine the kind of television ads the initiative’s opponents would run. Contra Costa Deputy Dist. Atty. L. Douglas Pipes has given a hint of their tone. In an in-house analysis of the planned proposition, he wrote: “The passage ... of this initiative would constitute the most serious and damaging rollback of California’s efforts to punish and incarcerate serious and violent felons in more than 30 years.... Defeat of this initiative, therefore, should be the single highest priority of law enforcement.”

Reform advocates can counter such an offensive by developing and lobbying for legislation that would provide reentry services for the men and women released under the initiative. It would be an extremely difficult task in light of next year’s estimated budget deficit of $14 billion. But the legislation could be sold for what it is: smart, effective, long-term crime prevention, as well as a sound financial investment.

The Department of Corrections has already developed successful reentry programs for drug offenders and the mentally ill. And empirical data, though largely ignored, indicate that long-term drug treatment in therapeutic communities based on the principles of Alcoholics Anonymous works when combined with community support and rehabilitative services. The Corrections Department knows this to be true for the incarcerated as well. Currently, nearly 10,000 of the state’s 160,000 prisoners receive drug treatment. In 1999, the figure was about 400.

Gov. Arnold Schwarzenegger and politicians will feel intense pressure from some of the most powerful political players in the state to oppose the proposition, and do nothing. They include the California Correctional Peace Officers Assn., the National Rifle Assn., district attorney associations, police unions and the multitude of special interests with a stake in continued growth of the state’s criminal justice industry. Beating back that kind of highly organized, well-financed opposition will be a formidable task for reform’s supporters.

The best solution to the initiative’s problems might be to withdraw it, then rewrite it for placement on the November 2006 ballot. The added time might spur a needed discussion of how to reform an a dysfunctional criminal-justice system.

What might a rewritten reform initiative look like?

First, it would include a mandate fully funding the reentry of nonviolent second- and third-strike prisoners into society. This is precisely what the authors of Proposition 36, which substituted drug treatment for jail, included in their successful 2000 initiative. The money earmarked to pay for the drug treatment under the proposition cannot be cut or transferred.

Second, Schwarzenegger should be drawn into the three-strikes reform process -- or, better yet, lead it. The governor has already demonstrated his skills as a negotiator in getting workers’ compensation reform enacted and is hugely popular with swing voters, whose support will be needed. As important, he’s displayed a willingness to take a second look at the state’s status quo of “lock ‘em up and throw away the key” by pardoning clearly rehabilitated prisoners whom former Gov. Gray Davis let rot in prison.

Schwarzenegger has also signaled his openness to new ways of dealing with the state’s special-interest-laden criminal justice industry, an industry he’s not indebted to. For example, he’s demanded that the California Correctional Peace Officers Assn. renegotiate the five-year, 37% pay raise given to prison guards by Davis when the state’s deficit was skyrocketing. That Schwarzenegger seems willing to take on the prison guards union is significant, given that under the two previous governors the union virtually ran the prison system.

Moreover, Schwarzenegger’s 2005 budget proposal cuts $400 million out of the bloated and hitherto sacrosanct $5.7-billion annual prison budget. And the governor has named the rehabilitation-minded warden of San Quentin, Jeanne Woodford, to head the state’s scandal-plagued corrections system.

Third, prominent law enforcement officials such as L.A. County Dist. Atty. Steve Cooley, Sheriff Lee Baca and corrections officials like Woodford should be invited to participate in rewriting a three-strikes reform initiative, along with politicians from both parties. With their imprimatur on the proposition, its chances of passage would soar.

It has taken decades for California to come to the point where the annual cost of its prison system rivals or exceeds that of its once-vaunted system of higher education. And it’s taken decades of shortsighted ideological posturing on the part of conservatives and political cowardice on the part of liberals to get California’s prison system to the point where we’re imprisoning three men in a 6-by-8-foot room designed to house one. Reform of the three-strikes law should be only the beginning of overhauling an unjust and corrupt system.