One of the trickier aspects of building an effective criminal justice system is making sure that the punishment fits the crime; that's important because penalties considered arbitrary and unfair breed disillusionment and anger that can worsen lawlessness rather than reducing it.
How's this for arbitrary and unfair: Under California's three-strikes law, Scott Andrew Hove was sentenced to 25 years to life after shoplifting $20 worth of merchandise from a Home Depot store. Homeless people have been given more time than many rapists and killers for stealing meals from food kitchens; drug addicts caught with small stashes have been swept behind bars for life. Since California voters approved the law in 1994, thousands of repeat offenders have received extraordinarily draconian sentences for third felonies that were nonviolent and non-serious, helping to clog the prisons and, despite claims from the law's proponents, having no discernible effect on crime. Proposition 36 would correct some of the worst injustices.
It's a relatively moderate set of changes. Under current law, a person convicted of a felony who has two or more prior convictions for serious or violent felonies is sentenced to 25 years to life, regardless of the nature of the latest crime. Proposition 36 would require that the third strike be serious or violent as well to trigger the 25-years-to-life term. The measure is tailored to ensure that the worst bad guys remain behind bars for a very long time. A third-striker whose prior convictions involved certain sex-, drug- or gun-related crimes would still get 25 to life even if the third offense wasn't serious or violent. And even those whose third offenses were nonviolent and didn't count as third strikes wouldn't get off easy — they would have to serve double the usual time for their latest offense. So, for example, a thief facing a third strike for a nonviolent crime that would usually merit a sentence of two to four years would instead get four to eight.
L.A. County Dist. Atty. Steve Cooley, a backer of Proposition 36 who could hardly be called soft on crime, has long advocated this approach, and for many years he has declined to file third-strike charges against nonviolent felons. Los Angeles has not been overwhelmed by a crime tsunami as a result; in fact, crime has dropped here just as steadily as it has in the rest of the state.
If Proposition 36 passes, inmates who have already been convicted under the three-strikes law could apply to have their sentences reduced if the third strike was for a non-serious or nonviolent crime. Opponents of Proposition 36 say this would flood the streets with career criminals who would surely re-offend. But according to the Legislative Analyst's Office, of the approximately 9,000 third-strikers in California prisons, about 2,800 would be eligible to have their sentences reconsidered. Most of those men and women have been in prison for a very long time and are now into middle age and beyond, and some are quite infirm. Before they could be considered for release, they would have to petition their sentencing judge, who would have to determine that they no longer represent a threat to public safety. Several hundred aging ex-convicts judged not to be dangerous, spread across the state of California, seems an unlikely catalyst for a crime wave.