Sponsored by a father whose daughter was murdered by a parolee, and favored by an electorate angry about crime, the “three strikes and you’re out” initiative is winning political support up and down California.
Atty. Gen. Dan Lungren gives it his “unqualified support.” Gov. Pete Wilson endorses it. So do Democratic gubernatorial hopefuls Kathleen Brown and John Garamendi. Legislators are rushing to pass legislation mimicking the initiative.
Criminal justice experts say the proposed initiative would create the harshest sentencing system in the nation for habitual criminals.
But in courthouses around the state, district attorneys are skeptical that the initiative will do what its backers claim, and many prosecutors are opposing the popular idea.
“The root of all of this is fear,” said Los Angeles Dist. Atty. Gil Garcetti. “People are fearful for the safety of their loved ones and themselves, and angry that people who commit these crimes get out of prison.”
Although Garcetti believes habitual violent criminals must be locked up, he opposes the three strikes initiative.
The way the initiative is worded, Garcetti said, a three-time felon could be sent to prison for life without committing any violent crimes. A juvenile age 16 who commits two residential burglaries and is sentenced in the juvenile system would amass “two strikes,” Garcetti said. In the extreme, the same person caught passing a bad check for $500 a few years later could be looking at a sentence of life in prison.
“We cannot afford it,” Garcetti said. “We’re going to have a tremendous jury backlash. Jurors are going to require more proof than (the current standard of) ‘beyond reasonable doubt.’ ”
A year ago, the Assembly Committee on Public Safety, then controlled by liberal Democrats, refused to pass a three strikes bill carried on behalf of Mike Reynolds, whose daughter was killed by a repeat felon outside a Fresno restaurant in 1992.
Reynolds resorted to an initiative, essentially turning the legislation sponsored by Assemblymen Bill Jones (R-Fresno) and Jim Costa (D-Hanford) into the proposition heading for the November ballot.
Using much of his life savings, along with donations from the National Rifle Assn., the Gun Owners of California, and the California prison guard union, Reynolds set out to gather the required 385,000 valid signatures of registered voters to place it on the ballot.
The proposal grabbed attention across the state when Richard Allen Davis, a habitual criminal on parole, was arrested for the murder of Polly Klaas, a 12-year-old Petaluma girl kidnaped from a slumber party while her mother was at home. If the initiative had been law at the time of his earlier crimes, Davis would not have been on the streets.
In the days after Davis’ arrest, so many people called Reynolds’ 800 number that the entire 800 system became jammed in Fresno, where he lives. On some days, 20,000 people have signed his petitions. Reynolds, who has gathered more than half the necessary signatures, said he will drop the initiative only if the Legislature approves and Gov. Wilson signs the Jones-Costa bill.
With the signature-gathering continuing, the Legislature has had an apostasy. At its first hearing of 1994, the Assembly Public Safety Committee revived and approved the Jones-Costa bill endorsed by Reynolds, and passed four other pieces of “three strikes” legislation, each of which would put three-time losers behind bars for life. They differ primarily in the kinds of crimes that are counted for each strike.
The Assembly Ways and Means Committee approved the same five bills last week, even though no fiscal analyst knows how much they would cost--except that it will be in the billions. The full Assembly is set to vote on the measures today.
All of the bills would dramatically toughen the laws under which California judges sentence habitual criminals, and keep repeat felons like Davis in prison for life.
Since 1986, California has had a statute that provides for life sentences for habitual criminals. But the law is so narrow that fewer than 50 people have been sentenced under it. An aide to Garcetti could find no instances in which it had been imposed on a repeat felon in Los Angeles County.
The statute says judges can impose life sentences on felons who inflict “great bodily injury” on their victims, but only if the criminal has served two previous prison terms for violent felonies. That combination of crimes and sentences is rare.
California ranks 17th among states in its rate of imprisonment and has the largest prison population in the nation--120,000. The Little Hoover Commission, a government watchdog group, reported recently that 43% of the state’s inmates are violent offenders, down from more than 60% in the 1970s. At the same time, the number of felons in prison for burglary and drug offenses has risen sharply.
Reynolds’ three strikes initiative proposes to imprison for life people who commit violent or serious crimes, which are enumerated in the Penal Code. They include crimes such as murder, rape, arson, child molestation, some property crimes such as residential burglary, and some drug offenses.
The number of felons who would fall into the initiative’s net is not known. But the initiative’s proponents say several thousand criminals a year could receive life terms.
The Department of Corrections is working on an estimate, but is not expected to complete its work for another week. The legislative analyst estimates the expense at several billion dollars in prison construction, plus additional costs of incarceration that over time could reach more than $1 billion annually.
In another part of the initiative, Reynolds seeks to double the sentences of people who commit a second serious or violent offense. He said the two-time loser provision may be the initiative’s most important component. Its goal is to keep violent second-time offenders behind bars until they pass age 40. Statistics show that criminals become less violent once they reach middle age.
But the public focus of the initiative is on three-time losers. Criminals who have been convicted of two serious or violent felonies would face a virtual lifetime behind bars if they commit a third felony. The initiative pegs the sentence for three-time losers at 25 years to life, or three times the current prison term for the third felony, whichever is greater.
The initiative says the third crime may be any felony, though Reynolds said prosecutors would not be compelled to seek life sentences against people who commit minor crimes on a third offense.
“District attorneys will make the legislation work, no matter what,” said Fresno County Dist. Atty. Ed Hunt, who supports the initiative. If a crime is minor, he said, “You don’t have to file it as a felony.”
For three-time losers, the initiative would mean a return to the system of indeterminate sentencing in which felons are given open-ended terms of up to life in prison and must win release from parole boards. The Legislature did away with most indeterminate sentences in 1977 when it passed the determinate sentencing system, which set specific terms for almost all crimes other than murder.
At a minimum, someone sentenced to life under the initiative would serve 20 years. Reynolds says most three-time losers would die in prison, or spend virtually all their lives behind bars.
Opponents believe repeat felons will demand jury trials if they face life sentences. In San Mateo County, 45 prosecutors tried 85 jury trials in 1993. Dist. Atty. Jim Fox estimated that under the initiative, 400 people a year could face life terms in his county.
“We are looking at judicial gridlock,” Fox said, adding that he would need more than twice the number of attorneys to handle the new work. Given that criminal cases take precedence over civil lawsuits, he said, “the civil system as we know it will no longer exist.”
California’s proposed initiative borrows the name from the three strikes initiative passed by voters in Washington state last November. But unlike the California measure, Washington’s initiative requires that three-time losers commit one of 25 “most serious crimes” before receiving life without parole.
“California is a step up from (Washington’s) three strikes,” said John Carlson, a radio commentator in Seattle and sponsor of Washington’s measure. He estimates that 50 to 70 criminals a year will be sentenced to life under Washington’s new statute. Washington prisons house about 11,000 inmates.
Florida may have the most widely used statute aimed at habitual criminals. Prosecutors use it 2,000 times a year, said James Austin, executive vice president of the National Council on Crime and Delinquency. Of the 55,000 inmates in Florida prisons, 15,000 have life sentences.
As an alternative to the initiative, the California District Attorneys Assn. is backing a bill by first-term Assemblyman Richard K. Rainey (R-Walnut Creek). A former sheriff of Contra Costa County, Rainey fashioned a bill that would impose sentences of life or life without parole for violent and serious habitual criminals.
Assemblyman Tom Umberg (D-Garden Grove) is pushing a separate bill that would impose life without parole on people who commit a second crime against children. Felons who are convicted of a third violent felony also would receive mandatory sentences of life without parole.
Assemblyman Ross Johnson (R-Placentia) has a less detailed proposal. It simply states that people who commit a third violent felony shall be sentenced to life without parole. In the upper house, Sen. Rob Hurtt (R-Garden Grove) and Sen. Phil Wyman (R-Tehachapi) have bills identical to the initiative and the Jones-Costa bill.
Rainey’s measure appears to have the most legislative support. It would impose sentences of life in prison without parole on criminals convicted of a third violent felony. It also would impose life with the possibility of parole for someone who commits a serious felony as a third offense.
“We are only talking about the most violent people in society--the people we have not been able to turn around and who have proven they are going to continue to commit violent crimes,” Rainey said.
Rainey estimated his bill could result in the imprisonment of perhaps a few hundred to a few thousand habitual criminals annually, although no detailed analysis has been done. Had Rainey’s bill been law, it would have kept Richard Allen Davis, as well as the killer of Reynolds’ daughter, off the streets.
Criminal justice experts, meanwhile, remain skeptical that more prisons will have much impact on the overall crime rate. The number of people in California prisons has quadrupled since the 1970s, but the crime rate has remained relatively unchanged.
Many experts say the emphasis should be placed on diverting young people from gangs and violence.
Austin at the Nation Council on Crime and Delinquency warned that the three strikes movement could end up worsening the crime problem by forcing the government to take money from prevention programs to pay for prisons. The three strikes measure also could result in the incarceration of aging felons who often are of little threat.
“While there may be moral justifications for locking up offenders, imprisonment appears to have little impact on the amount of crime experiences in local communities,” Joan Petersilia, a criminal justice expert at the RAND Corp., wrote last year.
She noted that much predatory crime is committed by juveniles too young for prison, or by young adults unlikely to be sent to prison for most first-felony convictions.
People under age 18 account for a fifth of the population but 30% of the arrests for the seven most serious crimes. Statewide, 19% of the homicide arrests in 1992 were of juveniles under age 18, and 16.6% were of young adults age 18 or 19.
At the Hall of Justice in Los Angeles, Garcetti supports Rainey’s bill but has doubts that any three strikes measure will dramatically cut crime, unless there is more help for troubled youths.
“Unless we are willing to go after youngsters at a much earlier age,” Garcetti said, “the three strikes initiative and building all the prisons in the world is not going to make this a better place to live. We have to restore hope, especially for our ethnic minorities. . . . Three strikes is needed. But if that is all we’re going to do, we truly are spitting in the wind.”
‘Three Strikes’ Proposals
There are at least half a dozen proposals being offered to impose life sentences on three-time losers. Each targets people who commit violent or serious crimes, which are defined in the California Penal Code.
* Violent felonies include murder, mayhem, rape, child molestation, a felony in which a defendant uses a gun, a felony in which a defendant inflicts great bodily injury, robbery in a home, some arson, use of a bomb, kidnaping and carjacking.
* Serious felonies include residential burglary, robbery, attempted murder, assault with intent to rape or rob, grand theft of a gun, assault with a deadly weapon against a police officer and selling, giving or offering heroin, cocaine, PCP or methamphetamine to a minor.
THE MAJOR PROPOSALS
Here are some of the proposals and the series of crimes that would make a defendant subject to a ‘three strikes’ penalty:
THREE STRIKES INITIATIVE
* First offense: Any serious or violent felony.
* Second offense: Anyone convicted of a second serious or violent felony must be sentenced to twice the prison term now in effect.
* Third offense: Anyone convicted of a third felony, whether or not it is serious or violent, would be sentenced to three times the term or 25 years to life, whichever is greater. There is no requirement that the first two stem from separate prosecutions.
* Juvenile offenses: Serious or violent felonies committed by youths 16 or 17 count as strikes, even if the juvenile was not tried as an adult.
ASSEMBLY BILL 971
Assemblymen Bill Jones (R-Fresno) and Jim Costa (D-Hanford)
* Identical to the initiative.
ASSEMBLY BILL 1568
Assemblyman Richard K. Rainey (R-Walnut Creek)
* First offense: Any serious or violent felony.
* Second offense: Imposes 10 years more in prison beyond the current sentence for a second violent felony, and five more years for a second serious felony.
* Third offense: Life without parole for anyone convicted of a violent felony, or anyone convicted of a serious felony if the first two were violent. Life with possible parole for anyone convicted of a serious felony.
* Juvenile crimes: Not counted as strikes unless the juvenile was tried as an adult.
ASSEMBLY BILL 167
Assemblyman Tom Umberg (D-Garden Grove)
* First offense: Any violent or serious felony, excluding burglary and furnishing drugs to a minor. Requires additional job training and education, and intensive parole supervision upon the felon’s release.
* Second offense: Life without parole for anyone convicted of a second violent crime against a child under the age of 14, including molestation.
* Third offense: Life without parole for criminals convicted of third violent and serious felonies, excluding burglary and furnishing drugs to a minor.
* Juvenile crimes: May be counted as prior felonies.