CALIFORNIA COMMENTARY : Oops! 3 Strikes, Death Penalty Out : A bonehead drafting error demonstrates (again) that making law by ballot initiative isn’t always smart.

I sn’t it rich? . . . Isn’t it grand? . . . Before our very eyes, the Three Strikes and You’re Out Initiative of 1994 is transformed to the Death Penalty Repeal Initiative of 1994. Welcome to the annual visit of the California Initiative Circus, a grand extravaganza in which legislators do back flips, governors do pirouettes on horseback and judges can be dunked for 10 cents a throw. Send in the clowns. . . .

In the first of the three rings under the big top, we have the disappearing drafters. This routine is usually timed for three to four months after the process of collecting signatures begins. That’s when somebody who will be charged with implementing an initiative sits down and reads it for the first time. This time, it was a prosecutor in the Contra Costa County district attorney’s office. He saw the problem in the first sentence of the draft initiative (it’s working title is “Sentence Enhancement. Career Criminals”):

“Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions, . . . the court shall adhere to the following: . . . There shall not be a commitment to any facility other than State Prison.”

The “notwithstanding any other law” would preclude application of the death penalty law, creating the anomalous situation that a murderer with a prior felony would have to be sentenced to prison under the “three strikes” initiative; only murderers without prior felony convictions would be eligible for the death penalty.

When this kind of bonehead drafting mistake is exposed, the first thing everyone asks is, “Who the hell wrote this?” (Remember the governor’s embarrassment when it was revealed that Proposition 165, his 1992 welfare reform initiative, inadvertently eliminated the power of the Legislature to override a veto?) The answer is remarkably consistent: No one wrote it. A committee drafted it, but no one on the committee was responsible for this blunder. That’s the nice thing about initiatives: The drafters show up to take credit only after their brainchild wins at the polls. At that point, there are usually five drafters for each word in the measure.

Once the process of collecting signatures has begun, a drafting error can’t be corrected. Unlike a legislative proposal which can be amended, the language of initiatives is cast in concrete.

Moving on to the second ring, we encounter the aerial endorsers. Aspirants for high office maintain balance for their trek across the high wire by selecting the right combination of initiative measures that they will publicly support. “Three strikes” was a no-brainer for three of this year’s gubernatorial candidates once polls started showing 80% of the electorate in favor of it.

The aerial endorsers sit down and read the measure for the first time only after the drafting gaffe is exposed. To avoid the embarrassment of admitting that the only thing they read before they endorsed it were the public opinion polls, they confidently announce that the error was unintended and the courts can be counted on to clean up the mess by interpreting the language consistent with the intentions of the endorsers.

In the third ring of our circus, we find the judicial gymnasts and their white elephants. The gyrations they achieve to avoid striking down a popular initiative are awesome. “And” becomes “or.” Regulatory protections are created out of thin air. Then the black-robed acrobats proudly lead the elephants, with such names as 13, 103 and 115, around and around the ring, trampling into the dust the predictability of how law is applied in California.

Three strikes will present a special challenge. A classification scheme that orders prison for those with felony records while reserving the death penalty for those without prior convictions couldn’t pass even the minimum rationality test of the equal protection clause of the U.S. Constitution. So the plain, unambiguous language will have to be distorted to read: “Notwithstanding any other law (EXCEPT the death penalty law, which we know nobody really wanted to repeal). . . . “

I hereby claim the role of the spoiler by publicly supporting the three-strikes initiative because it will repeal the death penalty law. That could save enough money to pay for some of the new prisons we’ll have to build. It just might be the first rational thing we’ve done to achieve criminal-law reform since the circus began.

The circus will be back every year until Californians wake up and realize that initiatives just aren’t a very satisfactory way to solve complex social problems.

But where are the clowns? . . . Don’t bother, they’re here.