Voters Get Their Way on Three-Strikes Law

Alex Ricciardulli, a regular contributor to the Los Angeles Daily Journal and California Lawyer magazine, is the Los Angeles County deputy public defende

The three-strikes law is dead. Sure, the statute remains on the books, but the law's original purpose--to inflexibly lock up defendants and throw away the key even if the third strike was as banal as stealing a slice of pizza or possessing a speck of cocaine--is dead as Dillinger.

In 1994, California's voters enacted the "three strikes and you're out" law by an overwhelming margin, requiring sentences of 25-years-to-life in prison when a defendant committed a third felony. Then last November, they approved Proposition 36, which substitutes drug treatment for prison time for many defendants who otherwise would be eligible for life in prison under the three-strikes law. Also last year, L.A. County voters, by an almost two-thirds majority, elected Steve Cooley as district attorney. One of Cooley's main messages was that criminals with a non-serious, nonviolent third strike should not get life in prison.

The three-strikes law was sold to voters as a way to keep violent, repeat felons off the street. There are conflicting studies regarding whether the law has caused California's crime rate to drop. The most recent analysis, published last week, showed no connection between the law and the drop in crime, though earlier studies found a direct link. But the main controversy since the law was enacted has been whether a defendant's third strike, like the first two, should be a serious or violent offense. The third strike for Richard Allen Davis, the poster child and impetus for the law, was the kidnapping, rape and murder of 12-year-old Polly Klass. But the ensuing law said that the third strike didn't have to be murder or kidnapping. It could be any felony under the sun.

The first crack in the three-strikes facade appeared in 1996, when the California Supreme Court approved a judge's decision to spare Jesus Romero, whose third strike was possession of two rocks of cocaine, from a 25-years-to-life sentence. The court ruled that judges, in appropriate cases, have the power to dismiss one of the strikes in furtherance of justice and sentence the defendant to less than life in prison. A critical component of the decision was the nature of the third strike.

The fallout from the Romero case, even for non-serious third strikers, was decidedly mixed. however. Depending on the sentencing practices of the judge, as well as the quality of the mitigating evidence marshaled by the defense attorney, many non-violent offenders still went to prison for life despite the courts' discretionary powers. Department of Corrections statistics show that, as of August 2000, approximately 50% of the 6,374 defendants serving life in prison under the three-strikes law were done in by a non-serious, nonviolent third strike. In thousands of cases, judges still only heard the message from the 1994 election: Lock them all up, and let God sort them out.

But then came Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, which took effect July 1. When a defendant commits a drug crime for possession or transportation for personal use of illegal drugs, a judge must impose a sentence of probation and drug treatment. Even a defendant with strikes on his record qualifies for treatment instead of punishment, so long as the defendant has remained out of prison and hasn't committed a serious offense for five years. If the defendant repeatedly violates probation, he or she can then be sentenced to prison, including life, if the drug crime is the third strike.

Although Proposition 36 applies only to drug crimes, and excludes offenses involving sales, it represents another fissure in the foundation of three strikes. Most important, it was the first time since three strikes was enacted that citizens expressed doubt on a strikes-related issue.

Voters apparently didn't buy the anti-Proposition 36 arguments that the proposed drug law would undermine three strikes. They opted for a more measured approach, given the five-year prison-free requirement and the possibility of prolonged incarceration if the defendant refuses to fly straight. True, the pro-Proposition 36 forces were much better financed than the groups that opposed it. Still, voters' approval of the measure suggests they were backing away from their once unequivocal support of the lock-em-up mentality of three strikes.

Cooley's election as district attorney of California's largest county is yet another blow to three strikes. In the campaign, Cooley distanced himself from his predecessor, Gil Garcetti, on a number of grounds, one being that, unlike Garcetti, he favors not asking for a 25-years-to-life sentence when the third strike is unaggravated. Although many other reasons torpedoed Garcetti, Cooley won the election by a huge margin even though he was "soft" on three strikes.

Under Cooley, the district attorney's office presumes that three-strikes cases do not merit a life sentence if the third strike is a non-serious, nonviolent offense. An exception is made for sales-related crimes involving great quantities of drugs, and the presumption can be rebutted "if the current offense involves the use or possession of a firearm or deadly weapon, injury to a victim or the threat of violence."

The three-strikes law is still used occasionally to imprison for life defendants whose current crime is non-serious. But the defendant in such cases almost always has something else going against him, such as countless heinous prior strikes.

Since neither Proposition 36 nor Cooley's policy is retroactive, for the 3,000-plus defendants still in prison with non-serious, nonviolent third strikes, the three-strikes law is definitely still alive for them. These defendants might have to wait until the electorate articulates its wishes again to get any relief.

Given its approval of Proposition 36 and Cooley's electoral victory, the electorate apparently didn't intend in 1994 that defendants whose qualifiying third strike was as ticky-tacky as possessing cocaine or stealing food should be invariably imprisoned for the rest of their lives. The voters spoke then, but it took until last year for their voice to be heard.

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