Battle Over 3-Strikes Measure Heats Up

Times Staff Writers

With a rapidity that has taken many political leaders by surprise, Proposition 66, a proposal to significantly scale back California’s three-strikes law, has become the focus of the hottest fight on the state’s long, complex ballot.

Polls by The Times and the Field organization in the last two weeks showed the measure winning with more than 60% of the vote. Now, with money from Henry T. Nicholas III, the founder of Broadcom Corp. and one of the state’s richest men, opponents of Proposition 66 are staging a furious last-minute effort to preserve the current three-strikes law.

On Thursday, Gov. Arnold Schwarzenegger and three of his predecessors -- Democrats Gray Davis and Jerry Brown and Republican Pete Wilson -- staged a rare joint appearance to denounce the ballot measure.


“Proposition 66 is nothing but a loophole for violent criminals, and it will lead to more crime and more victims in California,” Schwarzenegger said, echoing the theme of television advertisements that feature the governor pointing to mug shots of criminals he says the proposition would release from prison.

Supporters of the proposition accuse Schwarzenegger of engaging in misleading “scare tactics.” They note that the proposition allows current inmates to ask for a resentencing hearing, but does not automatically release anyone.

The two sides have tangled repeatedly over how many prisoners might be freed if Proposition 66 passes. In his ads, the governor says “26,000 dangerous criminals will be released from prison” -- a statement that exaggerates the proposition’s effect.

Prosecutors say Proposition 66 would make 26,000 inmates eligible for hearings on new sentences. Supporters of the measure say only 4,200 would be eligible.

Legal experts say that until courts can rule on specific cases, that dispute cannot be resolved. But even if 26,000 were eligible, not all would be released. Even without the three-strikes sentence enhancement, some would still have years to serve, and others would expose themselves to new charges by asking for a hearing.

Proposition 66 backers have focused on cases in which people were given life sentences for relatively minor offenses. Currently a life sentence can be imposed for any felony conviction if a person has two previous convictions for felonies defined as serious or violent by the criminal code.


The number of people serving life sentences for petty theft under the three-strikes law has risen to more than 350, and nearly 700 are in for life for possessing small quantities of drugs, state figures show. But some -- although not all -- of those inmates had previous convictions for assaults, rapes or other violent crimes.

Proposition 66 would allow life sentences to be handed out only for third-strike crimes that were serious or violent. The proposition would also remove eight crimes from the list of serious and violent felonies, while increasing the penalties for some crimes against children.

Schwarzenegger and other opponents of the initiative conceded this week that they may have intervened too late to defeat the measure. In these closing days before the election, their campaign advertising must compete for attention with a slew of messages on other propositions, as well as coverage of the tense presidential race.

“I should have put the money in a long time ago,” said Nicholas, the Orange County billionaire who gave $1.5 million this week and has pledged to “give as much as necessary” to defeat Proposition 66.

The way that support for the measure caught at least some opponents by surprise underscores how rapidly the politics of crime has shifted in California, political experts say.

In 1994, when voters overwhelmingly passed three strikes, the murder rate was near an all-time high. Political and legal aftershocks of the 1992 Los Angeles riots were being felt. And one sensational homicide or rape or home-invasion robbery seemed to follow another, until many in the state felt terrorized.

The early 1990s “was the angriest and most fearful period,” said UC Berkeley law professor Franklin Zimring, author of a book critical of the three-strikes law. “Part of what separates now from then was how weird then was.”

Concern about crime reached a peak after 12-year-old Polly Klaas was abducted from her home in Petaluma by a man who had been in and out of prison much of his life. Eleven months after searchers found her body, voters approved the sentencing law -- the toughest in the nation.

Even as those three-strikes laws were passing here and elsewhere, however, crime was beginning to drop.

In the last decade, crime rates have plummeted nationwide. Violent crime reached a 30-year low in 2002, according to the Department of Justice.

In California, crime rates are down nearly 45% statewide in the last decade. Homicides in Los Angeles reached a high of 1,094 in 1992. By last year they had dropped to 515.

The reasons for the dramatic decline in crime are much debated. Supporters of the three-strikes law say locking up repeat offenders played a major role. Critics of the law dispute that, pointing out that states without three-strikes laws have also seen major reductions in crime.

Other factors have included an aging population -- especially fewer young men, who are the most frequent perpetrators of crimes -- and a robust economy during much of the last decade.

Whatever caused the drop, the effect on public opinion is indisputable -- voters do not fear crime as much as they once did.

In the early 1990s, crime topped the list of what Californians surveyed in Times polls viewed as the state’s most important issue. By the late 1990s, the percentage listing crime as the top issue had dropped substantially, although crime still ranked high among voter concerns. By last year, crime had dropped out of the top three, replaced by education, the state budget and the overall economy.

“What’s changed is not that burglars have become popular. They haven’t,” said Zimring. “It’s the salience of crime that’s changed. There is no great love for offenders, but there’s no great fear either.”

Proposition 66 supporters argue that even in 1994, most voters did not really want to crack down as hard as the three-strikes law did.

“I don’t think that most of the people who voted for this in 1994 wanted to put petty thieves in prison for the rest of their lives,” said Duke University law professor Erwin Chemerinsky, a longtime critic of the three-strikes law and a supporter of Proposition 66.

But until recently, Californians have dismissed criticism of the law.

One of the first cases to draw worldwide attention to it was that of Jerry Dewayne Williams. A small-time criminal, he had four prior convictions when he was found guilty in January 1995 of stealing a slice of pepperoni pizza from a group of children on the Redondo Beach pier and sentenced to 25 years to life.

The sentence sparked a global debate over the law. But even as European media outlets and civil liberties groups decried the sentence, many Californians seemed untroubled by it.

Redondo Beach resident Heling Craig, who had sat through most of the trial, stood outside the courthouse after Williams was sentenced and summarized the feelings of many supporters of the then-new law: “It’s, like, hey, this guy’s had five chances, and he still goes out and commits a crime,” Craig said.

After Williams was sentenced, court decisions gave judges and prosecutors discretion to disregard third strikes in some cases.

A judge used that authority to free Williams a couple of years after his conviction. He was later rearrested on suspicion of domestic violence and charged with a misdemeanor.

Still, his case has become a metaphor for what critics of three strikes see as excesses.

Former state Sen. Tom Hayden tried to amend three strikes in the late 1990s. He found little support from other lawmakers.

Even earlier this year, Hayden said he doubted that voters would approve an initiative to roll back three strikes. “But public opinion has certainly shifted,” he said this week. “I think the story of the pizza thief and others permeated significantly over time.”

Now, the question is whether Schwarzenegger and his allies can shift voter attention from pizza thieves back to the image of serious criminals.

Historically, an initiative so far ahead in the polls at this point has almost always succeeded, said Larry Gerston, a political science professor at San Jose State. The outcome, he said, now becomes a referendum not only on the law, but also on Schwarzenegger’s ability to influence voters.

“The governor picks and chooses his battles carefully, and they’re usually races he has a good shot at winning,” said Gerston. Turning around the vote so late in the process is a challenge, “but then again he’s done a good job of surprising a lot of people so far in his short political career.”


Times staff writer Megan Garvey contributed to this report.