Is California’s costly tough-on-crime era over? That’s perhaps too optimistic a conclusion to draw from Tuesday’s election results. In passing Proposition 36, voters curbed some of the excesses of the state’s three-strikes law, but they also rejected a measure to roll back the death penalty and adopted one — Proposition 35 — that broadens the sex offender registry and imposes new life terms for some human trafficking offenses. The state has ceased its relentless march down a road toward ever-tougher sanctions, ever-more-crowded prisons and ever-rising costs. It has not turned the corner, but it’s peering around it, trying to get a sense of whether it’s safe to proceed.
For the last two decades California voters have listened too often to their fear when going to the polls, so it’s important to remember that in previous years, initiatives generally steered clear of crime and punishment. Voters adopted a host of prison construction bonds in the 1980s and approved a victim’s bill of rights in 1982, but it wasn’t until 1990’s Proposition 115 that an initiative cut back severely on the procedural rights of criminal defendants. There followed a series of measures that fed on the cynical politics of crime. Voters expanded the range of offenses subject to the death penalty. In 1994, even after crime rates began their historic decline, voters adopted the three-strikes law. In 2000, they approved Proposition 21, a measure to revoke many of the state’s landmark protections for juvenile offenders as young as 14. In 2006, they turned their attention to sex offenders with Jessica’s Law, and in 2008, on the heels of a decade-long crime drop of 20%, they adopted a new victim’s bill of rights and virtually eliminated parole for many offenders with Marsy’s Law.
But the new prisons reached, and then exceeded, capacity. In turning away from rehabilitation, California kept the prisons’ revolving doors spinning, returning almost as many dangerous people to the streets — still addicted, or unskilled, or untreated, or unrepentant — as it sent inside. The state ran out of money. Courts rejected the most excessive and empty-headed provisions of the tough-on-crime initiatives. Other states demonstrated better, less costly programs to keep people safe and reduce recidivism.
In refining three strikes this week, voters have belatedly, but wisely, remade the recidivist-control law into what they intended nearly two decades ago, so that it no longer dishes out life terms for petty thefts. They indulged their desire to do some good by increasing punishment for human traffickers, but already plaintiffs have gone to court to challenge some of the measure’s overreaches. As for the death penalty, voters kept what they had: a penalty on the books, but virtually no executions in reality. It’s a sort of truce between fear and anger on the one side and wisdom and pocketbook on the other. It is the corner on which California nervously stands as it decides which way to go next.