By Andy Furillo, The Sacramento Bee –
SACRAMENTO, Calif. — Stanford legal minds conceived the measure. A prosecutor from Los Angeles vetted it. The godfather of its original design is fighting it.
Come November, California voters will decide if it stands.
Proposition 36 gives the state’s electorate another opportunity to weigh in on California’s 18-year-old “three-strikes” law, the toughest career-criminal sentencing statute in the nation.
Twice in as many decades, voters have sided in favor of a three-strikes law that allows judges to impose a life prison term for offenders who commit a third felony — no matter how minor — if they have two previous serious or violent criminal convictions on their records.
Proposition 36 proponents want to change the law to restrict the 25 years-to-life sentences, with some exceptions, to criminals whose third felony was serious or violent; nothing less than a residential burglary would qualify as a strike.
The measure would enable an estimated 3,000 of the 8,873 prisoners serving 25 years-to-life terms in the state as of June 30 to apply for resentencing hearings. If their motions for new terms are granted, a good number of those 3,000 prisoners could go free. The Legislative Analyst’s Office estimates passage of Proposition 36 could save the state anywhere from $70 million to $90 million a year in reduced prison costs.
The initiative has had huge cash infusions from two sources.
Billionaire financier George Soros, the international hedge fund manager who has contributed millions over the years to change drug laws and other statutes he believes are too harsh, kicked in $500,000, according to the Secretary of State’s records.
David W. Mills, a Stanford law professor and private investment manager matched and raised the contribution. Mills, a co-chair of the NAACP’s Legal Defense Fund, put in $878,000.
The money Soros and Mills contributed paid for the $1.4 million signature-gathering effort that qualified Proposition 36 for the Nov. 6 ballot.
In an interview, Mills, 65, said his involvement in California’s three-strikes law stems from his long-term interest in civil rights. It is Mills’ view that the sentencing measure’s “dramatic effect on poor people and African-Americans” makes it one of the leading civil rights issues of the day.
“The notion I can live in a state in a country where we would send somebody to jail for 25-to-life for stealing a loaf of bread, a pair of gloves, a piece of pizza, for a gram of cocaine, or whatever, to me is incomprehensible,” he said.
Opponents of the measure include the California Police Chiefs Association; its president, Sacramento Police Chief Rick Braziel, signed the ballot rebuttal argument against Proposition 36, arguing thousands of criminals would be released from prison. Top victims’ rights organizations, such as Crime Victims United of California, also have lined up to fight the measure.
So far, only the Peace Officers Research Association of California has contributed any major money to the anti-Proposition 36 campaign. The rank-and-file police officers organization contributed $100,000.
In 2004, Orange County businessman Henry T. Nicholas gave $1.9 million in the final days of the campaign to help defeat a ballot effort to weaken the three-strikes law. This year, Nicholas has signed the ballot arguments to fight Proposition 36 but so far hasn’t put his name on any campaign checks.
Another no-show has been the California Correctional Peace Officers Association, which has historically backed the three-strikes law.
Mike Reynolds, the Fresno photographer whose daughter was murdered by a repeat offender, has served as guardian of the three-strikes law since its 1994 birth.
In an interview, Reynolds noted steep declines in the California crime rate in the 18 years that three-strikes has been in effect. He wonders why anyone would want to change it, and is angry at the thought of 3,000 career criminals getting out of prison.
“One hundred percent of them would have at least two prior serious or violent convictions,” Reynolds said. “Make no mistake. We’re talking about the bad boys. These are the guys who are responsible for the worst of our crimes, the most active by definition. And you want to put them back on the streets and not expect them to come back with new convictions?”
Another Proposition 36 opponent, Sacramento County District Attorney Jan Scully, sneers at the suggestion the three-strikes change would save taxpayers’ money by releasing people from prison.
“This assumes they’re not going to commit any more crimes,” Scully said. “Trust me, they are. Then we’ll have to prosecute them again, so they’ll be taking up just as many resources as before, except they’ll have new victims in their path.”
The Legislature enacted three-strikes after the 1993 kidnap, sexual assault and murder of Polly Klaas, a 12-year-old Petaluma girl. California voters later endorsed the law by a nearly 3-to-1 margin, 72 percent to 28 percent.
The 2004 ballot measure, Proposition 66, sought to soften the law by requiring the third strikes to be serious or violent. It also would have eliminated burglary as a “strike” unless somebody was home at the time of the break-in.
With that initiative’s downfall, and with two U.S. Supreme Court decisions upholding the three-strikes statute, Mills and other law professors at Stanford tried another approach to rectify what they saw as the excesses of the law.
In 2006, they established a clinic to make use of a 10-year-old California Supreme Court decision that allowed inmates to have their life terms re-examined. The so-called 1996 Romero decision gave judges authority to “strike strikes” — and thereby slash prison terms — while at the same time giving already-sentenced “three strikes” prisoners an opportunity to petition for re-sentencing.
The clinic enlisted law students to comb through old three-strikes cases to find ones that might qualify. The Stanford project has succeeded in gaining the release of as many as 25 inmates who had been doing 25 years-to-life, according to project director Michael Romano, also a Stanford law professor.
More than half of those cases — 15 to 17 of them, according to Romano — came out of Los Angeles, where the district attorney had come to office in 2000 on a platform that promised to change the way the county applied the three-strikes law.
Steve Cooley charged in his winning 2000 campaign against then-incumbent Gil Garcetti that the office was undermining the law by over-applying it.
Once in office, Cooley said, he sought to inoculate three-strikes from political and legal attack by enacting a policy in which his office limited its pursuit of 25-to-life terms mainly to offenders accused of serious or violent third felonies. The Cooley plan, however, retained the 25 years-to-life hammer for career offenders if prosecutors felt a defendant’s record was particularly egregious — even if the third felony was not.
Unnerved by the narrow 2004 defeat of Proposition 66 at the polls, 53 percent to 47 percent, Cooley went to Sacramento to try and shape a statewide measure that would head off more legal and political attacks on what he viewed as a critical prosecutorial tool for getting dangerous career criminals off the street.
Cooley teamed with former Democratic state Sen. Gloria Romero of Los Angeles in 2006 to fashion a proposed ballot measure that mirrored his own three-strikes policy.
The proposal died in the Legislature, but it sparked a conversation between Cooley and the Stanford group that six years later has produced Proposition 36.
“I remember going up there and lecturing to their professors and some of their students,” Cooley said in an interview. “I think there was a time when they were more of a Proposition 66 mentality. Maybe over time my lectures to them, or just talking to them, brought them back to reality.”
Proposition 36 contains one huge departure from Cooley’s policy in Los Angeles: It would take away the discretion prosecutors now wield in every California county under current three-strikes law to pursue a 25 years-to-life term on a weak third felony if they believe the offender’s background merits it.
Cooley signed off on the elimination of the prosecutorial discretion. He said it was necessary to get rid of sentencing disparities that result in some counties, such as Kern, sending prisoners away on life terms at nearly 10 times the rate of other counties, such as San Francisco.
“The last attack against three strikes, legally, would have been the statistically disparate application throughout California,” Cooley said. “This eliminates that attack.”