Three Strikes: the California Challenge


On June 20, The Three Strikes Reform Act officially qualified for the upcoming California ballot. Come November, voters will have the chance to amend the 1994 law that has condemned approximately 3,600 inmates to a 25-to-life sentence for nonviolent, non-serious crimes.

The law was intended to take serious repeat offenders who pick up a third felony charge off the streets for good—the idea being to protect the public from career super-criminals who would likely offend again if allowed to go free.

But more than a third of all Three Strikes lifers in the state system fit the definition of “non-violent” or “non-serious”—some of whom have infamously been put away for life for crimes as trivial as stealing a slice of pepperoni pizza. California taxpayers spend more than $100 million annually to house these inmates. When the nonviolent lifers get older and start to need more medical care, the tab goes much higher.

The last time voters had the chance to vote to reform the law—the harshest 3-strikes statute in the nation—was in 2004 with Prop 66. That initiative was on its way to sailing through the ballot process, until a last-minute offensive from Los Angeles District Attorney Steve Cooley, along with then-Governor Arnold Schwarzenegger and others, turned the tide against the initiative in the waning hours of the campaign.

Ironically, despite his role in the death of Prop 66, no California politician is more closely associated with Three Strikes reform than Steve Cooley. Certainly no one in public office has a more complicated relationship with the statute.

In a conversation with WitnessLA, Cooley maintains that he won his first Los Angeles District Attorney race in 2000, largely thanks to his support of relaxed Three Strikes sentencing guidelines.

'Defining Issue'

“It was the defining issue in the race,” he says.

Within two weeks of taking office, Cooley stayed good to his campaign promise, crafting a policy that allowed his attorneys to use discretion in pursuing 25-to-life sentences for non-violent third strikers—the first DA in the state to do so.

“It was a very modest reform,” he says. “It was not sweeping.”

According to Cooley, the two most important ethical considerations when it comes to sentencing are evenhanded application and proportionality.

“Two-bit forgery and drug possession could be the predicate for 25 to life—the same sentence we often reserve for murderers,” he explains. “People will only respect the laws when they feel punishment is handed out fairly and proportionally. We've had a great deal of success with this policy in LA.”

But when Cooley had the chance to back sweeping statewide reform of Three Strikes in 2004—via Prop 66—he balked. In May of 2004, polls showed that voters favored Prop 66 by a margin of 76 percent to 14 percent. And then came the 11th hour Cooley, Schwarzenegger and company scare campaign.

Down in Flames

Practically overnight, the polls did a 180. Prop 66 went down in flames, by a 53-47 percent margin.

“I don't think Cooley being against the bill was a deciding factor,” says journalist and author Joe Domanick, whose book Cruel Justice is considered the authoritative work on the history of Three Strikes laws in California. “The entire law enforcement establishment was against the bill”

Adds Domanick: “The real factor was all the Peace Officer Association money given to Schwarzenegger that paid for a host of devastating, 30-second ads right before the election.”

Editors note: Joe Domanick is West Coast Bureau Chief for The Crime Report

Cooley is unapologetic about the role he may have played in Prop 66's demise.

“From a public safety standpoint, 66 was scary,” he says. “Once I crunched the numbers and saw how many people would be released and how quickly, I was strongly, openly, publicly against it. In Los Angeles County alone, 12,000-14,000 would have been released within a year.”

Domanick says those numbers may or may not have been accurate—but they were certainly persuasive to voters.

The author recalls publicly calling Cooley out on his Prop. 66 stance at a USC social justice conference in 2004. In retrospect, however, Domanick says that, although he disagreed with Cooley's stand against 66, it was not inconsistent with the DA's advocacy on the issue.

“He's not against Three Strikes,” says Domanick. “He's against these provisions that send people to jail for minor crimes. He thinks it's unjust if it's applied indiscriminately, and he's concerned these kinds of laws hurt the integrity of the system.”

And indeed, Cooley didn't let the issue die.

Two years after Prop 66's demise, the Republican DA teamed with Democrat State Senator Gloria Romero to craft a more modest Three Strikes reform measure—S.B. 1642–based on the relaxed Three Strikes guidelines he'd developed in the LA DA's office.

“Three Strikes is a powerful tool for prosecutors if used properly,” Cooley explains. “Prop 66 was a wake-up call: 'OK, these folks have some arguments that appeal to the public. Let's take those arguments away.' In order to avoid a future Prop 66, we had to make people feel good about how Three Strikes was being applied.”

S.B. 1642, however, died in committee.

Five Democrats Opposed

“The only reason it failed is because five Democrats didn't vote for it,” Cooley says. “They made a political decision based on their own political careers. It absolutely would have passed otherwise.

The bill's defeat marked the end of Cooley's public activism on the issue of Three Strikes. But his positions have followed him throughout his political career.

His opponents in the 2010 California Attorney General's primary race tried to “Willie Horton” Cooley by singling out the isolated cases of eligible Third Strike criminals who were given lesser sentences, got out of prison, and went on to commit horrific crimes.

Cooley, however, rejects the notion that his positions on Three Strikes have hurt him politically.

“During the Attorney General race, both of my Republican opponents made my Three Strikes views an issue. I won the primary by a landslide. My adversary tried the same tact in 2000 and I won by something like 28 points.”

Although an ameliorating law has yet to make it to the books, Three Strikes reform is exceedingly popular in California.

A June 2011 Field Poll revealed that nearly 75 percent of California voters favor reform. Field director Mark DiCamillo says his organization won't take a poll on the initiative itself until the Secretary of State certifies the ballot language sometime next month.

“The last time we polled [in 2011] was a concept test on whether voters agree or disagree on relaxing Three Strikes law as a way of easing prison overcrowding,” says DiCamillo.

“I can't use that measure to see how they feel about the actual initiative, although those numbers must certainly be encouraging for its supporters.”

Field's most recent polling numbers, however, are the same as those that buoyed the hopes of Prop 66 advocates in 2004—before Cooley and others stepped in to help shoot the measure down.

Playing Coy

When WitnessLA spoke to him last week, he played coy about his support for the current initiative.

“I have not taken an official public position yet,” he says. “I do like the concept. I've read a number of analyses [of the proposed measure] but I need time to study. I plan on taking a public position soon.”

Cooley readily concedes that the current initiative is based on the policies he implemented in Los Angeles in 2000. He also admits that some of his main deputies were an active part of the conversation when the initiative was being drafted.

“People in my office were involved,” he says. “I think this particular product is better than what was proposed in 2006. It's workable. And I think it will prevent Three Strikes from being attacked by another 66-type effort.

“When the law first passed, before DAs like myself and others implemented new guidelines, there were some abuses. Some of those have yet to be remedied. This cleans up a loose end.”

Should The Three Strikes Reform Act succeed in November, Cooley's LA County policy will effectively become the law of the land. Would victory in November be his signature legacy achievement?

“Not really,” he says, with more than a tinge of blasé understatement. “I've got more significant accomplishments. This is something for the public to decide. They finally have the chance to make an important decision.”

Editor's note: for a national perspective on the status of reforms to three strikes initiatives and mandatory-minimum sentencing, please see The Crime Report story by Scott Michels, “Re-thinking Tough on Crime.”

Matthew Fleischer is a reporter for WitnessLA. Please check out a full version of his story and other reporting on the issue HERE. He welcomes comments from readers.

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