3 Strikes Reform in CA: “Victory for Common Sense”


On November 6, California voters approved Proposition 36, which reforms California's “three strikes” law to require that a third strike be a serious or violent felony. Additionally, it allows resentencing of many of those whose third strike was a minor offense.

It is an initiative based on basic human decency and common sense: there is no reason to imprison shoplifters for life.

It will also save California taxpayers a significant and increasing amount of money each year.

What's shameful is that it took 18 years after the adoption of the three strikes law to make this change— with an incalculable human cost.

The passage of Proposition 36 brings California in line with other states that have three strikes laws.

Although about half the states have such laws, California is unique in that it is the only one in the country that does not require that the third strike be a serious or violent felony.

As Justice John Paul Stevens pointed out, prior to California's three strikes law, no one in the history of the United States was sentenced to life in prison for shoplifting.

Under California law before Proposition 36, any felony is sufficient to be a third strike.

As a result, there are hundreds of individuals serving life sentences for possessing small amounts of drugs or even for shoplifting. Under California law, petty theft – stealing less than $400 of money or merchandise – is a felony if a person has a prior felony conviction for a property offense.

As a result, individuals have been sentenced to life in prison under the three strikes law for stealing a slice of pizza or a pair of batteries or a handful of videotapes.

For example, my client, Leandro Andrade, was sentenced to life in prison with no possibility of parole for 50 years for stealing $153 worth of videotapes from K-Mart stores. He received this sentence under California's three strikes law even though he had never committed a violent felony. His only prior convictions were for three burglaries of unoccupied homes that occurred many years earlier.

Without Proposition 36, Andrade would not be eligible for parole in 2046 when he will be 87 years old. Under Proposition 36, he is now eligible for re-sentencing.

Tragically, the current law put so many others in his situation. And it made no economic sense: it costs an average of $47,000 per year to incarcerate a person in California.

The independent Legislative Analyst estimated that adopting Proposition 36 will save California at least $70 million a year, and this amount will increase in the years ahead as the number of prisoners increases and as the prisoners age and require more care.

At a time when our schools are starving for money, it makes no sense to lock up shoplifters for life.

Even more importantly, it makes no sense in terms of basic human decency.

Non-violent people are separated from their families and communities, denied the opportunity to be productive citizens, and warehoused in overcrowded prisons for minor crimes. The human toll on these individuals, their families, and their communities is enormous.

Many studies have shown that three strikes laws have no measurable effect in deterring and decreasing crime.

Under District Attorney Steve Cooley, Los Angeles County did not use the three strikes law for minor crimes like shoplifting or possessing use quantities of drugs.

Yet Los Angeles County has had a significant decrease in crime, equal to or better than any place in California.

Besides, Proposition 36 does not repeal the three strikes law. It keeps the law, but modifies it to require that the third strike be a serious or violent offense. There certainly is no evidence that punishing minor offenses with life in prison serves any purpose.

Proposition 36 is not a get-out-of-jail-free card for predators or prisoners.

Under the initiative, approximately 4,000 men and women who have been sentenced for non-violent and non-serious crimes, will be re-sentenced retroactively if a judge determined that doing so poses no risk to public safety.

Also, resentencing is not available to those whose first or second strike was a violent crime. No rapists or murderers would be eligible for relief under the law.

In November 2001, the United States Court of Appeals ruled that it was cruel and unusual punishment to impose a life sentence for shoplifting. Tragically, in March 2003, the United States Supreme Court in a five-to-four decision reversed this and in Ewing v. California and Lockyer v. Andrade held that it did not violate the Constitution to put people in life for minor crimes.

It took almost a decade since these decisions, but finally the law has changed. It is a cause for celebration for so many people and their families, and for all who care about justice.

But it is also frustrating that it took so long and at such a high cost in human suffering.

This is the latest in a series of essays by distinguished TCR contributors analyzing the impact of the 2012 elections on criminal justice. Erwin Chemerinsky is Dean and Distinguished Professor of Law at University of California, Irvine School of Law. He welcomes comments from readers.

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