Revise Three-Strikes? At What Cost?

Joseph M. Bessette and Jennifer E. Walsh

In 1995 police in San Diego County arrested a gang member riding in a car with two other convicted felons and a sawed-off shotgun. Only 19 days earlier he had been released from prison after serving his third prison term, most recently for a 1989 gang shooting. He had previously served time for two robberies with a firearm and at least one other felony. Most Californians would likely agree that this is precisely the kind of offender that the state’s three-strikes law, passed by a 72-28% popular majority in 1994, was designed to target and remove from society for a lengthy period of time. And, indeed, prosecutors charged this gang member as a three-strike offender; the court convicted him; and he is now serving a 25- year-to-life prison sentence. But if the proponents of Proposition 66, which will appear on the November ballot in California, get their way, dangerous recidivists like this will no longer be subject to the three-strikes law.

This is because Proposition 66 would dramatically restrict the reach of the three-strikes law by requiring that all three strikes be from a specific list of “serious” or “violent” crimes in the California Penal Code. Current law requires that the first two strikes be from this list, but the third strike may be any felony. It turns out that possession of a sawed-off shotgun is not on the Penal Code list of “serious” or “violent” crimes. Nor are many other crimes that the average Californian would likely consider serious: burglaries of stores and businesses, trafficking in hard drugs to adults, and manslaughter, among others. In addition, Proposition 66 would remove from the Penal Code list of “serious” and “violent” felonies such crimes as many residential burglaries, non-residential arson, conspiracy to commit assault, and participation in gang-related felonies.

Despite the steep reduction in California’s crime rate since the enactment of three-strikes, proponents of Proposition 66 maintain that the law: (a) blindly sentences individuals without considering the circumstances of the offense or the characteristics of the offender, (b) targets minor offenders; and (c) unnecessarily and substantially raises the cost of the state’s prison system. These arguments, however, are based not on the facts of the law’s implementation but on initial speculations about the law might work. Today, a decade of research has proven all of these suppositions to be false.

First, the law does not operate to impose lengthy sentences mechanically and blindly upon all eligible offenders. Little known to the public, the law contains an “escape clause” that allows prosecutors to move to dismiss one or more of the offender’s prior strike offenses “in the furtherance of justice.” In 1996, the California Supreme Court ruled that judges possess the same authority. By evaluating the unique circumstances of each case – such as the seriousness of the current offense, the severity of the prior record, and the length of time between strikes — prosecutors and judges can, in effect, turn three-strike offenders into two-strike offenders. The latest research shows that prosecutors and judges have not been timid in using this discretion: across the state they reduce three-strike offenders to two-strike offenders in 25-45% of all eligible cases.

Two-strike offenders receive a sentence twice the normal length, which is almost always much shorter than the 25-years-to-life required for three-strike offenders. Thus, although we commonly think of three-strikes as a mandatory sentencing law, it does not, in fact, mandate that any offender, or class of offenders, be subject to its tough sentencing provisions.

Consequently, despite the claim of the critics, the law does not target minor offenders. Every three-strike offender must have committed two prior serious or violent felonies in order to be eligible for the enhanced sentence. Many of those who commit less serious third offenses are downgraded to two-strike offenders. As a result, two-thirds of the three-strikers imprisoned since 1994 have been sentenced for a violent offense, arson, burglary, or illegal possession of a weapon. Many of the remaining offenders have been convicted of such so-called “non-serious” offenses as grand theft (120 cases); vehicle theft (235); the manufacture or sale of illegal drugs (250), or the possession of illegal drugs with intent to sell (309).

Finally, supporters of Proposition 66 argue that revising the law will substantially reduce the cost of running the state’s prisons. Yet, this, too, is not based on fact. Although analysts originally predicted that the three-strikes law would add hundreds of thousands of inmates to the state’s prison population in its first decade, in fact less than 5% (7,458) of the state’s 163,500 prisoners are serving three-strike sentences. (Another 20% are two-strike offenders.) If every three-striker were released from prison whose third strike was not one of the Penal Code’s “serious” or “violent” crimes (Proposition 66 applies retroactively), the savings would amount to perhaps 2-3% of the state prison budget, which itself consumes only about 6% of all state government spending.

And what cost would be paid in public safety by releasing dangerous offenders like the gang member mentioned above? California’s three-strikes law does not wait until the proven violent recidivist has raped, robbed, or assaulted again. It comes down hard at the first sign that the offender has resumed his felony career. It sends one simple message to dangerous recidivists in California: “Don’t again commit a felony, any felony!” It is a message endorsed by every District Attorney in the state, by the Attorney General, and by the Governor, all of whom publicly oppose Proposition 66. They understand, as research confirms, that the three-strikes law targets the most serious threats to public safety in California and makes ample provision for adjusting the punishment to fit the crime, and the offender.

Joseph M. Bessette is Professor of Government at Claremont McKenna College and Associate Director of its Henry Salvatori Center. Jennifer E. Walsh is Assistant Professor of Criminal Justice at California State University, Los Angeles, and author of Tough for Whom? How Prosecutors and Judges Use Their Discretion to Promote Justice under the California Three-Strikes Law.

published by the Salvatori Center.
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