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October 11, 2004 - The Sacramento Bee (CA)

Voters Get 2nd Chance At 'Three-Strikes' Law

By Andy Furillo, Bee Staff Writer

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Ten years after they overwhelmingly passed the toughest-in-the-nation sentencing law for repeat offenders, California voters will be asked Nov. 2 if they'd like to change their minds.

At stake would be the 25-to-life sentences handed down to more than 4,000 inmates for relatively minor felony convictions under the 1994 "three-strikes-and-you're-out" law.

If Proposition 66 passes, those inmates would qualify for resentencing hearings - and probable freedom. Backers of the initiative say the change is long overdue to correct a sentencing structure that is seriously out of whack.

"It's just plain ridiculous, too costly and unjust to lock people up 25 years to life for writing bad checks, making false applications on real estate loans, or stealing golf clubs, shoplifting, or just using drugs," said Joe Klaas, grandfather of Polly Klaas, the Petaluma girl whose 1993 murder widely was seen as catalyzing the "three-strikes" law.

Proposition 66 opponents, however, say the real story behind the inmates with weaker third felonies is their collective history of serious and violent crimes - documented by rap sheets that include at least two prior convictions on heavy charges.

"The short answer against Proposition 66 is that dangerous and violent people will be released from prison who shouldn't be," state Attorney General Bill Lockyer said. "I share the view that as a general matter, putting somebody in prison for life for stealing videotapes sounds like a really bad idea. But there also might have been a very long string of crimes that preceded that conviction, and that pattern justifies a long sentence."

Klaas, who long has championed reform of the sentencing measure, is fronting a movement that includes strong support from the state's public defenders and the American Civil Liberties Union, as well as religious, labor and civil-rights groups.

Their campaign is being financed mostly by a Sacramento car-insurance executive, Jerry Keenan, whose son figures to get out of prison early if the initiative passes. As of late September, the Proposition 66 campaign had raised $1.9 million. Keenan had contributed $1.4 million of that amount, according to the secretary of state's office.

Billionaire financier George Soros contributed $150,000, and his two partners in a national campaign to reduce drug-sentencing laws and other criminal penalties, University of Phoenix founder John Sperling and insurance executive Peter Lewis, also gave $150,000 each.

All 58 county district attorneys in the state oppose Proposition 66, and their advocacy group, the California District Attorneys Association, is leading the fight. Big-name backers of the No on 66 effort include Gov. Arnold Schwarzenegger, Lockyer and Oakland Mayor Jerry Brown. Taxpayer associations, law-enforcement organizations and victims' rights groups also oppose Proposition 66.As of the Sept. 30 filing deadline, the opposition had raised $186,455. Most of that - $149,000 - came from the California Correctional Peace Officers Association.

"We believe Proposition 66 is a lie," said CCPOA Vice President Lance Corcoran. "It's going to put violent criminals back on the street immediately."

Yes on 66 campaign manager Steve Hopcraft said the union's contributions reflect the CCPOA's "narrow self-interest."

"It's jobs and overtime," Hopcraft said.

Launched in the early 1990s in response to increased violent crime, "three-strikes" laws took root in more than 20 states where voters and legislatures sought to fashion sentencing mechanisms that would lock down career criminals for good. California's twist on "three-strikes" allowed the big sentences to kick in on any third felony conviction, even petty theft with a prior offense.

Following the slaying of Polly Klaas by a career criminal, the Legislature passed the tough "three-strikes" law in March 1994, and 72 percent of the voters approved it that November.

Since the law went into effect, 7,458 inmates had been imprisoned on 25-to-life, "three-strikes" terms as of June 30 this year. According to the Department of Corrections, 3,192 of the three-strikers picked up the life sentence for violent, sex and other crimes against people. An additional 2,323 were for property crimes, 1,283 were for drugs and 660 were for other offenses.

About 4,100 of those inmates would qualify for resentencing under Proposition 66, and all future "third-strike" convictions could result only from serious or violent offenses.

Burglary no longer would qualify as a prior "strike" under the law, unless the home was occupied at the time of the break-in. Five other crimes also would be stricken as strikes - attempted burglary, conspiracy to commit assault, nonresidential arson resulting in no serious injuries, criminal threats and interfering with a witness. Gang activity and crimes that unintentionally result in injuries would be eliminated as strike enhancers. The law also would require separate trials for each strike count.

At the same time it seeks to release some "three-strikes" felons, Proposition 66 also proposes to double prison terms on first-time child molesters and give prosecutors the authority to seek life terms on sex offenders whose victims are under the age of 10.

The two sides have sparred over whether the initiative would apply to the 43,000 prisoners serving "two-strike" sentences that doubled their terms. Opponents say it is written in a way that will allow defense lawyers to petition for their clients' freedom. Proponents disagree, and they cite a legislative counsel opinion that concludes the "two-strikers" will be excluded.

The Legislative Analyst's Office predicts Proposition 66 would save the state "several tens of millions" of dollars a year at first. A decade from now, the savings will reach "several hundreds of millions," according to the LAO. But the legislative analysts also say parole costs will be boosted and at least half of the released offenders can be expected to commit crimes and wind up back behind bars. Local jails and courts can expect to spend up to $10 million a year to handle the resentencings and court cases, according to the LAO.

McGeorge Law School professor Michael Vitiello, an opponent of the "three-strikes" law, said there is no substantial evidence it has worked to deter crime. California crime went down 40 percent between 1994 and 2002, but initiative backers such as Vitiello say crime decreased everywhere during that period, and even more so in some states that don't have "three-strikes" laws. They say the money spent on "three-strikes" incarceration could be spent better elsewhere.

"Systemwide, we're making really bad choices about our allocation of resources," Vitiello said. "We could be using the money to develop a more intensive, better parole system, alternatives to incarceration, or we could use more resources to incarcerate younger, more dangerous felons. We should be figuring out how to get the best bang for our sentencing buck."

Jennifer E. Walsh, a criminal-justice professor at California State University, Los Angeles, and a supporter of the "three-strikes" law, said prosecutors have begun to use the law in a more discriminating way.

Judges, since being empowered by the state Supreme Court to review prosecutors' filing decisions, have helped weed out 25 to 45 percent of potential "three-strike" cases and cut down costs, according to Walsh's surveys.

"When they're using discretion," Walsh said, "they are using it on lesser offenders who don't have a violent record, who don't have a history of violence or weapons use, or maybe they're getting older."


What it would do: Redefine the serious or violent felonies requiring increased sentences under the "three-strikes" law and increase punishment for sex crimes against children.

Supporters: Joe Klaas of Citizens Against Violent Crime, California Labor Federation, American Civil Liberties Union.

Opponents: California District Attorneys Association, Gov. Arnold Schwarzenegger, state Attorney General Bill Lockyer.

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