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June 7, 2004 - The San Jose Mercury News (CA)

'3 Strikes' Challenge Makes Ballot

Fall Measure's Backers Say Penalties Too Harsh

By Howard Mintz

Return to Drug War News: Don't Miss Archive

California voters will have a chance this fall to decide whether the ''third strike'' in the state's "three strikes, you're out" law takes punishment too far by locking up thousands of prisoners for decades for non-violent crimes such as shoplifting and petty theft.

In an attempt to do what the U.S. Supreme Court would not, backers of reforming the nation's toughest sentencing scheme this week succeeded in getting enough signatures to put a measure on the November ballot that would soften the "three strikes" law.

The initiative, known as the Three Strikes and Child Protection Act of 2004, would primarily require that a defendant be convicted of a violent or serious felony to qualify for a "third strike" sentence of 25 years to life.

Right now, repeat offenders can be sent away for the long prison terms for non-violent third offenses that have included crimes such as stealing videos, pizzas and bicycles. A divided U.S. Supreme Court last year ruled in a 5-4 decision that the law does not amount to cruel and unusual punishment, prompting the push for a ballot initiative.

With the issue likely to hit a chord in a state that has been tough on crime at the ballot box, the campaign will focus on whether the changes would make the law fairer, as supporters argue, or coddle repeat criminals who belong behind bars, as backers of the current law contend.

``We're not being soft on crime,'' said Jim Benson, co-chairman of the group backing the initiative. ``There's not going to be a blood bath. We're not talking about violent criminals, we're talking about minor offenders.''

Mike Reynolds, the Fresno father of a murdered teen who helped write "three strikes," promises a fierce campaign to fight the ballot initiative, saying that it would free thousands of ``dangerous career criminals'' to the streets.

``If this were to pass, it would do an enormous amount of damage,'' Reynolds said.

The ballot initiative covers the most controversial aspect of the "three strikes" law, which was passed by voters 10 years ago in the aftermath of the kidnap and murder of Petaluma youngster Polly Klaas by parolee Richard Allen Davis.

The law was designed to lock up repeat offenders, but it has been criticized because anyone convicted of two violent felonies can be sent away for life for a relatively minor and non-violent third offense.

The Supreme Court upheld the law in two cases involving "third-strikers" who could face life terms for shoplifting videos and golf clubs.

The group backing the initiative includes Joe Klaas, Polly Klaas' grandfather, who has pushed for changing the law to limit it to violent third offenses. The initiative also has been bankrolled by a Sacramento insurance broker whose son is in prison under a separate sentencing law.

Erwin Chemerinsky, a University of Southern California law professor who represented the "three strikes" prisoners in the Supreme Court, points to hundreds of inmates serving life sentences for shoplifting and low-level drug dealing as their third conviction.

``What this is really about is helping that group of people and making sure it doesn't happen in the future,'' Chemerinsky said.

Critics, however, say the initiative would tinker with numerous aspects of the law that could give breaks to serious criminals.

And a study by Douglas Pipes, a Contra Costa County prosecutor and "three strikes" expert for the California District Attorneys Association, found that the ballot measure could free more than 20,000 prisoners, many of whom prosecutors argue belong behind bars.

Prosecutors also maintain that judges have the power to knock out a strike in the ``interests of justice,'' providing protection against abuse of the law in the wrong cases. As a result, most prosecutors have supported keeping the law intact.

Attorney General Bill Lockyer has not yet taken a position on the ballot measure, his spokesman said Friday.

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