Californians this November will have the opportunity to Vote Yes on 36, a ballot measure that would reform the infamous three-strikes sentencing law. The law was sold to the public in the 1990s as a way to keep incorrigible sex offenders behind bars, but in actuality, any petty offense may be the third crime that triggers the life sentence, resulting in many individual miscarriages of justice as well as toxic prison overcrowding.
In the October/November newsletter of Families to Amend California’s Three Strikes (FACTS), prisoner Kenneth G. Keel offers a detailed overview of the law’s history and tragic consequences. Representing himself at trial, Keel was sentenced to 25-to-life for a petty theft from K-Mart. In prison, he has earned a GED and completed an accredited paralegal studies program, and currently provides free legal assistance and literacy tutoring to other inmates. An excerpt:
California’s “Three Strikes and You’re Out sentencing law” (3-Strikes) was passed by the Legislature (AB-971) and voters (Prop. 184) in 1994. The Yes on Prop 184 campaign, mostly funded by the prison guards union (CCPOA), exploited the high-profile abduction, sexual assault, and murder of 12-year-old Polly Klass (RIP) from Petaluma to advertise and market their initative. The Public’s outrage, hoping to eradicate child molesters, rapists and murderers led to an overwhelming majority (72) voting for Prop. 184.
Ironically, many people still do not realize that predators who pose the greatest danger to society get preferential treatment because they are not sentenced under 3-Strikes. For instance, this author’s non-violent petty theft with a prior was “doubled-counted” to transform the misdemeanor into a felony, and then used as the basis for a life sentence. On the other hand, when petty theft is committed after prior convictions for heinous crimes, including child molestation, kidnapping, rape, torture, mayhem, murder and terrorism, then the petty theft can only be charged as a misdemeanor, and cannot trigger any 3-Strikes enhancements. So, for example, if this author’s prior convictions had been for kidnapping, child molestation, and murder, instead of non-injury robberies, then he could not have been sentenced to 25-years-to-life for petty theft. Rather, only probation or a maximum 12-month county jail sentence would have been possible.
Also unknown to many voters, 3-Strikes is applied in an arbitrary and inconsistent manner among different counties and within counties. For example, when this author was sentenced, the District Attorney (DA) sought life sentences in most “Third Strike” cases. Two years later, a different DA was elected and L.A. County’s 3-Strikes policy was greatly changed. Thus, if this author would have been sentenced in 2000-2012, instead of 1998, he would not have received 25-years-to-life for his non-violent property crime.
At the same time, 3-Strikes has disproportionately targeted the poor and people of color.
More than 70 of the 3-Strikes prisoners serving life sentences are either African-American or Latino…The unintended and costly consequences of 3-Strikes are enormous! These are a few examples: only the 2 prior convictions (strikes) need to be serious or violent; misdemeanor conduct (wobblers) can trigger a third-strike; plea agreements made 1-50 years before 3-strikes was enacted count as strikes; some juvenile offenses count as strikes; many out-of-state cases are strikes; all Three Strikers must serve 100% of their sentences and 80% of all consecutive enhancements; the warehousing of thousands of non-violent 3-strike inmates has, in part, been the cause of severe prison overcrowding in the California prison system; the U.S. Supreme Court has recently ruled that California’s overcrowded prisons contributed to one inmate death a week; the State Bureau of Audits has estimated that the additional years 3-Strikes prisoners are serving will cost California tax payers $19.2 billon dollars; and various criminologists have found that 3-Strikes does not protect public safety as advertised…
On November 6th California residents will have another opportunity to amend 3-Strikes.
Prop. 36, which is more conservative than Prop. 66 was, pledges to close the loophole and “restore the original intent of California’s Three Strikes law–imposing life sentences for dangerous criminals like rapists, murderers, and child molesters.” If approved by the voters, only about 3,000 out of 8,800 imnates now serving life sentences for non-serious, non-violent, and non-sexual offenses will be eligible to apply for re-sentence consideration. Re-sentencing is not available for felons serving life for a “non-serious, non-violent third strike, if the prior convictions were rape, murder, or child molestation.” On a case-by-case basis, a judge must determine that re-sentencing would not pose an unreasonable risk to public safety.
Prop. 36 is supported by a bipartisan group of law enforcement leaders, prosecutors, civil rights organizations, etc. It was drafted by attorneys at Stanford Law School and the NAACP Legal Defense Fund, in consultation with law enforcement officers. In an interview, David W. Mills, a Stanford Law School professor and private investment manager, stated that his interest in 3:-Strikes is based upon his long-term interest in civil rights. Professor Mills said, that the “dramatic effect on poor people and African-Americans” makes 3-Strikes one of the leading civil rights issues of today. (Sacramento Bee, August 22,2012, Page All.)
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While only my California readers can vote on 36, anyone can donate to FACTS to support their courageous work in defense of the unfairly incarcerated. California’s example is also worth studying if your state has or is considering a three-strikes law. Massachusetts readers, please contact your representatives to oppose the three-strikes proposal that has been debated in the legislature this year.