Civil Liberties

Striking Injustice

California sentencing reform


In 1994 California voters overwhelmingly approved Proposition 184, a.k.a. "Three Strikes and You're Out," which was supposed to protect the public from violent criminals by keeping repeat offenders behind bars. But the law ended up ensnaring many nonviolent offenders as well, effectively dictating life sentences (with parole possible after 25 years) for minor crimes such as theft or drug possession.

Proposition 36, an initiative on this November's ballot, aims to address that problem by requiring that a "third strike," the conviction that triggers a mandatory life sentence, be a "serious or violent" crime. Under current law, only the first two strikes have to fall into that category, while the third strike can be any felony, including "wobbler" offenses that are often charged as misdemeanors. The upshot is that someone who has already served time for two different burglaries can go to prison for the rest of his life after being caught with stolen property or even a bag of marijuana. "There's a shocking number of people whose third strike is simple possession," says Stanford law professor Michael Romano, co-author of Proposition 36. 

Under Romano's measure, about 3,000 inmates who are serving life terms for nonviolent offenses could be resentenced, provided a judge determines that doing so would not pose an "unreasonable risk to public safety." Prisoners who had previously been convicted of rape, murder, or child molestation would not be eligible.

Those two safeguards make the initiative more politically palatable than a 2004 reform measure that lost by about five percentage points. That initiative also would have reclassified some burglaries as nonviolent crimes and modified the rules for enhanced sentences that apply after the second strike.

Romano says the narrower approach has paid off, winning "the support of some of the highest-ranking law enforcement officials in California," including Los Angeles Police Chief Charlie Beck and Los Angeles County District Attorney Steve Cooley. A July survey by the California Business Roundtable found that 72 percent of voters were inclined to vote yes on the initiative, which Romano says "would restore what was the original intent of the three-strikes law."