#184 Sentence Enhancement. Repeat Offenders.

by John Borland
Copyright 1994, California Journal

The "three strikes and you're out" initiative statute that increases the
penalties for felons convicted of a third crime, or "strike." Background:
"Crime" often is a hot button political issue, but now and then, some
criminal event elevates it to the status of a crusade. Such was the case in
October 1993 when a Petaluma 12 year old named Polly Klaas was abducted from
her home and subsequently slain by an ex con named Richard Allen Davis. The
aftermath of the Klaas killing galvanized the public. Polly Klaas' funeral
became a political happening, with Governor Pete Wilson using the
occasion to deliver a tough on crime campaign speech. The funeral was
packed with politicians, including both of California's U.S. senators
Democrats Dianne Feinstein and Barbara Boxer. Even President Bill Clinton
referred to the tragedy in a speech.

The immediate political beneficiary, however, was not a politician but a
Fresno photographer named Mike Reynolds, whose own daughter had been shot to
death in 1991 by an ex con during a purse snatching incident. In the wake of
his own tragedy, Reynolds had started a campaign to lock up repeat offenders
by increasing their prison time in some cases, to life. Reynolds, who
dubbed his effort "three strikes and you're out," worked with two Fresno
Assembly members, Republican Bill Jones and Democrat Jim Costa, to craft a
bill out of his idea. But their venture came to naught as the original
three strikes bill died before an Assembly Public Safety Committee.

Frustrated by this legislative failure, Reynolds converted his bill into
an initiative and began to gather signatures to place it on the ballot. His
effort attracted little attention until the Klaas kidnapping and its
subsequent crush of publicity. At that point, politicians began scouring for
vehicles upon which to bandwagon their tough on crime attitudes. One who
found Reynolds was Congressman Michael Huffington (R Santa Barbara), a
candidate for the U.S. Senate, who signed on as a sponsor and co chair of the
initiative campaign and seeded Reynolds' activity with money. In addition,
the newly formed Polly Klaas Foundation helped gather petition signatures.

Meanwhile, the public outcry over Klaas' killing helped spark renewed
legislative efforts, with lawmakers nearly trampling themselves to introduce
tough on crime bills. The resultant package of crime legislation included
some half dozen three strikes options. All of them progressed quickly through
the legislative process, but the most vociferous political pressure was
applied on behalf of Reynolds' original bill. Although many lawmakers
thought another version authored by Assemblyman Richard Rainey (R Walnut
Creek), a former Contra Costa sheriff was a better alternative because it
applied only to violent crimes, Reynolds and his legislative allies refused
to compromise. Even though Marc Klaas, father of the slain teenager,
supported the Rainey bill, the Legislature ultimately passed only the
Reynolds bill. Governor Pete Wilson signed it into law.

While this seemingly took away the necessity for the initiative, Reynolds
and his supporters continued their campaign, asserting that they were
safeguarding the law against the bogy of legislative tampering. Several
legislators did try to put an alternative three strikes bill on the ballot,
using provisions from the Rainey proposal and supported by the District
Attorneys' Association. This version would have limited the third strike to
violent or serious felonies and disqualified residential burglary, which
supporters said would save the state billions of dollars. But the governor
made it clear he would veto the effort, and the alternative died.

Proposal: Under the terms of Proposition 184, if a criminal has had one
previous serious or violent felony conviction, the mandatory sentence for a
second such conviction is doubled. After two violent or serious felony
convictions, any further felony, non violent or not, will trigger a third
strike; the mandatory sentence will then be the greater of: 1) three times
the term ordinarily required, 2) 25 years, or 3) a term determined by the
court. Crimes committed by a minor of at least 16 years of age count as
strikes. The amount of credit that a second or third strike felon can apply
towards eventual release is reduced from one half to one fifth, and probation
is not an alternative. The Department of Corrections has estimated that about
$20 billion will be needed over the next 10 years to build prisons to house
three strikes prisoners. Additional operating costs are estimated to start at
about $200 million in 1995 96, reach an extra $3 billion by 2003, and grow to
about $6 billion annually by 2026.

Arguments for: Major proponents of Proposition 184 include the National
Rifle Association, the California Correctional and Peace Officers'
Association, and Michael Huffington, all sponsors with lots of money. They
argue that a small percentage of criminals commit a disproportionately high
percentage of crimes. By locking up these repeat offenders, proponents say,
the crime rate will fall substantially, both through the prevention of crimes
and through a strong deterrent effect on would be offenders. The costs of
incarcerating these people for near life sentences will more than be offset
by savings produced by preventing potential crimes.

Argument against: Opponents, including Marc Klaas, the head of the Klaas
foundation, and San Francisco's Center on Juvenile and Criminal Justice, say
that the initiative's net is spread too wide; that it will lock up more
non violent offenders than violent. The result will be a huge drain on the
taxpayer resources, requiring cuts in other services. There also are
questions about the measure's constitutionality, particularly the provision
that treats past juvenile crimes as strikes. Since juveniles are not given
jury trials, this is viewed as a serious flaw. Several judges have refused to
enact the law's provisions, claiming that the inflexible sentence
enhancements are in violation of the ban on "cruel and unusual punishment."
Finally, opponents point to the fact that the initiative does nothing to
change existing law.


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