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Are We Going To Water Down "Three Strikes And You're Out?"

Guest Columnist and District Attorney Michael Keitz has something to say about Proposition 36.

As we approach the general election on November 6th, there are numerous initiatives to consider. Notable among them is Proposition 36, which is touted as a “reform” of the “Three Strikes and You’re Out” law. Remarkably, in 2004 a similar “reform” of Three Strikes was defeated by the voters.

Proposition 36 would radically water down the Three Strikes sentencing laws, and thereby negatively impact public safety. It is for this reason that I, along with the California District Attorneys Association, oppose this measure.

For those who are unfamiliar with the background of the Three Strikes law, it was enacted in 1994, from a grass roots effort spearheaded by a father, Mike Reynolds, following the murder of his beautiful 18 year old daughter Kimber in the streets of Fresno.

The murderer was a 25-year-old man who was described by police as a hard-core user of methamphetamine, who frequently had been jailed on gun and drug charges. Only two months previously he had been released from state prison after serving time for auto theft.

Before Kimber’s murder, he was wanted for a series of robberies and assaults. The “Three Strikes and You’re Out” sentencing law was intended to stop habitual felons, such as the one who viciously murdered Kimber Reynolds, from continuing to commit new crimes.

As the Three Strikes law stands now, when a criminal who has previously committed two or more serious or violent felonies commits any new felony (the “Third Strike”), that criminal becomes eligible to be sentenced to state prison for 25 years to life. The rationale behind this, is those who have previously been convicted for two or more serious or violent felonies, yet chose to commit additional felonies of any type, are habitual offenders and thus a substantial risk to public safety.

Proposition 36 would change sentencing requirements so that only the commission of a “serious or violent” felony (not any felony) will be eligible to constitute the Third Strike.

You may ask, why would anyone propose to allow habitual felons access to the streets and the opportunity to commit more crime? The answer, according to the voter ballot and initiative backers, is that such a change will reduce the costs of incarceration by sending fewer criminals to prison, which is becoming overpopulated with those sentenced under the Three Strike law, and prevent the state from having to pay medical costs for them as they grow older.

Also, the supporters of this initiative believe that too many people are committed to prison for life when their Third Strike was merely a petty theft. These arguments however, are flawed when the true facts become known.

Facts about Three Strikes Prison Populations

It is helpful to review statistics from the California Department of Corrections and Rehabilitation pertaining to the inmates sentenced under Three Strikes (“Third Strikers”).

As of September, 2012, the total State prison population was 134,868 inmates. The number of Third Strikers currently in prison is 8,873, or just 6.6 % of the prison population. Interestingly, 83% of the Third Strikers were sentenced prior to 2003.

Since 2003 only 1,493 have been sentenced as Third Strikers. Each year the number of persons given Third Strike commitments has declined. In fact, the number of new commitments has gone from 3.2% in 2007 to 1.4% last year. Clearly, the Three Strikes law is not the main source of new inmates in our prisons. Neither are Third Strikers responsible for an aging population within the prison system. Of the entire Third Striker population in prison, only 10.2% are 60 years old or more. And of that, less than 3.6% are over 65.

Most of the Third Strikers will have the opportunity to parole back into society prior to reaching 65 years of age. There will always be aged inmates in the prison system. But, to say that Third Strikers are responsible for inordinate health care costs does not present the picture fairly.

Commission of a petty theft can only be charged as a felony if the person has a history of prior petty thefts. Again, those who have previously been convicted for two or more serious or violent felonies, yet chose to commit additional felonies, are habitual offenders and thus a risk to public safety.

However, despite the exaggerated claims of the supporters of Proposition 36, the number of persons committed to state prison as Third Strikers for petty theft, as of June 2012, is 327, or less than 4% of the Three Strikes population. Additionally, a Third Striker who commits simple drug possession can, under certain circumstances, apply for probation and drug treatment in lieu of a Three Strikes sentence.

Safeguards of the Present Three Strikes Law

The justice system has safeguards to prevent sending a non-deserving felon to prison for life under Three Strikes. All District Attorneys have discretion to evaluate the cases before them and decide whether the current crime committed by a Third Strike candidate should be filed as a misdemeanor or felony. If it is filed as a misdemeanor, the Defendant would not be prosecuted under the Three Strikes law.

Further, if the District Attorney decides the case should be filed as a felony, he or she can choose to withhold filing one or more strikes to prevent the imposition of a 25 year to life sentence.

Similarly, when a Three Strikes case comes before a judge, a defendant may file a motion asking the court to reduce the case from a felony to a misdemeanor. Another safeguard is for the defendant to file a special motion to ask the judge to remove one or more prior strikes to prevent the imposition of a life sentence.

Should a Third Striker’s case go to trial, the defendant is allowed twice as many peremptory challenges to dismiss jurors as are allowed other defendants. As an added safeguard, the decisions of the court are subject to review by the appellate courts for error or abuse of discretion. Consequently, there are ample protections to make sure only the most deserving of felons are sentenced to a 25 year to life sentence in state prison.

Major Public Safety Consequences of Proposition 36

There are very serious consequences of Proposition 36. If the proposition passes, the discretion of the District Attorney to utilize the Three Strikes tool to remove criminals who pose significant risks to society will be lost, just because the most recent felony was not serious or violent.

This would mean that the habitual offender (who has already been convicted of two serious or violent felonies) will be given yet another opportunity to rob, murder or rape more victims before being sent to prison. Recall that California enacted Three Strikes in order to prevent this very tragedy. Further, Proposition 36 allows those already incarcerated under Three Strikes to petition the courts for early release, if the Third Strike they were sentenced on was a non-violent, non-serious offense.

Based on the prison Three Strikes population, some 4,300 inmates stand to be released early if Proposition 36 passes. It is not difficult to imagine the impact an addition of more habitual criminals to an already overloaded justice system will have: more crime. However, the supporters of the proposition have failed to account for, or even acknowledge, the cost and burden to victims and society of additional crime.

Three Strikes is Working to Protect Californians

You have heard the saying, “If it isn’t broken, don’t fix it.” Three Strikes is not broken and it works.

In 2010 the San Francisco based Golden Gate University published a Law Review article on Three Strikes sentencing – “Career Criminals Targeted: The Verdict is in, California’s Three Strikes Law Proves Effective.” This independent study examined and concluded that Three Strikes has served to deter the commission of crime, as well as to incapacitate habitual offenders.

In fact, in the first 10 years following passage of Three Strikes in 1994, crime decreased approximately 45%. Additionally, according to the Attorney General, between 2005 and 2010, violent crime declined over 17%; homicides decreased 30%; arson dropped 38%; property crimes declined 22%, and theft crimes decreased 16%.

Finally, the “Three Strikes and You’re Out” 15-Year Report shows an average of 1,000,000 serious or violent crimes were prevented every 5 years, and 10,000 Californians were spared from becoming murder victims since its passage in 1994. So successful is the track record of the Three Strikes law, other states followed suit and enacted similar laws.

The bottom line is that the Three Strikes law is working and should remain in effect as is to protect the people of California. Please join me in voting “NO” on Proposition 36.

Respectfully Submitted,


District Attorney for Madera County

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