October 1, 2004


Can Three-Strikes Reformers Finally Win?

By Earl Ofari Hutchinson

The seemingly endless battle over three strikes reform in California is heating up again. California locks up more three strikes offenders than all the other 23 states with three strikes laws on their books combined. The big reason for that is that California is the only one of the three strikes states where a felony for any offense can trigger a life sentence upon conviction.

Three strikes reform proponents are supremely confident that they’ll finally get the state’s law changed in November. Proposition 66 would modify the three strikes law to apply only to serious, violent third offenses. A Field Poll taken in June seemed to justify their confidence. According to the poll, nearly 70 percent of Californians said they’d back the measure.

There’s good reason to shave the rough edge off the three strikes law. Locking up petty thieves and drug users, the overwhelming majority of whom are black and Latino males, for 25 years without the possibility of parole is a blatant violation of the 8th Amendment prohibition against cruel and unusual punishment. Currently, repeat petty crime offenders make up nearly 60 percent of those serving three strikes sentences in California prisons. About 42,000 people are serving time in California under three strikes laws.

Despite the much overdue need for three strikes reform, the battle to get it will not be a cakewalk. The three strikes law has been on the books for a decade, and every attempt to reform it has failed miserably. There are troubling reasons why. Though recent studies and government statistics show that crime has plunged in California, much of the public still regards crime — any crime — as serious. Few make fine distinctions between someone who robs a bank or sells or possesses a small amount of cocaine. The perception is that the cocaine dealer or user of today could be a bank robber or murderer tomorrow. Most believe that it’s better to get them off the streets before that happens.

The majority of three strikes prisoners are behind bars for committing non-violent drug crimes or petty thievery. But most of them have rap sheets that bulge with repeated arrests and convictions for drug use, drug peddling, theft and even robbery. No matter how tragic the circumstances and conditions in their lives that spur them to commit repeat crimes, few people are willing to cut those offenders any slack.

State legislators have also adroitly read the political winds and they know that going to bat for prisoner reform measures is the kiss of death. The few feeble attempts at three strikes reform in the legislature have either languished in or been swiftly defeated in committees. And Democrats even more than Republicans know the risks of appearing soft on crime.

When George Bush Sr. tagged Democratic presidential contender Mike Dukakis during the 1988 presidential election with the soft-on-crime label, it sunk Dukakis’ election bid. Democrats learned the lesson, and vowed that Republicans would never again out-shout them on law and order issues. Former California governor Gray Davis practically stood at the prison gates to make sure no one who committed a violent crime would be released no matter what the circumstances or how much they had redeemed their lives. Gov. Arnold Schwarzenegger, a Republican with a tough-guy rep, is not saddled with that political baggage. In less than a year he has approved the parole of more convicted murderers than Davis did in his five years in office.

Then there are the state’s District Attorneys and top law enforcement officials. The public trusts them to protect and safeguard them. Nearly all DAs and police chiefs in California oppose Prop. 66. Over the next month, as the legion of Prop. 66 opponents roll out their big guns against the initiative, the huge numbers in the Field Poll in support of three strikes reform may evaporate.

But the voters and squeamish legislators sooner or later may be forced to act on prison reform. With more and more prisoners being packed into California’s grossly overcrowded jail cells, the nearly $6 billion the state spends on corrections will soar higher. According to a legislative analyst’s report, three strikes reform could save hundreds of millions in tax dollars in the next decade. For a fraction of the price California taxpayers pay to preserve the current three strikes law, drug treatment and job-training programs would help many small-time offenders turn their lives around, and keep them out of jail.

The three strikes law has helped keep many violent criminals off the streets. But there are thousands of others who don’t fit that category who are currently warehoused in California prisons. That’s a heavy a price to pay to keep a law on the books that can and should be reformed.

Hutchinson a political analyst and the author of “The Crisis in Black and Black.”

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