California Could Make ‘Three Strikes’ Less Draconian

By Mark Wilson

Oh, California. Almost twenty years after you passed Proposition 184, the “Three Strikes” law, you want to undo it. California’s Three Strikes law was not the first recidivism statute in this country; those have been around since the common law. It wasn’t even the nation’s first statute to arbitrarily decide that a baseball metaphor should become the basis of recidivist punishment.

What Three Strikes had going for it was that its litigation thoroughly cemented the legality of Draconian recidivist statutes throughout the country. In a pair of cases decided on the same day in 2003 — Lockyer v. Anrade and Ewing v. California — the Supreme Court said that the Eighth Amendment would not be offended if Leandro Andrade were sentenced to 25-to-life for shoplifting $120 worth of videotapes. Nor would The Founders weep from beyond the grave if Gary Ewing received the same sentence for trying to walk out of a pro shop with three golf clubs stuffed down his pants. It’s a rare treat that a statute gets affirmed by the Supreme Court; rarer still that the same statute gets affirmed twice on the same day. I believe the Latin for that situation is super duper stare decisis.

But we’ve learned some things since 1994. One is that violent offenders, whose imprisonment was the focus of Prop. 184 after 12-year-old Polly Klaas was abducted and murdered by a repeat offender, are the least of Three Strikes’ concern. A 2010 report by the California State Auditor found that 53% of inmates in prison because of Three Strikes are there because of a nonviolent, nonserious crime. Another lesson is that California’s prison system is unconstitutionally over capacity. A third lesson is that California is running out of money, and it turns out that keeping prisoners incarcerated for life is really expensive. Together, these lessons tell us that California’s penal system, thanks in part to Three Strikes, is out of control.

With Prop. 36, there’s a middle ground between getting rid of Three Strikes altogether (which any legislator who needs the support of police unions — which is to say, most of them — are loath to suggest) and keeping it. Prop. 36 codifies what Prop. 184 was billed to do: apply to violent offenders, not any offenders. What’s more, Mr. Andrade and Mr. Ewing might get the relief they were denied in 2003, as Prop. 36 requires Three Strikes offenders be re-sentenced.

As with the Death Penalty initiative also on the ballot this year, proponents are addressing the cost to taxpayers of what should be universally recognized as a wasteful incarceration system. Since the 1980s, California’s prison population has jumped 500% and prison spending has gone from 3% to 11% of the state budget. Even though Three Strikes supporters cite the law as influential in declining violent crime, the fact remains that, nationally, violent crime was on the decline before Three Strikes became law and that imprisonment for “violent” crimes remains high in spite of this continuing decline. (Indeed, even in jurisdictions without harsh recidivist punishments, there was — and still is — a decline in violent crime.)

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