Prop 36: Three strikes to bankruptcy

by Leonardo Castaneda

In the 2002 cinematic masterpiece “Minority Report,” Tom Cruise portrays a police officer tasked with stopping pre-crime. With the help of triplets capable of seeing the future, Chief John Anderton (Cruise) and company fly about in jetpacks stopping murders before they happen. The technology in the movie—which involved freshly carved wooden balls with the name of the victim etched on them— might be straight out of a science fiction novel, but stopping crime before it happens is a real-life goal for the California judicial system.

In 1994, California voters reeling from a series of gruesome murders approved a three-strikes law toughening punishment for repeat criminals. The law was intended to prevent crime before it happened by imprisoning felons tagged as likely repeat offenders for much longer sentences. In theory, individuals who had already committed a crime in the past would likely commit more in the future, so keeping them behind bars indefinitely would stop crime before it happened. Now, Proposition 36 is asking voters to roll back the most extensive provision of the three-strikes law.

With the three-strikes law, an individual convicted of a felony faces double the mandated prison sentence if he or she has ever committed a violent or serious felony, regardless of whether the new crime is serious or violent. If someone has two serious or violent felonies on his or her record, the third “strike” has a mandatory 25-to-life sentence, even if the third offense isn’t serious or violent. So-called strikers are not eligible for parole. They can also only reduce their sentences for “good time” (through good behavior, work and education programs) by one-fifth, as opposed to the normal one-half reduction avilable for non-striker convicts.

Proposition 36 would limit the stricter third-strike penalty to repeat offenders whose third felony is serious or violent. Individuals already in prison whose third strike is not violent or serious would be eligible for resentencing if a judge determines their release doesn’t pose a threat to society. Conservative estimates place initial state savings at $70 million annually, with the potential of up to $90 million saved per year during the next few decades.


Today, a quarter of all prisoners in California incarcerateds for a second or third-strike offense, about half of those for nonviolent and non-serious repeat felonies. This means one out of every eight prisoners in the state will serve significantly longer prison sentences than their crime calls for. Despite massive restructuring, California’s grossly overcrowded prisons are currently operating at 155 percent capacity. That means a lot of convicts could be out of jail without serving any less time than they should.

Because strikers are sentenced to much longer prison stays, they are older than the average prisoner. These elderly inmates cost two-to-three times more to house according to the California Legislative

Analyst’s Office. Because no prisoner sentenced under the third strike law will be eligible for release until 2019, the cost of imprisoning strikers will only continue to rise. By 2009, the longer prison sentences created by the law had cost the state a total of $19.2 billion, of which $7.5 billion was for criminals convicted of nonviolent and nonserious felonies, according to the California Department of Corrections and Rehabilitation.

Clearly, California’s government can save hundreds of millions by rolling back the most punitive measures of the three-strikes law. This is money that can help prevent cuts to the California State University and University of California systems, as well as many services aimed at helping the poor and elderly.

Still, a law designed for public safety shouldn’t be judged exclusively by its cost, but also by how much safer it has made California’s citizens. In the years since voters approved the three-strikes law, California has experienced an unprecedented drop in the crime rate. It’s undeniable people in the state are safer today than in 1994. However, it’s not clear the three-strikes law had anything to do with this. The decline in the crime rate began before 1994 and was experienced throughout the U.S.

A report done more than a decade after the start of the three-strikes law, from the LAO, tried to determine the impact of the law on public safety. Prosecutors have some leeway in charging suspects using three-strikes, so the LAO compared the four counties most likely to use three strikes (including San Diego), with the four counties least likely to use it.

All eight counties had approximately 37 percent decreases in crime, suggesting the three-strikes law was not a factor. From 1994 through 2003, the violent crime rate in counties least likely to use three-strikes fell by an average of 45 percent, compared with an average decline of 44 percent in the counties most likely to use it. Essentially, the analysis showed three-strikes had cost the state unsustainable amounts of money, without any evidence showing it had made the state safer.

In the end, the goal of the California justice system should be to impose sentences that fit the crime. Sentencing someone to 25-to-life for a minor felony, which would otherwise carry a two or three-year sentence, makes no sense and is inherently unfair. Prison time should punish specific crimes, not perceived criminal patterns. If public safety advocates are worried about criminal recidivism, the state should allocate some of the money it’ll save thanks to Proposition 36 toward drug rehabilitation, therapy and job training for newly released convicts.

In “Minority Report,” the pre-crime program is shut down when it becomes apparent there is a small chance innocent individuals are being imprisoned for crimes they would have never committed. California is currently sentencing people to a lifetime in jail because of some unproven notion their previous actions indicated an inevitable criminal pattern. Proposition 36 ensures the punishment is proportional to the crime, murderers and rapists remain behind bars and minor offenders are given a second chance before they are condemned to rot in prison.