Are we still tough on crime?

Initiatives could change how Californians view law and order

Proposition 36 would modify California’s three-strikes law and permit prisoners to apply for re-sentencing. Experts say this will dramatically change the state’s approach to criminal justice.

Proposition 36 would modify California’s three-strikes law and permit prisoners to apply for re-sentencing. Experts say this will dramatically change the state’s approach to criminal justice.


Don’t believe the cable-news chatter about California being some bastion of weak-tea liberal values. When it comes to our criminal-justice system—and its penchant for mandatory-sentencing guidelines, gang enhancements and the death penalty—the Golden State is as red meat as they come.

“It’s remarkably out of sync with the rest of the country,” contends University of the Pacific McGeorge School of Law professor Michael Vitiello.

Which is why two initiatives on this November’s ballot are raising some eyebrows. The impressively funded, broadly supported Proposition 36 aims to modify a three-strikes law that voters overwhelmingly adopted way back in 1994. Specifically, Prop. 36’s authors want to make sure that anyone going away for 25 years to life on a third-strike conviction is being prosecuted for a serious or violent offense rather than for something like stealing videotapes.

Proposition 34, meanwhile, is taking on the death penalty itself—not because it’s unethical for a government to execute its own citizens, but because it’s too damn expensive. A study last year by former prosecutor and federal judge Arthur L. Alarcon says it has cost California roughly $4 billion to snuff out 13 death-row inmates since voters reinstated capital punishment in 1978. Prop. 34 promises to save hundreds of millions of dollars a year, and put a chunk of that toward solving more murders and rapes.

Likewise, Prop. 36 makes its case on largely pragmatic grounds, with proponents dangling the juicy carrot of $70 million to $90 million in projected annual savings if the measure passes.

With two ballot initiatives that fly in the face of the accepted “tough on crime” paradigm, the question becomes whether California is experiencing something of a sea change when it comes to its counterintuitively hard stance on crime and punishment.

“I see only a weak trend, not one that’s going over a cliff,” observed Vitiello, an expert on sentencing reform.

Lumping the two propositions together to form such an argument is dicey, Vitiello added, because one measure is a serious re-examination of how fairly the criminal-justice system acquits itself, and the other is about not killing bad people. Which doesn’t have a chance. Sorry.

Despite some big-name endorsements and a $5.5 million war chest, support for repealing the state’s death penalty and replacing it with automatic life sentences is trailing by an eight-point margin, according to the latest polling data from the California Business Roundtable and Pepperdine University School of Public Policy.

The odds of modifying the current three-strikes law are much more favorable, however. Tracking of that initiative by CBR/PU shows current support at 81.1 percent, and has never dropped below 71.7 percent.

“The three-strikes initiative really looks like it has a chance to pass,” Vitiello said.

This time around, district attorneys in the counties of Los Angeles, San Francisco and Santa Clara have thrown their support behind the reform effort, which has raised $1.8 million to the opposition’s $100,000. And the two Stanford University law professors behind this year’s model crafted the measure in such a way that perpetrators of certain nonviolent, non-serious crimes involving sex, drugs or guns won’t benefit from the law’s modified sentencing mechanisms.

That doesn’t mean there aren’t those who still think the initiative is a terrible idea.

If adopted, the law would be retroactive, meaning someone like 25-to-lifer Leandro Andrade could petition the court to re-sentence him for the 17-year-old crime of filching $150 worth of videotapes in Southern California. Andrade is in the unique position of being a poster child for each side of the Prop. 36 debate.

The California District Attorneys Association—which, ironically, opposed three strikes back in 1994—released a position paper this month citing Andrade as someone with “a horrific criminal history” who might be sprung early if the ballot measure passes. A U.S. military veteran who has struggled with drug addiction, Andrade saw his case go all the way to the Supreme Court in 2003; the high court upheld a 50-year sentence for Andrade, who had multiple prior convictions for residential burglary and drug trafficking before stealing a total of nine videotapes from two different Kmart stores in San Bernardino County in 1995.

Cases like Andrade’s raise the question of how fairly three strikes is being applied around California. Sacramento County District Attorney Jan Scully, who came out against changing the current law, said in an April 26 statement the law was being used “very judiciously by prosecutors and judges throughout the state.”

Those who work for her agree.

“It’s not that disproportionate at all,” said Assistant Chief Deputy District Attorney Steve Grippi. “To the degree that it is, that’s why district attorneys are elected by the public.”

A lack of uniformity in applying three strikes isn’t necessarily a problem to be fixed, both Grippi and Supervising Deputy District Attorney Anne Marie Schubert argue.

“You’re always going to find examples of different deals,” offered Schubert. Some communities might pass laws that say no homeless people within 300 feet of schools, she said by way of example, while others might not consider such ordinances. “It depends on the community that you live in.”

Indeed it does. According to California Department of Corrections and Rehabilitation records from September 2011, San Francisco County has a total of 43 three-strikers in prison. A more conservative county like San Bernardino, which has slightly more than twice the population of San Francisco, boasts 625.

The state prison system is currently home to nearly 8,900 three-strikers. The CDAA claims 4,300 of these inmates could be eligible for re-sentencing hearings under the proposed law, but says nothing of the 4,000-plus black inmates that make up a whopping 46 percent of the three-strike prison population.

Grippi agrees that’s a figure that needs scrutinizing.

“I think that’s something that should be studied, definitely,” the prosecutor said. Sacramento County doesn’t tally the ethnic or racial breakdown of its three-strike offenders, Grippi said, because it’s not a consideration that comes into play. The prosecutor admits it wouldn’t be impossible to extract such figures.

Vitiello believes that racial disparity in how three strikes and other criminal penalties—from drug possession to gang enhancements to the death penalty—are applied is one factor nudging a glacial re-envisioning of our criminal-justice system.

The death penalty has been tied up in legal limbo the past few years, and Schubert blames state politicians for ignoring “tons of bills” that could get the death-row conveyor belt moving again. But the outspoken prosecutor isn’t deterred. She believes a fix will eventually come.

“Californians want to be safe, and three strikes makes us safer. The death penalty makes us safer,” Schubert said.