Second thoughts on three strikes

Although popular in the polls, the reform initiative is causing controversy

Mandy Brazell, whose fiancé is a casualty of California’s three-strikes law, has become an activist for its reform.

Mandy Brazell, whose fiancé is a casualty of California’s three-strikes law, has become an activist for its reform.

Photo By Larry Dalton

When Sacramento resident Mandy Brazell’s fiancé, Teddy Baldwin, was in his early 20s, he was sent to prison twice: first for burglarizing a house, and later for breaking into a car. After that, he learned his lesson and stayed out of trouble for several years after his release. But then, Brazell said, his son died of leukemia, and Baldwin slipped back into the grip of a cocaine addiction. In short order, he was arrested on drug charges.

“He did something wrong, and he deserved punishment,” said Brazell, a slight 21-year-old with pale-blue eyes and blond hair pulled back in a bun. “He should have got five or six years.”

Instead, Baldwin was sentenced last January to 25 years to life in prison—another petty criminal caught in the sweeping net of California’s “three strikes” law.

Enshrined in a 1994 ballot initiative, the law mandates a double sentence for anyone convicted of a second serious or violent felony, and 25 years to life for conviction of a third felony—any felony. While it has taken many hardcore criminals off the streets, thanks to that wide-open wording, the three-strikes law also has swept up hundreds of minor offenders for transgressions as picayune as drug possession or shoplifting.

But this year, the law may be reined in by the very people who put it in place: California’s voters. An alliance of criminal-justice-reform groups have placed an initiative on the November ballot to remake the law into what voters thought it was in the first place: a statute that would send only violent or genuinely serious third-time offenders away for life.

Polls show tremendous support for the reform measure, despite some controversy about the source of the funds that got it on the ballot. Earlier this month, the Los Angeles Times broke the news that most of the cash was put up by a Sacramento businessman who appears to have a very personal motive for wanting to see three strikes watered down.

Since 1994, more than two dozen states have passed some kind of law that mandates 25-years-to-life imprisonment for third-time felony offenders. But California’s is by far the most extensively used and broadly worded. According to a recent study by the Justice Policy Institute (JPI), a Washington, D.C.-based sentencing-reform group, more than 42,000 prisoners—more than one-fourth of the state’s total—are serving doubled or 25-to-life sentences under three strikes. Nearly two-thirds of them are doing time for a nonviolent offense. That number includes more than 1,000 inmates serving 25 years to life for thefts of less than $400 or for drug possession. Some of their crimes practically define the word petty: One man is doing 31 years for stealing a pair of AA batteries; another got 25 years for shoplifting three packs of J.C. Penney T-shirts.

Keeping all those third-strikers locked up for so long costs taxpayers millions of dollars every year. It costs about $28,000 a year to keep the average convict in prison, and the price goes up as a prisoner ages and his or her health deteriorates. The state legislative analyst estimates that the reform initiative could save Californians “from several tens of millions of dollars to several hundreds of millions of dollars annually due to lower prison operating costs.”

Still, the bottom-line question for most people is: Does three strikes make us safer? The evidence is, at best, ambiguous. The state’s crime rate has gone down dramatically since 1994—but so has crime nationwide. Most experts chalk that up to a combination of factors, including changing demographics that temporarily have lowered the number of young men—the most crime-prone group—in the population, the waning of the violent crack trade, smarter policing techniques and the formerly booming economy.

Moreover, the JPI study found that California counties that used the three-strikes law less often saw violent crime drop by an even greater margin in the last 10 years than did counties that use three strikes more often. And crime in New York, which has no three-strikes law, dropped even more than crime in California in the same period.

But the law’s supporters aren’t impressed. Former Secretary of State Bill Jones, who co-authored three strikes and is gunning for Democrat Barbara Boxer’s Senate seat this year, maintains that “there are tens of thousands of fewer crime victims and thousands of individuals alive today due to this vital law.” Fresno resident Mike Reynolds, who helped author the statute after his daughter Kimber was murdered by a drug-addled mugger with several prison stints under his belt, points to FBI statistics showing that crime fell further between 1993 and 1998 in California than in any other state except New York. (Those same statistics, however, also show that some states without three-strikes laws outpaced California in reducing violent crime.)

“The difference in California is three strikes,” insisted Reynolds. “If the economy had anything to do with crime, crime should have been going up like a bullet during these terrible last few years.”

And as for the cost of keeping prisoners locked up, “There’s also a cost to letting them out,” said Reynolds. He estimates that three strikes has prevented millions of crimes from being committed, saving the state’s residents billions. “You’re going to see a wholesale bloodbath if this passes,” he insisted.

Three strikes swept into law at a time when fear of crime was a national obsession, inflamed by the murder of Polly Klaas, a 12-year-old Petaluma girl kidnapped from her bedroom by veteran criminal Richard Allen Davis. From the first, critics have decried the law as overly broad. No fewer than nine bills have been introduced in the state Assembly to moderate three strikes—each one killed or vetoed. The law also has run the gauntlet in the courts. Though a federal appeals court deemed it unconstitutional, the U.S. Supreme Court overruled it, declaring last year that the 25-to-life sentences given to a man who stole nine videocassettes and to another who filched three golf clubs did not constitute “cruel and unusual punishment.”

This November, California voters will make that judgment for themselves. An Orange County-based outfit called Citizens Against Violent Crime (CAVC) spearheaded a drive to gather enough signatures to get the reform initiative on the ballot. The new initiative would make only violent and specific serious crimes count as strikes. It also would allow inmates convicted of minor offenses to appeal their second or third strikes, meaning some could have their sentences reduced or could even be released.

“Our goal is not to eliminate the law, but to make it balanced and fair,” said CAVC Vice Chairman Jim Benson. Benson voted for three strikes in 1994 but says he didn’t realize what its real impact would be. “A lot of us thought we were voting for a law targeting violent, heinous criminals like Richard Allen Davis, not someone who steals a loaf of bread from a food pantry,” he said.

Benson certainly seems to have a lot of company. A statewide Field Poll earlier this month found that 76 percent of likely voters support the initiative, officially dubbed the “Three Strikes and Child Protection Act” (it also would boost penalties for child molesters). The enthusiasm cuts across party lines: 80 percent of Democrats and 74 percent of Republicans said they would vote yes.

Californians aren’t the only ones rethinking harsh sentencing statutes. In the past three years, some half-dozen other states have either abolished or limited their own mandatory sentencing laws, primarily because they can no longer afford to keep so many people locked up in these bleak fiscal times. California already has embraced the same logic, though not yet that tactic; the state has announced plans to soften the rules of the parole system, with an eye toward lessening the number of offenders who wind up back behind bars.

Much of the cash funding the CAVC’s campaign—some $1.56 million, according to the Los Angeles Times—was donated by Jerry Keenan, a Sacramento insurance broker. Keenan has a very direct interest in California’s criminal- justice system: His son Richard currently is serving eight years in Folsom State Prison for taking some friends for a spin in his gold Lexus coupe after an evening of beer drinking and marijuana smoking—a ride that wound up with the car totaled, two of its passengers dead and another seriously injured. If the reform measure passes, Richard’s sentence potentially could be reduced.

In a written statement faxed to reporters, the Keenans declared: “California’s Three Strikes law does not distinguish between a pizza thief and a murderer. We don’t think that’s fair and believe the law should be fixed and restored to reflect the original intent and representations of its proponents—ensuring that truly violent and serious criminals are kept off of our streets. … Our son’s accident was not a violent or intentional act. No one should be faced with the prospect of a doubled or 25-years-to-life sentence because of nonviolent acts, let alone accidental acts. It will be up to the courts to decide if this initiative will affect him.”

Richard, of course, wouldn’t be the only inmate who stands to be released sooner if the measure passes. The California District Attorneys Association estimates that as many as 25,000 inmates could see their sentences drastically reduced if the initiative passes.

Prosecutors and other law-enforcement groups are lining up against the measure. “This initiative constitutes the most dangerous piece of criminal-justice legislation to confront the people of California in the past 30 years,” writes L. Douglas Pipes, a Contra Costa County deputy district attorney. “I believe that the resounding defeat of this initiative should be the single highest priority of every law-enforcement agency and officer and of all law-abiding citizens of California.”

“I think the average Californian is happy with three strikes,” Wayne Strumpfer, a spokesman for the California District Attorneys Association, recently told The San Diego Union-Tribune. “People like to be safe, and three strikes makes us safe.”

Strumpfer’s second point is debatable. His first, however, will be settled in November.