California, the state that launched a national get-tough-on-crime movement with its "three strikes, you're out" measure in 1994, is poised to reconsider whether to ease the stiffest provision of its landmark law: locking up third-time offenders for the rest of their lives.
Two ballot initiatives - both led by Los Angeles area prosecutors - are aiming to put more flexibility in the three-strikes law, in a bid to address concerns that it is imprisoning too many nonviolent criminals at too great a cost to taxpayers. The measures would come before California voters in November if they qualify for the ballot.
"The public has expressed legitimate concerns about [the law's] use against those who commit new, nonviolent, not serious offenses," says Steve Cooley, L.A. County district attorney and coauthor of one of the initiatives, the Three Strikes Reform Act of 2006. "We think that if we don't fix the law, we may lose it to those who would weaken it so much it would lose its teeth."
If Californians were to allow judges more discretion in the sentencing of three-timers, their decision could be felt in about two dozen other states that enacted similar three-strikes laws over the past 13 years. Such an outcome would also intimate that public attitudes may be shifting as citizens evaluate the social and economic costs of harsh sentencing laws.
"California's attempts to revisit three strikes is important nationally because it suggests that the rule of American politics that has been a truism since 1968 - that anything that sounds tougher on crime is a political winner - may be coming less true," says Mark Kleiman, a professor of public policy at the University of California, Los Angeles. "The public has become increasingly aware of outrageous injustices in highly publicized, heart-rending cases at the same time they feel the weight of added costs to the system."
The state's three-strikes law was enacted by ballot initiative after the 1993 kidnapping and murder of a schoolgirl, Polly Klaas, by a repeat felon. It aimed to ensure that criminals who had been previously convicted of two "serious" or "violent" crimes would automatically receive a life sentence with no possibility of parole if convicted of a third felony. Under the law, petty theft, such as stealing from a convenience store, could be reclassified as a felony if a person had been convicted of a petty crime before.
If either of the reform measures goes through, "it would likely have a ripple effect for other states in revising sentencing minimums, taking new looks at penalties ... from burglary to drugs - what is serious and what is not," says Jason Ziedenberg, executive director of the Justice Policy Institute (JPI) in Washington, which seeks alternatives to prison.
One measure - submitted by Los Angeles County deputy District Attorney Steve Ipsen - would give judges more discretion to reduce punishments for lesser crimes while also permitting them to deal more harshly with rapists, child molesters, and murderers.
The other, the Three Strikes Reform Act of 2006 - which observers say voters are more likely to approve - would mandate that sentences of 25 years to life be imposed when the third offense is a "serious" or "violent" felony. It would also permit handing down such a punishment on a third strike for a nonserious felony, such as drug possession or petty theft - but only if the defendant had been previously convicted of a crime punishable by life in prison, such as homicide or child molestation.
Mr. Cooley notes that as of June 2005, 60 percent of the state's 7,700 "third strike" inmates had committed a nonviolent or nonserious third strike. It costs the state an average of $31,000 annually to keep each in prison.
California voters have considered reforms to the three-strikes law in the past. In November 2004, they narrowly rejected an initiative, Proposition 66, aimed at dialing back the sentencing mandates. Prop. 66 would have released 37,000 people from state prisons, a major concern of voters, according to exit polls. It also would have eliminated several crimes from being subject to three strikes rules such as residential burglary.
In contrast, the new proposed initiatives would provide more stringent guidelines. Cooley's measure is estimated to release fewer than 3,000 inmates - after their three-strikes sentences are revisited - and keeps residential burglary on the list of serious crimes.
As in previous campaigns, debate has already begun on whether three strikes has been a significant deterrent to crime. State law enforcement associations say yes, while national organizations such as JPI and RAND Corporation published research saying deterrence is limited and costly.
"Three strikes is fine the way it is," says David LeBahn, executive director for the California District Attorneys Association. "There is already enough flexibility built into the law to eliminate the unfairness that the public has complained about."
He says the extreme three-strikes punishments have been mitigated in recent years as judges use better discretion in meting out sentences. In the campaign against Prop. 66, his group, backed by Gov. Arnold Schwarzenegger (R), asked for abuses of the 1994 law to be made known, and says no one came forward.