by Sheila Kuehl
October 28, 2012
This is the eighth in a series of essays analyzing the Propositions appearing on California's November ballot. This essay analyzes Prop 36, which would change sentencing for those who commit a non-serious, non-violent felony, after having served time for two, prior, serious or violent felonies (the so-called Third Strike). There are a few exceptions, but, generally, current prisoners could apply for re-sentencing if their third strike was non-serious and non-violent.
The first essay in this series explained Proposition 30. The second presented the competing tax measure, Prop 38, and indicated possible outcomes, should both Prop 30 and 38 pass. The third analyzed the many proposals contained in Prop 31. The fourth discussed the anti-union agenda of Prop 32. The fifth presented Prop 33, the Mercury Insurance initiative allowing companies to penalize auto policy holders who have not had continuous auto insurance coverage. The sixth discussed Prop 34 and the abolition of the death penalty. The seventh explored the provisions of Prop 35, which would amend California's sex- and labor-trafficking laws. Future essays will present and analyze each of the remaining propositions.
Different Types of Crimes
There are three levels of crimes in California: felonies, misdemeanors and infractions. Felonies are the most serious and those convicted of felonies generally are sentenced to incarceration in state prisons. Felonies are also divided into categories, with the most egregious being "serious" or "violent" felonies, which are listed in California statute.
Most violent felonies are also serious, but serious felonies may include non-violent felonies, such as assault with intent to commit robbery. Grand theft and possession of a controlled substance are two examples of felonies not categorized as either serious or violent.
In 1994, the voters of California adopted an initiative under which repeat offenders have been sentenced to longer sentences than would normally have been warranted by their third crime. Those who commit any felony (not required to be serious or violent), and have one serious or violent felony conviction on their record already, get double the sentence they would normally get for the "second strike". About 33,000 people are now in prison for committing their second strike.
Those who commit any felony, not just serious or violent, who have two or more convictions for a serious or violent felony are sentenced to life in prison with the possibility of parole after serving 25 years. No third striker can be released from prison without the agreement of the Parole Board. No third striker has yet become eligible for parole.
What Prop 36 Would Do
Prop 36 reduces the prison sentences for those who committed a non-violent, non-serious felony as their third strike. The new sentence would be twice the usual sentence for the crime they committed as a third strike. There are some exceptions in the Proposition. A prisoner who has committed certain new or prior offenses, including some drug-, sex-, and gun-related felonies, would still be subject to the 25 to life term. Those now in prison on their third strike will be able to apply to be resentenced by a court, but their current offense must be non-serious and non-violent, and, as mentioned above, none of the first or second strikes can be certain serious drug-, sex-, or gun-related offenses.
The court must look at the prisoner's previous criminal offense history and whether the re-sentencing poses a risk to the public. Behavior in prison is also relevant. If the court declines to re-sentence, the original sentence of 25-to-life stands.
Savings to the State
There would be significant savings to the state in at least three ways. Those who commit new, non-serious, non-violent crimes would serve shorter sentences. Current prisoners whose third strike was a non-serious, non-violent felony, and who are resentenced by the court would serve shorter terms. Parole of these offenders, when and if they are paroled, would be concentrated in counties, rather than the state, as the new realignment plans shift parole supervision for these low-level offenders to the counties.
The Legislative Analyst estimates a savings of about $70 million annually, minus the one-time costs of re-sentencing.
Most of Law Enforcement Opposes Prop 36, but....
Many District Attorneys favor it and Chief Charlie Beck of Los Angeles has come out in favor. The main bone of contention (if you don't count the rather rabid "rapists and murderers run wild" argument), is a philosophical one: whether a record of two felonies is sufficient to convince a just society that a perpetrator is a lifelong criminal and should be removed from society, or whether, as has been the usual case in the American justice system, a person should be punished for the crime they commit, rather than be judged on crimes for which they have already served their sentence.
In the words of the great Gilbert and Sullivan, the question is whether California should amend its three strikes statute to make "...the punishment fit the crime, ...the punishment fit the crime."
Next: Prop 37: Genetically Engineered Food Labeling