California voters to get a swing at "three strikes": three strikes statute, Penal Code Section 667 (1994); Proposition 183, three strikes and you're out.

THE ACT'S GOALS

The intent of the Legislature and the voters, both of which passed "three strikes" sentencing law in 1994, was to close the revolving door that sends repeat offenders back onto the streets to commit more crimes. With serious crime on the rise in the early 1990s, the objective was to better protect the public by imprisoning dangerous offenders.

WHAT THE ACT DOES

It imposes a 25-year-to-life mandatory prison sentence on offenders who have committed two serious or violent crimes and who commit a third felony offense, which does not have to be a violent offense and does include some drug crimes and burglary. The law also doubles penalties for a second serious or violent felony.

On the 10th anniversary of California's "three strikes you're out" sentencing law, it remains an epitome of the get-tough movement that characterized crime policy in the 1990s. And the measure that imposes 25 years to life in prison for a third felony conviction still sparks the kind of controversy that is sending it back before California voters in November.

"Three strikes" was first coined and successfully carried out in the 1993 fall elections in Washington state, where voters approved a Persistent Felony Offender Act requiring life without possibility of parole for third-time serious felony offenders. Even though many states already enhanced sentences for repeat violent offenders, the three-time loser notion caught on, and 24 states passed such laws.

Nowhere has "three strikes" been applied more broadly, enthusiastically and visibly than in California. Researchers at the University of California, Berkley, estimated in 1999 that more than 90 percent of "three strikes" sentences handed down nationally had been in that state. California is a huge, populous state and that is part of the reason.

And the law was written to include a number of violent felonies, along with some 25 other serious felonies.

The law requires the long, mandatory prison sentence when anyone with two prior convictions for serious or violent felonies is convicted of a third felony. The third offense does not have to be a violent crime and includes some drug crimes and burglary. The law also doubles penalties for a second serious or violent felony.

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This expansive strike zone quickly resulted in news stories of cases in which mandatory prison terms were imposed on a third-strike pizza thief, an offender who stole golf clubs and another who shoplifted videotapes. The latter case, in which a heroin addict, repeat burglar was caught and convicted of trying to steal from Kmart, went before the U.S. Supreme Court earlier this year. Apparently unmoved that the defendant's take included "Snow White" and "Cinderella" videos, the Court ruled that harsh sentences for career criminals do not constitute cruel and unusual punishment, despite whether or not the current offense is a violent one. Justice Sandra Day O'Connor, writing for the majority, said, "Though these laws are relatively new, this Court has a longstanding tradition of deferring to state legislatures in making and implementing such important policy decisions."

This nod to states followed California's assertion that protecting the public requires that it have latitude to identify and incapacitate offenders who habitually commit crimes.

"There comes a point when the state has a right to say enough is enough," a deputy attorney general in California told the Court. Prosecutors and other law enforcement officials say it is inaccurate to characterize the law as targeting a bunch of pitiful, petty criminals. They point to what they say are long, serious criminal histories of these defendants.

Still, opponents of the current "three strikes" law have been at work for a number of years to change it. Their efforts have included proposals before the Legislature and a failed attempt to place a measure on the 2002 statewide ballot. Now, a group called Citizens Against Violent Crime (CAVC) has successfully qualified a reform measure for the 2004 ballot.

The Three Strikes and Child Protection Act of 2004 was prepared by CAVC, a bipartisan, cross-section group representing victim's rights, child advocates and families of prisoners. The act would remove nonviolent crimes from the list of "strikes" that qualify for mandatory sentences, leaving only specified violent or serious felonies. Only prior convictions for those crimes, brought and tried separately, would qualify for the mandatory sentence under the initiative.

Importantly, the reform would allow prisoners serving "three strike" sentences, who would not qualify under the new provisions, to apply for resentencing. The measure also would increase punishments for certain sex crimes against children.

Among reform proponents, California Assemblywoman Jackie Goldberg has carried legislation in years past similar to the initiative. She is particularly concerned that the current law has a disproportionate impact on low-income and minority populations, notably her East Los Angeles district.

"We've built only one public university in this state in the past 10 years, but countless prisons have been built and are filled with individuals from our poorest communities," she says. "Many of these people are drug addicts who commit property crimes, and we're paying $25,000 a year to incarcerate them."

A report released earlier this year by the Washington, D.C.,-based Justice Policy Institute is similarly critical of the 10-year experience with California's "three strikes" law, stating that a nonviolent offense triggers the 25-year-to-life sentence for more than half of the third-strikers.

The study also included an analysis of race and imprisonment rates under "three strikes" and found the African American rate more than 12 times and the Latino rate also significantly higher than that of whites. Overall, the Justice Policy Institute researchers fault the sentencing law for contributing to growth in prison populations and corrections spending in excess of its impact on crime.

For these reasons, the initiative measure seeks a change to a "three strikes" law that, supporters say, would more strongly target and spare resources for violent criminals.

Meanwhile, the California District Attorneys Association is preparing an anti-initiative message that counters arguments of the reform proponents. They cite law enforcement and court statistics that show two-thirds or more of crimes are committed by the same repeat criminals who do not specialize in violent or nonviolent crimes, but rather show proclivity for both. The DAs also argue that the number of offenders and costs have been less than initially projected, while prison populations are leveling and crime is down.

California Attorney General Bill Lockyer, whose tenure and influence in the Legislature included serving as longtime chair of the Senate Judiciary Committee and later Senate president pro tern, takes no official position on the proposed initiative, but says he is satisfied that the current sentencing law has been applied by local officials and refined by courts in ways to be accountable and fair. He says that judges and prosecutors exercising discretion is a better way to fine-tune the law than "coming in with a large legal machete and chopping pieces off."

A California public opinion news service poll in June showed strong public favor for the initiative revisions to "three strikes" that will be on the fall ballot. But it is, as they say, a long season.

Donna Lyons heads NCSL's Criminal Justice Program in Denver.