How California’s Three-Strikes Law Struck Out
It was slain by a couple of professors, their students, and a district attorney who wanted reform.
Photo by Michael Romano.
In last week’s election, California voters made a decision that was at once historic and obvious: They reformed the state’s infamously harsh three-strikes law. Proposition 36, the ballot measure that passed with an amazing 69 percent of the vote, changed the state’s three-strikes law so that offenders who have committed no serious and violent crime will no longer go to prison for life. The vote was historic because when voters see crime measures on the ballot, they almost always pull the lever in favor of retribution, not mercy. And yet this time the result was also a no-brainer: The state was locking up petty thieves and shoplifters for life, and given the chance to stop this, the voters resoundingly did.
The original three-strikes ballot measure passed in California in 1994, following the terrible murder-kidnapping of 12-year-old Polly Klaas, who was snatched from her own slumber party. The killer turned out to be a criminal with a violent past who was out on parole. That was all voters needed to hear to pass a measure that said it would keep “career criminals who rape women, molest children and commit murder behind bars where they belong.”
But as the Los Angeles Times pointed out in an editorial this week, it’s not clear that Californians intended to go beyond the rapists, murderers, and molesters to permanently lock up offenders like Norman Williams, whom I wrote about for the New York Times Magazine two years ago. Williams’ third strike was a conviction for petty theft in 1997: He stole the floor jack of a tow truck when he was homeless and addicted to drugs. His earlier crimes also weren’t the work of a hardened and dangerous career criminal: In 1982, he burglarized an empty apartment while it was being fumigated. After he was robbed at gunpoint on the way out, he helped the police find the stuff he’d stolen. In 1992, he tried to steal tools from an art studio. When the owner confronted him, he dropped everything and ran.
Williams got out of prison in 2009 because of the odd-couple relationship between Steve Cooley, the Republican district attorney for Los Angeles, and Michael Romano, a supervising attorney for the Criminal Defense Clinic at Stanford Law School. Cooley has tough-on-crime credentials: His office regularly asks for the death penalty. But he thought applying the three-strikes penalty to guys like Williams was excessive and wasteful. Save life imprisonment for the real bad guys, he argued. Romano and his students began appealing for sentence reductions that he knew Cooley’s office wouldn’t oppose in court. And Williams and a trickle of other inmates got out.
But that was the slow train to reform, case by labor-intensive case. Meanwhile, California remained the only state meting out three-strikes life sentences to nonviolent offenders. In 2006, Cooley had written a bill to remove minor drug crimes and petty theft from the list of three-strike offenses—unless the offender’s first or second strike was a serious crime like rape, murder, armed robbery, or arson. That was the policy for three-strikes prosecution that Cooley had instituted in Los Angeles. But his bill didn’t pass. Neither did a 2004 ballot initiative that would have reformed the policy more broadly.
Stanford law professor David Mills, Romano’s boss, came up with the idea of trying another ballot measure based on Cooley’s proposal for reform and with the district attorney’s endorsement. Romano and his students co-wrote the initiative with the NAACP Legal Defense Fund and Cooley’s office. Mills became the chief funder, donating $1 million to spearhead the cause. And Romano’s Stanford students indefatigably collected signatures to get the measure on the ballot.
The Proposition 36 team argued that the state was wasting $100 million a year locking up petty criminals. In a state with a perpetual budget crisis, that would seem like a strong card to play. But a Los Angles Times poll in September suggested otherwise: Support for the measure increased only slightly when the survey question about curtailing three strikes included the cost savings. Maybe what mattered most was fairness or the lack thereof, illustrated by stories like Norman Williams’.
It’s interesting, too, that a ballot initiative to repeal California’s death penalty failed on Tuesday. Its supporters also argued their measure would save the state $100 million a year. Perhaps it matters, in explaining the divergent results, that the state hasn’t executed anyone since 2006, when the courts blocked California’s method of lethal injection. “In refining three strikes this week, voters have belatedly, but wisely, remade the recidivist-control law into what they intended nearly two decades ago, so that it no longer dishes out life terms for petty thefts,” the Los Angeles Times editorial argues. “As for the death penalty, voters kept what they had: a penalty on the books, but virtually no executions in reality. It's a sort of truce between fear and anger on the one side and wisdom and pocketbook on the other.”
Romano says that the passage of Proposition 36 marks the first time U.S. voters have passed a sentencing reduction that applies to people who are already in prison. There are about 3,000 people, he calculates, who are in prison for life under three strikes even though they were never convicted of a serious violent crime. The law provides that each of them can now go to court to ask for a lower sentence. Judges can say no if they nevertheless consider the offender a threat to public safety. And anyone convicted of rape, murder, and child molestation can’t apply: Proposition 36 doesn’t affect their life sentences.
Still, that didn’t stop Mike Reynolds, father of an 18-year-old woman killed in 1992, from saying of Tuesday’s passage of the three-strikes’ measure: "This was a great day for criminals and their attorneys."* In a sense, he’s right. Romano and his clinical students will be busy. More people like Norman Williams will get a chance to remake their lives. And that’s a good thing.
Correction, Nov. 20, 2012: This article originally identified Mike Reynolds as the father of Polly Klaas. Marc Klaas is the father of Polly Klaas, and Mike Reynolds is the father of an 18-year-old woman killed in 1992. (Return to the corrected sentence.)
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.