SWINGING AT THREE STRIKES

Two November Ballot Measures Aim To Scale Back The Nation's Toughest Crime Law

Crime is down, way down, since 1994, when California voters approved the
"Three Strikes and You're Out" ballot measure, the toughest anti-crime law
in the country.

"Three Strikes has revolutionized the way we combat crime in this country,"
declared Secretary of State Bill Jones, who co-authored the measure while a
Republican member of the Assembly, in a press release last year. "By
closing the revolving prison door we have created an effective deterrent to
crime that has helped reduce the crime rate in California by 38 percent in
just five years."

Similar claims were also made last month by Mike Reynolds, the father of a
murder victim who helped write the measure and was its most high-profile
proponent.

"The bottom line is: If you're not prepared to lock up criminals you're not
going to stop crime," Reynolds said in a commentary that appeared in the
Los Angeles Times.

Locally, San Luis Obispo County District Attorney Gerald Shea has
attributed the crime rate drop at least in part to Three Strikes, which he
believes has a strong deterrent effect.

"It has to be one reason why crimes are coming down, but there could be
other factors," Shea said.

Supporters also trumpet the fact that California prison populations have
not skyrocketed since Three Strikes nearly as much as its opponents
cautioned, demonstrating that we can be tough without breaking the bank.

All this is evidence, they say, that Three Strikes is effective at keeping
career criminals behind bars and deterring others from pursuing a life of
crime.

So why is Three Strikes under attack? Why will Californians likely vote on
not one, but two ballot measures aimed at reforming Three Strikes this
November? Why did a recent poll show most Californians want to scale back a
law they overwhelmingly approved a little more than five years ago?

The answer lies in the myriad stories of people receiving life sentences
for minor crimes, with indicators that our anti-crime hysteria has worn
off, and with concerns that California has one of the highest incarceration
rates in the world, a rate that has caused prisons to gobble up a growing
percentage of our resources.

Maybe all those factors could be overlooked and accepted if Three Strikes
supporters were correct in their claims that this tough law has lowered
crime rates and made us safer.

Yet the jury is still out on such claims, for which supporters can offer no
proof. Indeed, it is the supporters of Three Strikes that have repeatedly
blocked official attempts to study the issue.

Calling Strikes

Other states have Three Strikes laws, but none goes as far as California in
subjecting ex-convicts to life sentences for crimes that would often result
only in fines for most of us.

To refresh your memory, here's how Three Strikes works: Offenders convicted
of a "violent or serious" felony - a category of about two dozen crimes
ranging from violent crimes to burglaries - are considered to have "one
strike."

After that first conviction, if the person commits any new felony he or she
is deemed a "second striker," and the sentence for the latest crime is
automatically doubled.

If someone has been convicted of two prior violent or serious felonies and
commits any new felony, that is considered his or her "third strike." Third
strikers automatically receive a sentence of at least 25 years to life in
prison.

The "any new felony" provision of California's Three Strikes law is what
separates it from most other Three Strikes laws in the country - and what
has created the most examples of long sentences for minor crimes.

For example, possession of any amount of drugs is considered a felony for
those on parole from prison. So while most people would be charged with a
misdemeanor and pay a small fine, those with two previous strikes can be
sentenced to life in prison. Most crimes occurring within prisons are also
considered felonies, so an inmate who fights or uses drugs in prison can
quickly find himself with a life sentence.

Although the Three Strikes measure originally allowed only prosecutors to
remove a previous strike from consideration during sentencing - known as
"striking a strike" - the California Supreme Court extended that authority
to judges in 1996.

In People vs. Superior Court of San Diego County, Re: Jesus Romero (known
as the "Romero decision"), the Supreme Court ruled the Three Strikes law
infringed on authority given to the judicial branch by the Constitution.

That's because the law usurped a judge's power to look at the facts of a
case and, if the judge found it to be "in the interest of justice," to
disregard a prior conviction at the time of sentencing.

"Since dismissal is a judicial rather than an executive function, laws
purporting to subject to prosecutorial approval the court's discretion to
dispose of a criminal charge are unconstitutional," the court found,
effectively changing that aspect of the Three Strikes law.

In that case, Romero was facing a third strike for possession of 0.13 grams
of cocaine. It is cases like his that are the main focus of two proposed
ballot measures to reform Three Strikes.

Changing The Law

Both the Three Strikes Act of 2000 and the Amended Three Strikes Initiative
are now entering the signature-gathering phase to be qualified for the
November ballot.

Both would change the Three Strikes law to only count violent or serious
felonies as strikes and to require those now serving time as strikers for
lesser offenses to be resentenced within 180 days.

The Three Strikes Act of 2000 - whose sponsors include Joe Klaas, the
grandfather of Polly Klaas, whose 1994 murder provided an emotional hook
for the Three Strikes campaign - also goes further. It would allow the
Three Strikes law to be modified by a majority of the Legislature or of
voters, and it would allow only one strike to be counted for each crime.

That provision would prevent, for example, someone convicted of one
burglary spree from facing a life sentence for his next felony. Currently a
single prosecution for multiple crimes can later be considered as multiple
strikes.

A more local example involves the 16-year-old who attacked homeless Richard
Bermine in 1998 and was sentenced last year to eight years in the
California Youth Authority. Deputy District Attorney Andrew Baird at the
time told the Tribune that the boy could later be considered to have two
strikes because he beat Bermine with his skateboard, walked away, and came
back a few minutes later to kick him in the head.

Shea disagrees that Bermine's attacker could be charged with two strikes
for the attack and said most prosecutors are good about using their
discretion to tailor the punishment to the criminal, if not necessarily the
crime.

He opposes efforts to change Three Strikes, saying the existing provisions
allowing either a judge or prosecutor to "strike" a strike guards against
excessive punishments.

"With those safeguards in place and in light of the reductions in the rate
of serious crimes, I would not want to alter the current two and three
strikes law," Shea said.

But most defense attorneys in SLO County say Three Strikes has been a
disaster, giving prosecutors unprecedented leverage against defendants, and
that it needs to be changed.

"People who have a tainted past many, many years ago, if they commit a
felony they are looking at life in prison, and that's not the spirit of the
Three Strikes law," said San Luis Obispo defense attorney Thomas McCormick.

Fun With Numbers

More than any other single factor, crime rates are affected by the economy,
and that's been true for most of this century. When unemployment is high
and there are fewer opportunities, crime rates increase.

When the economy is strong and unemployment is low - particularly in the
urban centers, as it is during the current economic boom - crime rates drop.

Crime may be down in California, but it's also down in every state in the
country, even those which didn't use the public's concern about crime in
the early '90s to drastically increase criminal penalties.

Some such states - Washington, for example - have seen even steeper
declines in crime rates, even though they didn't pass Three Strikes laws or
other drastic increases in criminal sentences.

In fact, despite the crowing of law-and-order types about how the toughness
of California laws has lowered crime rates, the most recent reports from
the U.S. Bureau of Justice Statistics ranks California as having the
ninth-highest violent crime rate in the country, ahead of such
traditionally high-crime states as New York (No. 12) and Texas (No. 18).

The FBI's Uniform Crime Reports showed that California crime in the first
six months of 1999 had dropped 10 percent since the same period in 1998.
That's impressive, although the entire Western region dropped by 12
percent, casting doubt on Three Strikes as the cause.

But California's passage of Three Strikes came at an opportune time for its
political supporters, coming as in did in 1994 just as the
technology-driven economic boom hit its stride, with jobs and government
funding for job training and at-risk intervention programs becoming plentiful.

The boom was reflected in nationwide violent crime rates that have declined
steadily since 1994 and homicide rates that have dropped to 1969 levels.

Such national crime trends don't seem to support Three Strikes supporters'
claims that the law has "created an effective deterrent to crime," as Jones
claimed.

When confronted with the official crime stats even ardent supporters of
Three Strikes, like Susan Fisher, executive director of the Doris Tate
Crime Victims Bureau, will back off the claim that Three Strikes makes us
safer: "It is not meant as a deterrent. It is meant to get repeat offenders
off the streets."

Crime may be dropping, but in San Luis Obispo County, as in other
California counties, the number of two- and three-strikes cases are on the
increase.

The San Luis Obispo County District Attorney's Office filed 92 second- or
third-strike cases in 1999, compared with 63 filings in 1998 (of which two
are still pending resolution, illustrating how such cases are often lengthy
and complicated).

The Law's Impacts

A study gauging the true impact of Three Strikes has been sought by its
critics, but Three Strikes supporters have blocked such a study. The
California Legislature has twice approved legislation to study the impacts
of Three Strikes, only to have it twice vetoed by then-Gov. Pete Wilson.

Current Gov. Gray Davis, a Democrat whose tough-on-crime stances are
virtually indistinguishable from his Republican predecessor, has also
publicly opposed studying the impacts of Three Strikes or other determinate
sentencing laws on the state budget, on the crime rate, or on criminal
recidivism.

The California Legislative Analyst's Office recently did a study looking at
who is being sent to prison under Three Strikes, while making it clear "it
is not an analysis of the costs or benefits of the law. The Legislature
passed SB 873 (Vasconcellos) to require such a study, but the measure was
vetoed by the governor."

As of the end of September 1999 about 43,800 inmates were sent to state
prison with a second strike and about 5,700 inmates were third strikers.
The flow of strikers to prison has been steady over the past three years.

"More than 10,000 second strikers have already been released from prison to
parole. These offenders were probably convicted of low-level offenses which
resulted in relatively short prison terms, even with the doubling of
sentences prescribed under the Three Strikes law," read the report.

The California Department of Corrections estimates that by 2005 the
second-striker population will reach 38,000 and the third-striker
population will exceed 12,000. Such levels would make strikers about 28
percent of the prison population, up from about 22 percent now.

"Although the number of second and third strikers entering prison each
month remains relatively stable, the fact that these offenders serve much
longer sentences means that their population totals will grow," according
to the Legislative Analyst.

The report also found that, despite a campaign in 1994 that focused on
keeping violent career criminals behind bars, "most second and third
strikers are committed to prison for nonviolent property or drug crimes."

"The largest number of second strikers falls into the property crime
category (36 percent), followed closely by the drug offense category (33
percent)," read the report. "The most common second-strike offense is the
possession of a controlled substance (20 percent of total second strikers),
followed by petty theft with a prior theft (10 percent)."

Among those given sentences of at least 25 years to life for a third strike
40 percent were convicted of crimes against persons, usually violent
crimes, followed closely by property crimes. The most common offenses were
robbery (18 percent of third strikers) and first-degree burglary (11 percent).

The report also found wide disparities among counties in the willingness of
prosecutors to "strike" strikes.

"For example, both the counties of Alameda and San Francisco have generally
chosen to restrict prosecutions of persons as third strikers to those
accused of committing a new violent or serious offense, rather than any
felony offense as the law permits," reads the report.

(The report released no figures for this county, and Shea said his
department doesn't keep such statistics.)

Similar disparities can be found in the race of strikers. While
California's prison population is fairly equally divided among blacks,
whites, and Hispanics, blacks make up about 44 percent of third strikers.

While previously prevented from officially studying the financial impacts
of Three Strikes, the initiatives to amend Three Strikes are now triggering
some official financial analysis.

The Amended Three Strikes Initiative has already gone through its Attorney
General's Office title and summary procedures, which included summaries by
the legislative analyst and director of finance of the measure's fiscal
impacts.

If Three Strikes is amended California could see "estimated short-term
state savings of as much as $250 million from reduced prison operations,
with long-term operations savings of as much as $500 million [annually].
Additional one-time savings of up to $1 billion could result from delayed
construction of new prisons," reads the summary.

Although it estimates the measure's one-time resentencing provisions could
cost counties "tens of millions of dollars" statewide, "in the long term,
the measure could result in net savings to counties, on a statewide basis,
of as much as $15 million annually."

Supporters of Three Strikes are quick to dismiss the financial argument:
"How much would you be willing to pay to protect your mother?" was how
Fisher, of the Doris Tate Crime Victims Bureau, responded to questions
about the cost of Three Strikes.

Even for many advocates of Three Strikes reform, the financial advantages
of changing this law pale in comparison with notions of justice, fairness,
mercy, and constitutional requirement that the punishment should fit the
crime.

Arguing Three Strikes

District Attorney Shea was always a supporter of Three Strikes but said he
initially had some reservations about handing down a sentence of 25 years
to life for any felony.

"I had some concerns about the third strike being a nonserious offense,"
said Shea.

Nonetheless, Shea believes the law is working well, especially since 1996
when the Supreme Court granted judges the right to disregard previous
strikes in some cases.

"Judges ought to have the power to strike a strike," Shea said. "Judges
need to be able to make those discretionary calls."

Shea said his prosecutors are also expected to use their discretion in
disregarding previous strikes when that's in the interest of justice, even
though "the law requires us to charge all prior strikes if we have
information that those strikes occurred and that they were convicted."

"We do follow the law, but at the same time I would like the (deputy
district attorneys) to use their discretion," Shea said. "I want the
deputies to research the facts of the prior convictions, not just look at
if they were convicted."

But defense attorneys accuse prosecutors of using all potential strikes as
a threat against defendants, who will often be eager to plead guilty to
lesser offenses if a lifetime of liberty is on the line.

"There's just too much discretion in the hands of the district attorney,"
said Linden Mackaoui, a public defender who has represented many Three
Strikes cases in this county.

Local attorneys on both sides of the Three Strikes fence agree that the law
gives prosecutors unprecedented power to coerce guilty pleas out of
defendants.

"Even an innocent person might say, 'I can do five years, but I can't do
life,'" said San Luis Obispo defense attorney Chris Casciola.

In fact, the ongoing investigation of police corruption in the Los Angeles
Police Department's Rampart Division has revealed many such cases, with
innocent men pleading guilty to crimes falsely alleged by police officers
because of the threat of receiving a third strike.

"The Rampart cases reveal a sorry truth about L.A. law: Using entirely
lawful threats, the state can make even the innocent plead guilty," wrote
Loyola Law School professor Samuel Pillsbury in a recent Los Angeles Times
commentary.

Casciola notes that the vast majority of people being sent to prison under
Three Strikes laws are poor and represented by often overloaded public
defenders, rather than being able to hire a private attorney.

"When someone is at their third strike they are not usually able to hire a
private attorney," he said. "In today's system, it really is better to be
rich and guilty than young and innocent. Because there is a certain amount
of financing needed to bring the system to task."

Attorneys also decry how arbitrary Three Strikes can be, with the
willingness to strike past strikes varying widely among prosecutors,
judges, and regions.

"If you have a judge who's a law-and-order guy who's not willing to strike
strikes, it's a life case every time," Mackaoui said.

But the most ardent supporters of Three Strikes, such as Fisher, say the
law is accomplishing its intent of removing career criminals from society,
and there is no need to change anything.

"We are incredibly opposed to both of those initiatives," Fisher said of
the two measures to reform the law. "We supported the initial Three Strikes
and believe people who commit two violent felonies shouldn't be given a
third chance to victimize someone."

Fisher said she has little sympathy for those getting life sentences for
nonviolent felonies after spending most of their lives victimizing others.
Those with strikes just have to work hard at being productive members of
society.

"If you feel like you can't get through your life without committing
another felony, move to another state," she said.

Fisher also justified the current Three Strikes impact on nonviolent
offenders by noting that they still pose a threat to society: "If you go
into someone's house with a gun, you are a murderer waiting to happen."

Fisher said she doesn't understand what motivates someone like Joe Klaas,
who has endured a terrible loss at the hand of a career criminal when his
granddaughter Polly was murdered but still wants to scale back Three
Strikes, actively working on the Three Strikes Act of 2000 campaign.

Although Three Strikes supporters point out that Richard Allen Davis would
have been in prison before he killed Polly Klaas if Three Strikes had been
a law at that time, Joe Klaas notes that Davis would also have still been
in prison under the reformed Three Strikes proposals.

"It isn't making kids any safer to put people away for bouncing checks.
It's just a waste of resources. We need to put that money into education,"
Klaas said. "We have gone to 47th in the nation in funding education and
first in locking people up. It's gotten backwards."

Klaas is still bitter about how Polly's murder was used for political gain
by Bill Jones, Pete Wilson, and others who pushed Three Strikes. The Klaas
family initially supported Three Strikes, but later came to lead the
campaign against it.

"We let ourselves be used to further that cause," Klaas said.

While many Three Strikes supporters are motivated by vengeance or even
racism, Klaas said anyone taking a rational look at the law has to conclude
that it is unjust and unnecessarily expensive.

"There hasn't been a newspaper that has written about Three Strikes in the
last two years that hasn't criticized Three Strikes as it now stands," he
said. "I think the public is starting to be made aware of the fact that we
were fooled."

One recent statewide poll commissioned by the University of California at
Riverside's Presley Center found that between 53 and 68 percent of voters
want Three Strikes scaled back, depending on how the question is worded.

"When we first voted for Three Strikes, we didn't know what the results
would be," said Sam Clauder, a spokesman for the Three Strikes Act of 2000
campaign, who says he voted for Three Strikes in 1994. "But now people are
realizing the problems with this law."

New Times staff writer Steven T. Jones has balls but no strikes.

[sidebar] Examples Of Justice?

The examples of people getting 25-years-to-life sentences for minor crimes
are legion around the state, including a homeless man trying to steal food
from a Los Angeles church, a 20-year-old Vallejo man for failure to appear
at a court hearing, a man who stole a bottle of vitamins in 1995, a
69-year-old man for stealing paint from a Home Depot in Santa Clara County,
and numerous cases for possession of small amounts of narcotics.

Such cases are mirrored in San Luis Obispo where there are current examples
of defendants right now facing the possibility of life in prison for
offenses like failing to register as a sex offender (People vs. Welch) and
for an attempted assault that caused no injuries (People vs. Howe), and
those who are now serving life sentences for burglary (People vs.
Escobedo), and possession of drugs in correctional institutions (People vs.
Mena, People vs. Hewitt).

Supporters of the law argue that receiving a third strike for a minor
offense is often justified by a defendant's long criminal history, while
opponents say handing down a life sentence based solely on criminal
history, violates the bedrock legal principle that the punishment should
fit the crime.

The case of 36-year-old Vincent Welch, whose trial for a third strike could
begin soon, is an interesting one that could illustrate either how
effective or how unjust the Three Strikes law is, depending on your
perspective.

"He's looking at a life sentence for literally doing nothing," public
defender Pierre Blahnik said of Welch, who is facing his third strike for
failing to immediately register as a sex offender after being released from
the California Men's colony.

In the case, Superior Court Judge Christopher Money agreed with Blahnik's
contention that Welch's failure to register shouldn't warrant a life
sentence, but the judge could subject him to that sentence anyway based on
his history.

"Court finds defendant does not come within the spirit of the Three Strikes
law due to the nature of the circumstances of the present felony. However,
the court does feel that the defendant comes within the spirit of the Three
Strikes law as to the nature and circumstances of defendant's prior serious
and/or violent felonies and the particulars of his background, character,
and prospect as recited into the record. Therefore, the court denies
defendant's motion for dismissal of strike priors," Money ruled.

Welch's rap sheet includes seven prior felonies as an adult, although four
of those stem from a single incident and those four are Welch's only
felonies from the serious or violent category that count as strikes.

According to a report by Atascadero psychiatrist Hadley Osran, Welch was
raised in Paso robles mostly by a single mother who left her abusive
husband. Welch took Ritalin as a child for his attention deficit disorder,
started smoking pot at age 13, was using LSD and amphetamines by age 16,
and was a heavy methamphetamine user by his 20s.

Welch's trouble with the law started in 1978 at the age of 14, when he was
convicted of burglary and served nine months in the California Youth
Authority before being paroled. But he violated his parole twice - once for
a disorderly conduct in Ventura County - and spent much of his late teens
behind bars.

His adult criminal record started in San Luis Obispo County, where he was
convicted of second-degree burglary in 1982 and vehicle theft in 1984 and
again in 1985.

After being released from prison, Welch settled in Del Norte county. At a
party where Welch and others were using meth, Welch left with the
10-year-old daughter of a woman at the party and sexually abused her.

He was convicted in 1988 in Del Norte County of forcible oral copulation,
forcible lewd act upon a child, and kidnapping charges under two different
code sections and received a 16-year sentence as part of a plea agreement
that spared the victim from having to testify.

Welch was paroled from the California Men's Colony on May 17 of last year
and placed on a bus bound for Eureka, where he was to report to his parole
officer the next day.

But he got off the bus in Paso Robles and spent a month staying in San
Miguel with a woman friend and her two children before he was arrested for
violating his parole. He is being charged with a single count of failing to
register as a sex offender, which is a felony.

Osran's evaluation of Welch concluded that he poses a low risk of
committing another sex crime, concluding the incident "was likely an
isolated sex offense due to some situational factors, including acute drug
intoxication, as well as a crime of opportunity."

But he also concluded that Welch's anti-social history and personality made
him a "higher risk of general criminal recidivism" and "poorly suited for
parole supervision."

If Welch is convicted of a third strike, his is one of the cases that would
require resentencing if voters approved the Three Strikes Act of 2000,
which would only allow his Del Norte conviction to count as one strike.