In 1994, Dorothy Erskine’s nephew, Brian Smith, was arrested for shoplifting at Cerritos Mall soon after the public voted to pass the controversial Three Strikes law. Smith, 30 at the time, was sentenced to 25 years to life in prison.
After spending 16 years advocating against California’s Three Strikes law, South Los Angeles resident Erskine believes this time next month she will have something to celebrate. If voters pass Proposition 36 in November, as she believes they will, her nephew could be released.
“I’m not saying my nephew had a beautiful past,” Erskine said. “He was addicted to cocaine and most of his previous strikes were related to supporting the habit. But I will be overjoyed if Brian were released within the next year [in order to be] home for Thanksgiving or Christmas.”
A similar fate happened to Leandro Andrade in November 1995. The father of three was sentenced to two consecutive life sentences for shoplifting nine children’s videos on two occasions.
Under the same type of law in Louisiana, Cornell Hood, a New Orleans man, was sentenced to life in prison after being found guilty of possessing and attempting to distribute marijuana.
There are many who believe that California’s Three Strikes law is among the harshest forms of sentencing in the nation. What makes it even harder is that strikers must serve their time in prison. They cannot go on probation or serve their time in rehabilitation facilities. Also, juvenile convictions count as strikes, as do crimes committed out of the state.
California’s “Three Strikes and You’re Out” law was first sold to the public as a way to maintain public safety and keep violent offenders, like rapists or murderers, off the streets. It was intended to force longer prison sentences upon repeat offenders.
Specifically, the law currently states if a person has two or more serious or violent offenses, upon the third felony strike, that person can be sentenced to life in prison with an opportunity for parole after 25 years. Additionally, courts also refer to offenders as “second-strikers.” Second-strikers are offenders who have one previous serious or violent felony conviction. As a result, their new felony conviction could be twice the term required under the law.
According to the California Department of Corrections and Rehabilitation (CDCR), as of March 2012, there were about 33,000 second-strikers and 8,700 third-strikers in prison. African Americans make up about 45 percent of the third-striker population, followed by Hispanics, according to the California Legislative Analyst’s Office.
Those who oppose the current law have found many inmates are serving life sentences, similar to Smith and Andrade, for nonviolent crimes like shoplifting.
“There are countries that don’t give life sentences for murders,” said Geri Silva, the executive director of Families to Amend California’s Three Strikes (FACTS). “We give life sentences for petty theft, with few attempts to modify the law.”
FACTS was created in 1996 as a coalition dedicated to amending the Three Strikes law. The organization has spent years advocating, educating and demanding just sentencing and fair parole practices. They hope to enjoy the fruit of their labor with the adoption of Proposition 36.
If adopted, Proposition 36 will amend the law by imposing life sentences only when a new felony conviction is serious or violent and by re-sentencing inmates serving life sentences for nonviolent third-strike convictions. According to FACTS, under this initiative about 3,000 inmates will be eligible for re-sentencing.
However, according to the attorney general, life sentences will remain if the third strike conviction was for “certain non-serious, nonviolent sex or drug offenses or involved firearm possession; or for felons with a non-serious, or nonviolent third strike if prior convictions were for rape, murder, or child molestation.”
Proposition 36 will not make any changes for people convicted of a second strike.
“I just feel like the way this law has been implemented is cruel and unjust,” Erskine said. “I am thankful we are getting something on the ballot this November to allow us to have a re-sentencing opportunity.”
But, anti-three strikers have had this opportunity before. In November 2004, Proposition 66 appeared on the ballot as a similar effort to amend the current law, but ultimately it was defeated by voters.
“We had an early victory based on absentee ballots,” Silva said. “But our opportunity to reform the law was defeated once Gov. Schwarzenegger released a series of ads saying a bunch of murderers and child molesters would be let back on the streets. People believed him because they thought, ‘why would he lie?’”
According to the Los Angeles Times, Californians appeared ready to pass Proposition 66. But once Schwarzenegger joined the No on 66 campaign with a heavy media blitz right before the election, the proposition lost with 53.2 percent of voters against it.
The first “true” Three Strikes law was implemented in the state of Washington in 1993; California followed with its version in 1994.
The rationale for the law seemed sound, when it was enacted. According to the 2005 report, “A Primer: Three Strikes–The Impact After More Than a Decade,” on the California Legislative Analyst’s Office website, it was enacted because “Repeat offenders are perhaps the most difficult of criminal offenders for state and local criminal justice systems to manage. These offenders are considered unresponsive to incarceration as a means of behavior modification, and undeterred by the prospect of serving time in prison. For this reason, longer sentences for this group of offenders have a strong appeal to policymakers and the public.
“Supporters . . . argued that imposing lengthy sentences on repeat offenders would reduce crime in two ways. First, extended sentences, also referred to as sentence enhancements, would remove repeat felons from society for longer periods of time, thereby restricting their ability to commit additional crimes. Second, the threat of such long sentences would discourage some offenders from committing new crimes.”
Even though a number of individuals and organizations have openly supported Proposition 36, including Los Angeles Police Chief Charlie Beck, the initiative has opposition from the California District Attorney Association (CDAA) and the president of the California State Sheriff’s Association.
In September 2012, the CDAA released a report explaining why Proposition 36 is an unwise decision for voters. The report claims “the proposition would create serious risks to public safety. Crime has declined in California since the adoption of the Three Strikes law. Additionally, the third-striker population only makes up about 6.6 percent, a small fraction of all criminals serving prison sentences in the state.”
According to the Legislative Analyst’s Office report, the decline in crime began well before the Three Strikes law was adopted.
“In fact, the overall crime rate declined by 10 percent between 1991 and 1994,” says the report. “The crime rate continued to decline after Three Strikes, falling by 43 percent statewide between 1994 and 1999, although it has risen by about 11 percent since 1999. Similarly, the violent crime rate declined by 8 percent between 1991 and 1994 and then fell an additional 43 percent between 1994 and 2003. It is important to note that these reductions appear to be part of a national trend of falling crime rates. National crime rates–as reported by the Federal Bureau of Investigation’s Uniform Crime Report–declined 31 percent between 1991 and 2003, with violent crime declining 37 percent over that period.”
Proposition 36 could fiscally impact the state by saving anywhere between $70-$90 million dollars a year, says the Legislative Analyst’s Office. However, it could cost a few million in court activity fees once the re-sentencing process begins for certain offenders.
Again, early ballots show Californians are trying to find ways to reduce costs in the prison system. A poll released by USC Dornsife/Los Angeles Times found two-thirds of California voters are in favor of revising the Three Strikes law.
This may look promising, but Erskine, Silva, and other advocates opposing the Three Strikes law were in this position four years ago. Silva hopes the law will pass in order to vindicate the leaders of FACT who died wishing for this amendment’s existence.
“I don’t get what is there to be against? Giving a person six years rather than 20 years?” Silva said.
“You just have to allow those who are really against it to think the way they think,” Erskine said. “They don’t have too much mercy on their outlook on life. I believe this time it will pass, though. I think Californians have been fooled long enough about this law. This time, they will adjust.”