Prop. 36 Will Release Felons from Prison. Who Gets Out?

Passing with 68% of the vote last Tuesday, Proposition 36 softened California’s controversial three strikes law, one of the toughest sentencing rules in the country.

Three strikes, which voters put in place in 1994, allows for sentences of life in prison for anyone convicted of three felonies, regardless of the crime.

Prop. 36 will let some “third strikers” out of prison if their felonies were not serious or violent. And it will shorten the sentences given for new third-strike offenses.

But how many people will get out of prison under the new measure? Not as many as you might think, California Watch investigative reporter Michael Montgomery told KQED Online Editor Jon Brooks.

Jon Brooks: Are we going to see a flood of felons leaving state prisons?

Michael Montgomery: Inmates who were sentenced under the law, whose third strikes were not violent felonies or serious felonies, will be eligible to petition the judge in the original court for a re-sentencing. However there is a provision that disqualifies an inmate from possible re-sentencing if his first or second strike included very serious crimes such as rape or murder. There are just under 9,000 three-strikers in prison, total. Just over half of those have violent, or serious, third strikes. So, you’ve already whittled the number down to about 4,000.

The number you sometimes hear is three- to three-and-a-half-thousand people who could be eligible. Experts who’ve looked at this say that the number is actually a lot smaller than that, maybe 2,000, but probably even smaller than that, because of various elements to people’s sentences and previous felonies. So, I think right now we can say perhaps hundreds of inmates will be eligible for resentencing. What’s interesting is that the text of Proposition 36, when you read the text, which is a very long text, you realize how careful, and in fact narrow, the measure is. Not surprising, if you’re going to get the buy-in from people like LA County District Attorney Steve Cooley and Grover Norquist.

Jon Brooks: Grover Norquist supported the measure? What was his reasoning?

Michael Montgomery: There’s a movement among conservatives in the US called “Right on Crime.” Grover Norquist is part of it, Jeb Bush, Newt Gingrich. The idea, particularly with Norquist, is that mandatory minimum sentencing, which is sort of what Three strikes is, in an extreme sense, is a waste of resources, that we shouldn’t be sending away low-level drug offenders to prison at huge cost to the taxpayers, when there are much more efficient,  effective and cheaper alternatives.

Jon Brooks: So, it’s sort of an extension of their anti-tax positions?

Michael Montgomery: For Norquist, it is. I interviewed a guy named Craig DeRoche. He’s in this Prisons Fellowship, this is the group that Chuck Coleson started – the Watergate guy – and also Pat Nolan has been involved. He was a former California lawmaker who was sent to prison on corruption charges, converted to Christianity, born again.

Their feeling is that conservatives have scrutinized every aspect of government except criminal justice policy. They’ve come around to the feeling that there are some things that are out of whack. And they would point to California’s three strikes as a great example of that. It’s totally interesting. Go to their web site; it’s fascinating, and look at Norquist’s statement. “Grover Norquist’s Remarks on the Conservative Case for Criminal Justice Reform.” He did endorse Prop 36; it’s on the Yes on 36 web site. Look at the supporters of [Prop] 36, scroll way down, and you’ll see some conservative groups.

Jon Brooks: Why were the backers so careful in writing the text?

Michael Montgomery:  The back story to Proposition 36 is that the group of people who put it together had to work very, very, very hard to convince Steve Cooley to sign on. And they got his agreement, his support, and I think that that was critical to 36’s success. If you had the DA’s from the biggest cities in California -- San Francisco, Los Angeles, San Jose and Jeff Rosen --  you had high-profile DA’s supporting it. They made a TV ad which you can check out; it’s on their web site. That made a huge difference at reassuring voters that this wasn’t a soft-on-crime measure, that it wasn’t going to endanger public safety.

Another thing that’s interesting is, you can debate, “Is the success of Prop 36 in its symbolic importance, or in its practical importance?” I would argue possibly that it’s really in its symbolism for two reasons. It shows that voters are willing to back a measure that brings more leniency into sentencing. I think the San Jose Mercury News looked at this, and they said it’s only the second time in the last hundred years that there’s been a voters’ initiative that’s actually ratcheted-down on sentencing. The other thing that’s hugely important is that this shows to other politicians that you can publicly support sentencing reform and not get burned as being called “soft on crime.” I mean, that’s the hope in any case. You know this has been one of the third rails of politics for a long time, especially in California. I mean, you had three Supreme Court judges recalled for being called “soft on crime.”

Jon Brooks: For the death penalty.

Michael Montgomery: Exactly. And so the politics of this are really interesting, maybe more than its impact on criminal justice.

Jon Brooks: You were saying that some of the poster children for reforming the law -- like the guy sentenced to live in prison for walking away with a slice of pizza -- almost all of that sort of sentencing happened before 2000.

Michael Montgomery: It’s not that if you qualify, you just immediately get a sentence reduction. You have to go to the judge, and there is a provision here that the judge can consider the petitioner’s disciplinary record and record of rehabilitation while incarcerated. And if a judge determines that you haven’t done well enough behind bars, they could very much deny your petition, and this “pizza thief” could remain behind bars for his 25-life sentence. So, it’s not automatic. And the judges still have a lot of discretion. One other very interesting question is, in the run up to Proposition 36, we interviewed Carl Adams, the head of the District Attorneys’ Association of California. They opposed Proposition 36, as did almost all district attorneys in the state.

Jon Brooks: Except for the high-profile ones you talked about.

Michael Montgomery: Except for the three. And, will these district attorneys band together and fight these cases, these petitions? Will there be an active opposition? Will they go to the judge and really try to block, get these petitions denied? It’s going to be very interesting to see how that plays out.

Jon Brooks: Are the district attorneys part of the process formally, as opposed to just weighing in? Do they need to sign off on something?

Michael Montgomery: No. It’s up to the judge, but they could influence the judge, no doubt.

Jon Brooks: Let’s get back to the pre-2000 inmates.

Michael Montgomery: According to the District Attorneys’ Association, around 85% of the current three strikers were sentenced before 2000. So, there’s this idea that in the first years after three strikes passed were the years when the most egregious cases happened. And since the early 2000’s, particularly when Los Angeles District Attorney Steve Cooley adopted these reforms, he said, “Look, we’re not going to send away non-violent, low-level criminals as three-strikers.”

Jon Brooks: So, he was already subscribing to this?

Michael Montgomery: Absolutely. You could argue that Proposition 36 affirms the Steve Cooley approach to three strikes. And in fact, Cooley has said on KQED that Proposition 36 is the best way to preserve the three strikes law and protect it from future legal challenges.

In his view, the way LA County approaches three strikes is “sound.” Now, there’s an interesting debate about that, because under the Cooley approach, which has now been adopted by California voters, people convicted of three so-called “serious crimes” are eligible for life sentences. But a serious crime can be a home burglary. So, we’re still in a situation where it’s possible that someone could be sentenced for 25-life for three burglaries of an unoccupied home.

Jon Brooks: Is LA County so important because they send a majority of felons to prison?

Michael Montgomery: Yeah, it’s huge. I don’t know the percentage, but one other thing to point out is that even though there’s the Cooley rule, which big-city prosecutors adopted, but there’s still prosecutors in smaller counties who were sending people to prison for life on fairly low-level crimes, in terms of three strikes. So, the argument in support of Proposition 36 is, “We have to have some consistency statewide.” It’s unfair to have someone convicted in San Francisco go to jail for maybe five years while if that same person was convicted for the same crimes in Kern County, they’re going to get 25 to life. That’s really not a good idea in the eyes of the supporters of Proposition 36

Jon Brooks: So, as the judges have to go and sign off on this stuff, that also could be County-dependant.

Michael Montgomery: Right. Now opponents of 36 argue that judges already have discretion; they can knock down a strike. It’s up to the prosecutor and even the judge. If three strikes were automatic, California would have tens of thousands of people behind bars for life.

Jon Brooks: That’s why I was so surprised to find out it was so few prisoners. I thought it was filling the jails up.

Michael Montgomery: I think a lot of people when the see the numbers are surprised and probably thought there were more three strikers than there are. However, there is the two strike element, and this is an important thing. What mandatory minimums are about, is essentially sentence enhancements that are automatic. There’s a strong argument that a key factor in our crowded prisons are these sentence enhancements. It’s not that we’re sending more people to prison. It’s that we’re sending people to prison for longer periods of time. At least, that’s the bigger factor. And so, one element that Proposition 36 does not address is this “two strikes,” which is a doubling of your penalty, if you have a second felony. The estimates are that there are more than 30,000 people in California prisons serving two strike terms. Check out the article about this by Marisa Lagos, It’s the elephant in the room, or the gorilla in the room.

Jon Brooks: Two felonies, you double the penalty? And they don’t have to be violent felonies?

Michael Montgomery: That’s right. So, if people thought that Prop 36 is going to be a major factor in reducing prison overcrowding, they’re going to need to reconsider that, because it’s not.

Jon Brooks: And Prop 36 says nothing about two strikes?

Michael Montgomery: Nothing. So, critics of 36, let’s say on the liberal side, will say that it doesn’t go far enough, because we still have in place this idea of very long sentences for let’s say ‘mid-level’ crimes. Do we want to do that as a society? Is it helpful or not? I don’t know how voters feel about that, but it certainly wasn’t on the ballot.

Jon Brooks: Last thing, I wanted to ask about the failure of the death penalty initiative, Proposition 34. A colleague wondered if people split their criminal justice vote -- if they were uncomfortable about voting to abolish the death penalty, they felt they could overturn three strikes.

Michael Montgomery: That’s really interesting. In talking to some of the people who were involved in writing the ballot initiative for three strikes, running up to the vote, there was this idea that people were going to pass it, because it was about money, and we’re in a recession, and it was really just about saving money. If that were the case, then people would have also voted for the death penalty. What supporters of 36 say is that the money is sort of icing on the cake. You had to have a story. There had to be a story to tell that people would be engaged in. And if you look on the Yes on 36 web site, read some of those stories. They’re very moving. There is a sense of injustice. I would argue is that if it had just been the injustice, I’m not sure 36 would have passed. But because you had a sense of injustice and an incredible waste of taxpayers’ money, those things together worked.

In the case of capital punishment, there are no poster cases of injustice. There’s no specific case of someone being executed who was wrongfully convicted. There are wrongful convictions, but I think people feel that there is a system to address that. We see people who’ve gotten out after being wrongfully convicted.

Another interesting element is that Proposition 36 people kept their distance from Proposition 34. They did not want people to confuse the two measures. It’s difficult when you look at some of the people who are on death row, it’s difficult for voters to sense injustice. It’s really hard, even though I think a lot of Californians are uncomfortable with state-sanctioned executions. It’s hard to get into the story of these people and not be disgusted.

The other important thing about Proposition 36 is that there was no active opposition. I mean, the opponents of Proposition 36 raised about $130,000. There were no TV ads. Don’t forget last time, in 2006, a ballot measure to change three strikes, four governors went publicly against it, including Jerry Brown. There were TV ads with Arnold Schwarzenegger that he paid for himself, that came on right before the vote. That was a major push against it. And the measure wasn’t as narrowly crafted. We didn’t get any of that this time. Brown was silent, the prison guards’ union was silent. In a sense, I think Prop. 36 got either the explicit or the tacit support of the political establishment in California.

Jon Brooks: And who financed it?

Michael Montgomery: George Soros put in I think a million dollars. David Mills, who’s an investor, who also teaches at Stanford, put in almost a million dollars. Here’s one more thing. Part of this story is about Stanford Law School. There was a team of devoted professors and students who really took on both cases of three strikers who they’ve gotten out of prison – at least two dozen – but also getting this measure crafted, getting support. You know, without Stanford University’s law school, it may be that this measure wouldn’t have existed, or it wouldn’t have passed. So, for people who supported 36, they need to tip their hats to Stanford Law School.