California's 'tough on crime' stance gets a limp referendum
Author's note: This is an updated, unedited version of a story that first appeared in the Sept. 27, 2012 issue of the Sacramento News & Review.
Don’t believe the cable news chatter about California being some bastion of weak-tea liberal values. When it comes to our criminal justice system and its penchant for mandatory sentencing guidelines, gang enhancements and the death penalty, the golden state is as red meat as they come.
“It’s remarkably out of synch with the rest of the country,” contends McGeorge School of Law professor Michael Vitiello.
Which is why two initiatives on this November’s ballot are rustling some eyebrows. The impressively funded, broadly supported Proposition 36 aims to modify a Three Strikes law that voters overwhelmingly adopted way back in 1994.
Specifically, Prop. 36’s authors want to make sure that anyone going away for 25 years to life on a third-strike conviction is being prosecuted for a serious and/or violent offense, rather than for stealing videotapes. (More on that later.)
Proposition 34, meanwhile, is taking on the very death penalty itself—not because it’s unethical for a government to execute its own citizens, but because it’s too fucking expensive. A study last year by former prosecutor and federal judge Arthur Alarcón says it cost California roughly $4 billion to snuff out 13 death row inmates since voters reinstated capital punishment in 1978. Prop. 34 promises to save hundreds of millions of dollars a year, and put a chunk of that toward solving more murders and rapes.
Likewise, Prop. 36 makes its case on largely pragmatic grounds, with proponents dangling the juicy carrot of $70 million to $90 million in projected annual savings if the measure passes.
With two ballot initiatives that fly in the face of the accepted “tough on crime” paradigm, the question becomes whether California is experiencing something of a sea change when it comes to its counterintuitively hard-assed stance on crime and punishment.
“I see only a weak trend, not one that’s going over a cliff,” observed Vitiello, an expert on sentencing reform.
Lumping the two propositions together to form such an argument is dicey, Vitiello adds, because one measure is a serious reexamination of how fairly the criminal justice system acquits itself…and the other is about not killing bad people. Which doesn’t have a chance. Sorry.
Despite some big-name endorsements and a $5.5 million war chest, support for repealing the state’s death penalty and replacing it with automatic life sentences is trailing by an 8-point margin, according to the latest polling data from the California Business Roundtable and Pepperdine University’s School of Public Policy.
A more recent survey from the California Field Poll put the contest somewhat closer, with Prop. 34 still trailing by a 45-43 margin with a sizable contingent of undecided voters.
The odds of modifying the current Three Strikes law are much more favorable, however. Tracking of that initiative by CBR/PU shows current support at 81.1 percent, and has never dropped below 71.7 percent.
“The three-strikes initiative really looks like it has a chance to pass,” Vitiello said.
Then again, the criminal law professor and avid blogger thought the same exact thing in 2004, when a very similar reform effort marched under the Prop. 66 banner. As in this race, those in favor of modifying Three Strikes had the money, favorable public opinion and scattered organized opposition. That is, until days before the election, when Broadcom Corporation co-founder Henry Nicholas, whose sister was murdered in 1983, pumped millions of dollars of his personal wealth into a television and radio ad campaign that convinced voters they would be up to their necks in homicidal maniacs if Prop. 66 passed. (The advertising blitz featured members of the bands Korn and Orgy, who have since gone on to do mediocre things.) The initiative ended up losing by a 5-point margin.
Barring a similar last-minute cash-dump that reenergizes a slumping opposition, Vitiello doesn’t expect a repeat come-from-behind loss this November.
This time around, district attorneys in the counties of Los Angeles, San Francisco and Santa Clara have thrown their support behind the reform effort, which has raised $1.8 million to the opposition’s $100,000. And the two Stanford University law professors who authored this year’s model crafted it in such a way that perpetrators of certain non-violent, “non-serious” sex and narcotic offenses, as well as crimes in which a firearm was used, won’t benefit from the law’s modified sentencing mechanisms.
That doesn’t mean there aren’t those who still think the initiative is a terrible idea.
If adopted, the law would be retroactive, meaning someone like 25-to-lifer Leandro Andrade could petition the court to re-sentence him for the crime of filching $150 worth of videotapes 17 years ago in southern California. Andrade is in the unique position of being a poster child for each side of the Prop. 36 debate.
The California District Attorneys Association—which, ironically, opposed Three Strikes back in 1994—released a position paper this month citing Andrade as someone with “a horrific criminal history” who might be sprung early if the ballot measure passes. A U.S. military veteran who has struggled with drug addiction, Andrade’s case went all the way to the Supreme Court in 2003. The high court upheld a 50-year sentence for Andrade, who had multiple prior convictions for residential burglary and drug trafficking before stealing a total of nine videotapes from two different Kmart stores in San Bernardino County in 1995.
Cases like Andrade’s raise the question of how fairly Three Strikes is being applied around California. Sacramento County District Attorney Jan Scully, who came out against changing the current law, said in an April 26 statement the law was being used “very judiciously by prosecutors and judges throughout the state.”
Those who work for her agree.
“It’s not that disproportionate at all,” said assistant chief deputy district attorney Steve Grippi. “To the degree that it is, that’s why district attorneys are elected by the public.”
A lack of uniformity in applying Three Strikes isn’t necessarily a problem to be fixed, both Grippi and supervising deputy district attorney Anne Marie Schubert argue.
“You’re always going to find examples of different deals,” offered Schubert. Some communities might pass laws that say no homeless people within 300 feet of schools, she said by way of example, while others might not consider such ordinances. “It depends on the community that you live in.”
Indeed it does. According to California Department of Corrections and Rehabilitation records from September 2011, San Francisco County has a total of 43 three-strikers in prison. A more conservative county like San Bernardino, which has slightly more than twice the population of San Francisco, boasts 625.
Sacramento County has 574 three-strikers in state prisons, accounting for 6.4 percent of that population. Along with some very serious crimes, those numbers include two inmates whose third strike was for driving under the influence, one who was caught selling marijuana, and 28 inmates busted for possession of a controlled substance.
The state prison system is currently home to nearly 8,900 three-strikers. The CDA association claims 4,300 of these inmates could be eligible for re-sentencing hearings under the proposed law, but says nothing of the 4,000-plus African-American inmates that make up a whopping 46 percent of the three-strike prison population.
Grippi agrees that’s a figure that needs scrutinizing.
“I think that’s something that should be studied, definitely,” the prosecutor said. Sacramento County doesn’t tally the ethnic or racial breakdown of its three-strike offenders, Grippi says, because it’s not a consideration that comes into play. The prosecutor admits it wouldn’t be impossible to extract such figures.
Vitiello believes that racial disparity in how Three Strikes and other criminal penalties—from drug possession to gang enhancements to the death penalty—are applied is one factor nudging a glacial re-envisioning of our hard-ass criminal justice system.
But there are more reasons for it to remain the unforgiving system we all know and fear.
“I find it fascinating in kind of a perverse way that in such a blue state we have such a conservative criminal justice policy,” Vitiello said. “There are much less expensive ways to handle criminal offending. So why hasn’t that caught on in California?”
For supervising DA Schubert, the department’s resident expert on death penalty cases, the answer is simple.
“It’s not a red state, blue state thing,” she said. “For us, it’s about the victims of crime.”
The death penalty has been tied up in legal limbo the past few years and Schubert blames state politicians for ignoring “tons of bills” that could get the death row conveyor belt moving again. But the outspoken prosecutor isn’t deterred. She believes a fix will eventually come
“Californians want to be safe, and Three Strikes makes us safer. The death penalty makes us safer,” Schubert said.
There will always be a raging debate about how effective a deterrent the death penalty is, but Schubert brushes them away by citing the movie theater massacre in Aurora, Colo., and by name-checking notorious Toonerville gangmember Timothy Joseph McGhee, one of 725 death row inmates in name only.
McGhee was sentenced to death in 2009 for the murder of three fellow Los Angelenos, and making sport out of attacking cops. A few weeks ago, the 39-year-old stuck an 8-inch shank into a prison guard, Schubert relayed.
“We are safe when his sentence is carried out,” Schubert declared.
Call it the Golden (State) Rule.
