BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
7
9
SB
79 (Hayden)
As Introduced December 7, 1998
Hearing date: April 6, 1999
Penal Code
JM:jm
" THREE STRIKES" LAW -
RESTRICTION OF LIFE TERM TO CASES WHERE
CURRENT CONVICTION IS A SERIOUS OR VIOLENT FELONY
HISTORY
Source: Author
Prior Legislation: SB 2048 (Vasconcellos) 1998 - vetoed by
Governor (as study bill)
SB 1317 (Lee) 1997 - failed passage on Senate
Floor
SB 2089 (Marks) 1995 - failed passage on Senate
Floor
AB 1444 (Kuehl) 1996 - failed passage in
Assembly Public Safety
Proposition 184, November 1994 - Enacted
AB 971 (Jones/Costa) Chapter 12, Statutes of
1994
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Support: ACLU; California Public Defenders Association;
California Attorneys for Criminal Justice;
California NORML; Lutheran Office of Public
Policy; Families to Amend California's Three
Strikes; numerous individuals
Opposition: California District Attorneys Association;
California Correctional Peace
Officers Association; Committee on Moral Concerns;
California State Sheriff's Association; Doris Tate
Crime Victims Bureau
KEY ISSUE
SHOULD A LIFE TERM IMPOSED UNDER THE "THREE STRIKES" LAW BE LIMITED TO CASES
IN WHICH A DEFENDANT HAS BEEN CONVICTED OF A CURRENT SERIOUS OR VIOLENT
FELONY, WITH TWO OR MORE SUCH PRIOR CONVICTIONS?
PURPOSE
The purpose of this bill is to require that a defendant in
the current case be convicted of a serious or violent
felony before a life term can be imposed under the "Three
Strikes" law (which does require the prior convictions be
serious or violent).
Existing law provides that a defendant, who is convicted of
any current felony, with prior convictions of two or more
"violent" or "serious" felonies, must receive a life
sentence with a minimum term of 25 years. (Penal Code
section 667(a) and (d)(2)(i); section 1170.12(a) and
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(c)(2)(A); and section 1192.7)<1>
Existing law further provides that where a defendant is
convicted of any felony with a prior conviction for a
single serious or violent felony, the sentence imposed must
be twice the term otherwise provided as punishment. (Penal
Code section 667(d)(1) and section 1170.12(c)(1))
Existing law further provides that affected defendants may
not receive probation, there is no limitation on the
aggregate term, conduct credits are limited to 20% of the
term (instead of the usual 50%), and any additional
convictions must be imposed consecutively. (Penal Code
section 667(c) and section 1170.12(a))
Existing law , unlike five year serious felony enhancement
provisions, does not require that prior qualifying
convictions arise in separate cases, and qualifying prior
"strike" convictions need not arise from separate
transactions that can otherwise not be separately punished.
(People v. Fuhrman (1997) 16 Cal.4th 830; People v. Benson
(1998) 18 Cal.4th 24, 30; Penal Code section 667(a))
Existing law provides that a juvenile adjudication of a
sixteen-year old must be counted as a prior "strike" if the
offense otherwise qualifies as an adult strike or would
establish presumptive unfitness for juvenile court under
Welfare and Institutions Code section 707(b), and the minor
was declared to be a ward of juvenile court for commission
of an offense listed in Welfare and Institutions Code
section 707(b). (Penal Code section 667(d)(3) and section
------------------------------
<1> The minimum term for any defendant with two prior
serious or violent offenses must be at least 25 years. In
many cases, multiple terms of 25 years to life may be
imposed - one for each count (separately charged offense)
which does not arise from the same operative facts in the
current case. (Penal Code section 667(c)(6)) According to
a complex formula, in a rare case, a different minimum term
may be imposed if it would result in a longer sentence than
25 years. (Penal Code section 667(d)(2)(A)(i-iii))
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1170.12(b)(3))<2>
This bill would require that a defendant be convicted in
the current case of a serious or violent felony, with two
or more prior serious or violent felony convictions, before
a life term can be imposed.
COMMENTS
1. Expressed Purpose of the Bill
According to the author:
Senate Bill 79 does not undo "Three Strikes." Nor
does it renege on the promise made to voters in 1994
to get violent criminals off of our streets. What SB
79 does is to revise current law to require a third
"strike" be a serious or violent felony - as the first
two must be.
In order to achieve any sense of justice, sentences
must be proportionate to the crime. "Three Strikes"
fails in this sense because relatively minor criminals
are unjustly receiving sentences of 25-years-to-life.
Under "Three Strikes," drug addicts and petty thieves
are seen in the same light as cold-blooded,
first-degree murderers. Should the punishment for
possession of any amount of cocaine be the same as for
premeditated murder?
---------------------------
<2> There is substantial overlap among the lists of violent
felonies, serious felonies and crimes of presumptive
juvenile unfitness. However, a few crimes, such as
residential burglary do not constitute unfitness crimes.
The California Supreme Court has not finally determined
whether a juvenile adjudication for a serious felony such
as residential burglary counts as a "strike" in a later
adult case. This issue is before the Supreme Court in
People v. Gentry S069817.
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Contrary to the arguments of the proponents of "Three
Strikes," the law does not merely put murderers, child
molesters and career criminals behind bars for life.
A recent study by the Justice Policy Institute found
that of the nearly 40,000 inmates imprisoned under the
"Three Strikes" law, the great majority were convicted
of non-violent crimes. While thirty percent were
convicted of drug violations, another thirty-seven
percent were found guilty of property crimes.
Meanwhile, only one percent of "Three Strikes"
prisoners were convicted murderers.
Further, the study found no correlation between
California's drop in crime and the "Three Strikes"
law. Using data from the Department of Corrections
and the Department of Justice, the study revealed that
the counties most aggressively relying upon "Three
Strikes" did not enjoy the greatest reductions in
crime. For example, San Francisco County, which uses
"Three Strikes" less than any other county in
California, experienced a greater decline in all
violent crime - murder, rape, and assault - than
counties such as Sacramento and Los Angeles that are
particularly active in "Three Strikes" prosecutions.
Another remarkable finding of the JPI study is that
the age group thought most likely to be affected (and
deterred from crime) by "Three Strikes" - previously
convicted felons between thirty and thirty-nine years
old - actually committed more crimes since the passage
of "Three Strikes." This increase in crime among the
"Three Strikes" target age bracket bucks a clear trend
of falling crime rates. This finding belies the
assertion that "Three Strikes" deters crime.
The JPI report is the latest of many studies to use
hard data to contradict political rhetoric that "Three
Strikes" has made our streets safer. Crime rates have
fallen in California, to be sure. However, crime
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rates have fallen even more in states without "Three
Strikes" laws.
"Three Strikes" may make for good political rhetoric
and provide crime victims with a sense that their
personal tragedies have at least brought positive
changes in the criminal justice system, but what is
the cost of this essentially illusory benefit?
California is spending $4 billion a year to operate
the world's largest prison system, a system that
houses a much lower percentage of violent offenders
than in the past. In 1997, violent criminals made up
only 42% of the prison population, while drug
offenders constituted 27%, up from only 8% since 1984.
And while the state has added 21 prisons since 1984
to accommodate the drug war and "Three Strikes," only
one university campus has been built to serve our
fast-growing population.
"Three Strikes" proponents argue that the measure has
saved the state $21.7 billion by preventing more than
a million crimes and nearly 5,700 murders. While
"Three Strikes" can be credited for taking some
criminals off of the street, the data shows that the
crime rate began falling before "Three Strikes" went
into effect. Study after rigorous study has
demonstrated that an improved economy, changes in
demographics and other such factors likely have more
to do with the drop in crime than the "Three Strikes"
law.
SB 79 will retain the core of "Three Strikes' - the
law that the electorate believed they were passing in
1994. Truly violent criminals will be removed from
society for life. However, people who commit
relatively minor offenses, and whose prior convictions
may have occurred many years in the past, will not be
warehoused in prison at taxpayer expense.
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2. " Three Strikes" in More Detail
The "Three Strikes" law was enacted by AB 971 (Jones/Costa)
Chapter 12, Statutes of 1994 and by Proposition 184.
Mandatory provisions of "Three Strikes" beyond those listed
in "existing law," above include:
A juvenile adjudication (a findings by a
juvenile court judge that the minor committed a
crime) may constitute an adult strike prior,
although a juvenile cannot have a jury trial of
charges against him or her. (See: Comment #3
below.)
A person sentenced under "Three Strikes" may
not be committed to any facility other than prison.
"Three Strikes" prohibits plea-bargaining.
"Three Strikes" eliminates any "washout"
period, requiring that any prior serious or violent
felony conviction be used regardless of when it
occurred.
Under "Three Strikes," the prosecuting attorney
must plead and prove each prior felony conviction.
"Three Strikes" may only be amended by a
two-thirds vote of the Legislature or a ballot
measure approved by the electorate.
3. Issues Related to Prior Juvenile Offenses (Adjudications) to
Establish Prior "Strikes" in Adult Prosecutions
The "Three Strikes" law defines a prior juvenile adjudication as
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a prior strike "conviction"<3> where the following are shown:
The minor was at least 16 years old;
The minor was found to be fit for juvenile court
treatment;
The prior offense was one which rendered him or her
presumptively unfit for juvenile court (Welfare and
Institutions Code section 707(b)) or is defined as a
"serious" or "violent" felony for purposes of adult
sentencing;
The minor was adjudged to be a ward of the juvenile
court for a crime of presumptive unfitness. (Penal Code
sections 667(d)(3) and section 1170.12 (b)(3))
Arguably, these provisions are internally inconsistent or vague.
The California Supreme Court in People v. Davis (1997) 15
Cal.4th 1096, a 4 to 3 decision, held that no special "fitness"
hearing was necessary to render a juvenile adjudication a
"strike" in a later adult prosecution, as such a finding is
implied in every juvenile adjudication. (Id, at 1098-1102.)
The ruling in Davis was contrary to the belief of many
practitioners. Some district attorneys sought specific findings
of fitness by judges or admissions of fitness as part of plea
agreements in juvenile cases to insure that a juvenile offense
would later constitute a prior "strike" conviction.
The court in Davis left "for another day" the determination of
whether juvenile serious felonies such as first degree burglary,
which are not listed as crimes of presumptive unfitness in
Welfare and Institutions Code (W&I) section 707(b), constitute
strikes. (Id, at 1103.) That day will apparently dawn with the
issuance of the ruling in People v. Gentry, S069817. The
--------------------------------
<3> Juvenile delinquency matters are technically civil, not
criminal, cases. As the purpose of juvenile court law is
rehabilitation of the minor and public safety, jury trials
are not allowed and the minor may not refuse probation.
(See: Welfare and Institutions Code section 202 et seq.)
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appellate court in Gentry held that a prior juvenile offense
must be listed in Welfare and Institutions Code section 707(b)
in order to constitute a strike in a later adult prosecution.
The Supreme Court has let stand an appellate decision contrary
to Gentry, in People v. Griggs (1997) 53 Cal.App.4th 57, that
held that failure of the "Three Strikes" law to clearly state
that all juvenile serious felonies constitute strikes in later
adult cases was a "drafting error." If the Supreme Court so
finds, the drafting error will be momentous.
Many, if not most, practitioners believed that juvenile crimes
such as first degree burglary did not constitute strikes, and
thousands of juveniles admitted such offenses upon advice of
counsel consistent with that belief. Even where minors did not
admit the commission of serious felonies, they were not entitled
to jury trials.
4. Differentiation among Felonies
Existing law differentiates between the severity of crimes.
Thus, some felony offenses, such as rape or murder, have
higher penalties than others do, such as theft.
Under "Three Strikes," any felony conviction, not only a
serious or violent felony conviction, following a violent
or serious prior, results in a sentence of twice the normal
length. With any two violent or serious felony priors, a
new felony conviction results in a life sentence. Thus,
"Three Strikes" makes no distinction in severity between
different felonies.
For example, a person who was convicted of breaking into a
neighbor's garage, whether attached to the home or not, on
two occasions in order to steal a bicycle, and who was
placed on probation for the offenses, would have two
serious prior offenses. Any residential burglary is
defined as a "serious" felony, whether it occurs in the day
or night and whether or not someone is actually in the
residence. Any third felony, such as theft of $400 worth
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of property, results in a life term under the provisions of
"Three Strikes," regardless of whether or not he or she had
ever acted violently or dangerously. Two counts of theft
not committed on one occasion or arising from the same
facts - two separate incidents - charged in one case will
yield two, consecutive terms of twenty-five years to life.
Since the third felony can be any felony, forgery of a $10
check, petty theft with a prior, or possession of a stolen
radio with two prior serious felonies would result in a
life sentence.
This bill would limit application of "Three Strikes" to
serious and violent felonies, as listed in Comment #3.
5. Violent and Serious Felonies Defined
"Three Strikes" incorporates the definitions of violent and
serious felonies as they existed on June 30, 1993. For all
practical purposes, all "violent" felonies are "serious"
felonies.<4> Thus the eligible "strikes" are aptly
demonstrated by the serious felony list, with additional
notations for violent offenses.
Serious and violent felonies, as defined by Penal Code
section 667.5(b) and section 1192.7, as they existed on June
-------------------------------
<4> Continuous sexual abuse of a child is a violent felony,
but is not listed as a serious felony. Continuous sexual
abuse of child would, however, generally involve repeated
sexual crimes against a child which are individually listed
as serious felonies in any event, such as lewd acts with a
child or forcible oral copulation of a child. Continuous
sexual abuse is generally charged in conjunction with other
crimes in order to fully punish relatives and intimates of
sexually abused children who abuse their special access and
control over the victims, and to lessen difficulty of proof
as to individual acts where the victim is very young and
has an undeveloped sense of time. (Penal Code section
288.5)
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30, 1993, include the following:
a. Murder or voluntary manslaughter (serious and
violent)
b. Mayhem (serious, and violent if by force or
threat of retaliation)
c. Rape (serious and violent)
d. Sodomy by force, violence, duress, menace, or
fear of bodily injury (serious and violent)
e. Oral copulation by force, violence, duress,
menace or fear of bodily injury (serious and
violent)
f. Lewd act with child under fourteen years of age
(serious and violent)
g. Any felony punishable by death or life
imprisonment (serious and violent)
h. Any felony in which defendant inflicts great
bodily injury on defendant or personally uses a
firearm (serious and violent)
i. Attempted murder (serious and violent)
j. Assault with intent to commit rape/robbery
(serious)
k. Assault with a deadly weapon on peace officer
(serious)
l. Assault by life prisoner on a non-inmate
(serious)
m. Assault with a deadly weapon by inmate (serious)
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n. Arson (serious, and violent if causes great
bodily injury)
o. Exploding a destructive device with intent to
injure (serious)
p. Explosion causing great bodily injury or mayhem
(serious)
q. Explosion with intent to murder (serious and
violent)
r. Burglary of inhabited dwelling (serious, and
violent if resident is present and weapon used)
s. Robbery or bank robbery (serious, and violent if
the robbery was a residential robbery with the use
of a weapon)
t. Kidnapping (serious, and violent if for purposes
of sex crimes against a child)
u. Inmate taking a hostage (serious)
v. Attempted death or life crime (serious)
w. Any felony where defendant personally uses a
dangerous or deadly weapon (serious)
x. Sale or furnishing heroin, cocaine, PCP, or
methamphetamine to a minor (serious)
y. Forcible foreign object rape (serious, and
violent in most cases)
z. Grand theft involving a firearm (serious)
aa. Attempts to commit any felony listed in a-z
except assault (serious)
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6. Judicial Discretion
The California Supreme Court held in People v. Superior
Court of San Diego County (Romero), (1996) 13 Cal. 4th 497,
that for purposes of "Three Strikes," a court may on its
own motion strike a prior felony conviction allegation in
the furtherance of justice. However, the court's
discretion to strike prior offenses is limited. "Its
exercise must proceed in strict compliance with section
1385(a) and is subject to review for abuse." (Ibid.)
The court must consider the rights of both the defendant
and of society and may not strike a prior solely for
reasons of judicial convenience or because of court
congestion or of an agreement to plead guilty, or because
of personal disagreement with the effects of the "Three
Strikes" law. Courts must focus on the nature of the
present offenses, the defendant's background and other
"individualized considerations."
In People v. Williams (1998) 17 Cal.4th 148, the California
Supreme Court further strictly limited the discretion of
trial court to dismiss a prior conviction. The court in
Williams essentially held that a trial court abuses its
discretion in dismissing a prior strike if the defendant's
criminality has been unbroken. This is true even where the
defendant's current conviction, as was the case in
Williams, is not for a serious or violent felony (a
conviction that qualifies as a prior "strike." A defendant
who seeks relief through a dismissal of a prior "strike"
must establish that he or she should be treated as though
he or she falls outside the scope of the "Three Strikes"
law. (Id, at 161.)
A trial court's discretion to deem a "wobbler" to be a
misdemeanor pursuant to Penal Code section 17(b), and the
Alvarez decision (People v. Alvarez (1997) 14 Cal.4th
968), may be slightly wider than the discretion to dismiss
a prior conviction. However such a decision must also be
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made only after consideration of all relevant facts,
including a defendant's prior qualifying ("serious" or
"violent") convictions under the "Three Strikes" law, such
a discretionary decision is also of limited scope.
The very limited use of sentencing discretion by trial
judges has been clearly demonstrated by applicable data.
Commitments to prison under the "Three Strikes" law stayed
virtually constant after the Romero and Alvarez decisions.
(Three Strikes Update, Legislative Analyst's Office,
October 1997.)
7. Current Data from the California Department of
Corrections Shows Who is in Prison under "Three Strikes "
a) Total prison population, March 29, 1999
159,911
Total prison population, March 29, 1998
156,662
Percentage increase in the last year
2%
b) March 4, 1999 DOC data analysis of "Three Strikes"
prison population:
Total cases under the "Three Strikes" law
account for approximately 30%
of prison inmates.
Second "strike" (one prior strike conviction)
inmates total 39,997
Third "strike" (two prior strike convictions)
inmates total 5,043
Total "strike" inmates
45,040
c) Breakdown of "strike" offenses by types of crimes
for which inmates were sentenced to prison:
"Second Strike" Cases (one prior "serious" felony):
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Crimes against Persons
20.0%
Drug Crimes
31.8%
Property Crimes
35.9 %
"Other" Crimes
10.4%
Missing Data
1.9%
"Second Strike" inmates with
non-serious/nonviolent current offenses are
approximately 78%.
"Third Strike" Cases:
Drug Crimes
19.4 %
Property Crimes
31.6 %
Crimes against Persons
40.2%
"Other" Crimes 8.9%
Missing Data
1.2%
"Third Strike" Inmates with
nonserious/nonviolent current
offenses are approximately 50%.
d) Specific Crime Comparisons:
Inmates Serving "Second Strike" (Doubled) Terms:
Simple Possession of
(non-marijuana) Controlled Substances:
8,157
All Sex Crimes
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1,237
Robbery (with and without weapons)
3,061
Commercial (non-residential) Burglary
3,287
Residential Burglary
1,978
Murder (first and second degree)
222
Total "Second Strike" Inmates
39,997
Inmates Serving "Third Strike" (Twenty-five Years to
Life) Terms:
Simple Possession of
(non-marijuana) Controlled
Substances 498
All Sex Crimes
239
Robbery (with and without weapons)
912
Commercial (non-residential) Burglary
347
Residential Burglary
580
Murder (first and second degree)
161
Total "Third Strike" Inmates:
5,043
8. Justice Policy Institute Statistical Study on Implementation
and Effects of "Three Strikes "
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The Justice Policy Institute (JPI) along with the University of
California, Irvine School of Social Ecology doctoral candidate
Mark Males recently published a study, Striking Out, on the
implementation of the "Three Strikes" law in various California
counties. The study used data collected by the Department of
Corrections and the California Department of Justice from the
twelve largest counties in California.
a) Data on the numbers and proportions of defendants
sentenced pursuant to "Three Strikes" by county:
The JPI study examined the data on the defendants sent
to prison from each of the twelve largest counties
under "Three Strikes" sentences. The data included
raw numbers and the proportion of "Three Strikes"
sentences in contrast to other prison terms from each
county. The study concluded that the proportion of
defendants sent to prison under "Three Strikes"
reflected the charging policies of the county district
attorney.
The authors of the study concluded that a county's
reliance upon, or heavy use of, the "Three Strikes"
law in sentencing did not correlate to lower rates of
crimes.
Counties such as Alameda and San Francisco that sent a
very smaller percentage of defendants to prison under
"Three Strikes" sentences had greater decreases in
crime, particularly violent crime, than did counties
such as Sacramento and Los Angeles, that relied
heavily upon "Three Strikes" in charging and
sentencing clients.
Table 3 from Striking Out
The counties sentencing the most heavily under "There Strikes"
do not show the biggest crime declines.
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Sentencing Rates: Postlaw change* in
rate of:
3rd 2nd &
3rd
All
Strike Strikes*
Homicide Violent Index
Sacramento 3.6 26
-22.1 -6.4 -3.2
Los Angeles 3.6 33.5
-27.9 -28.2 -27.5
San Diego 3.4 35.3
-38.2 -22.8 -28.1
Riverside 2.7 27.1
-25.7 -18 -24
Fresno 2.6 21.5
-20 -1.4
-9.2
Santa Clara 2.6 23.4
-24.6 9
-18.9
Avg. Six Heaviest 3.1 27.8
-26.4 -12.7 -18.5
Orange 2.4 21.1
-30.9 -15.6 -28.8
San Bernardino 2.1 17
-23.9 -20.9 -16.1
Contra Costa 1.4 15.7
-32.9 -21.7 -15
Ventura 1.3 18.8
-26.6 -24.3 -22
Alameda 0.7 5.9
-24.2 -17.2 -13.7
San Francisco 0.3 4.9
-31.8 -28 -24.5
Avg. Six Lightest 1.4 13.9
-28.4 -21.3 -2.0
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*Sentencing rate is per 1,000
felonies by county. Postlaw change compares
reported crime rate for
1995-1997 (postlaw) to that of 1991-1993 (prelaw).
(Source: California Criminal Justice Statistics Center;
California Department of Corrections, Date Analysis Unit.)
The JPI study authors summarized their conclusions about
county by county use of "Three Strikes" and crime rates:
Data clearly shows that counties that
vigorously and strictly enforce the "Three
Strikes" law did not experience a decline in
any crime category relative to more lenient
counties. The absence of any difference in
relative crime rates occurred despite the
fact that the six largest counties [in terms
of use of "Three Strikes"] applied the law
at a rate 2.2 times greater than the six
counties that invoked the law least. Even
more remarkable, the sevenfold greater use
of "Three Strikes" in Sacramento and Los
Angeles was not associated with a bigger
crime decline than in Alameda and San
Francisco, two counties that rarely use the
law. In fact, San Francisco, the county
which uses "Three Strikes" most sparingly,
witnessed a greater decline in violent
crime, homicides and all index crime than
most of the six heaviest enforcing counties.
b) Data as to the ages of defendants sentenced pursuant to
"Three Strikes":
The data indicated that the target population for
deterrence from "Three Strikes" - felons between thirty
and forty years of age - were not likely deterred from
crime, as crime rates grew in this age group after "Three
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Strikes" in comparison with other age groups in
California:
The JPI Study Concluded:
Under deterrence and selective
incapacitation theory, one would expect that
the most dramatic declines would occur in
the over thirty age group, since this is the
population disproportionately targeted by
"Three Strikes". In contrast, declines among
the twenty to twenty-four year old age
groups would be negligible because smaller
proportions of felons from this population
are receiving enhanced sentences. However,
age group crime patterns reveal a directly
opposite effect than what would be predicted
by the selective incapacitation and
deterrence arguments for "Three Strikes."
The table and graph below compare age group
crime patterns for the three years after the
law took effect (1995-1997) and the three
years prior to the law's enactment
(1991-1993). An analysis of crime data for
these years does not support the "Three
Strike" crime reduction through selective
incapacitation and deterrence effect.
Table 1: Older offenders are more heavily sentenced under
"Three Strikes"
Number sentenced for:
Number of 3rd Strike sentences per 1,000
2nd Strike 3rd Strike
Violent Crimes Felonies
Under 20 470 14
0.1
0
20-24 5,009 176
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1.7
0.5
25-29 7,603 653
7.1
1.9
30-39 15,297 2,224
13.9
3.8
40-49 5,873 1,071
16.7
4.6
50+ 1,111 220
10.7
3.5
Total 35,363 4,368
(Source: California Department of Corrections, Data Analysis
Unit. Second-Strike Cases,
June 30, 1998)
9. Bill Jones, California Secretary of State and Co-Author of the
"Three Strikes" Law :
Five-Year Report on the Success of "Three Strikes "
In a press release dated February 26, 1999, Secretary Jones
asserts that the "Three Strikes" law is responsible for the
decline in crime in California:
The theory was simple, if we could incarcerate the small
percentage of criminals who commit the vast majority of
crimes, we could effectively lower the crime rate and save
thousands of lives. Five years later, we have witnessed a
reduction in crime that is greater than even the most
optimistic "Three Strikes" supporters predicted.
Secretary Jones cited California Department of Justice (DOJ)
statistics that overall crime in California is down 38% and that
murder and robbery rates are down by 50%. He attributes the
decline to the "Three Strikes" law. Secretary Jones further
argues that "Three Strikes" has deterred recidivists:
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[I]n 1994, the year that "Three Strikes" was put in place,
more parolees left the state than entered for the first
time since 1976. That trend continues to this day.
The actual number of parolees leaving--as opposed to
entering--California is not stated in the report. The report
does not indicate whether "parolees leaving" have been formally
transferred to other states for supervision, absconded or have
left California after successfully completing parole, including
those who may have been residents of other states prior to
conviction in California.
The data from DOC indicates that a very small change in raw
numbers and proportions of California parolees who have opted
for sister-state supervision since "Three Strikes." Less than
2% of California parolees are in out-of-state supervision.
DOC data further reflects a less than 7% increase in the number
of California parolees who have opted for supervision in other
states since "Three Strikes" became law. This occurred over a
period of a time in which the numbers of prison inmates, and
hence the parole population, rose significantly.
Data from Department of Corrections on California parolees in
out-of-state supervision:
Out-of-state parole supervision for 1993
2045
Out-of-state parole supervision for 1995
2764
Out-of-state parole supervision for 1998
2193
Total parole population on March 28, 1999
112,614
Percentage of parolees out-of-state
2%
Similar trends are reflected in the numbers of out-of-state
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SB 79 (Hayden)
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parolees who have opted for supervision in California. The
numbers initially fell from 2,271 in 1993 to 1,275 in 1997.
However, in 1998 the number of out-of-state parolees in
California began rising again to 1,284. As of March 28, 1999,
1,316 sister state parolees are under California supervision.
This is occurring during a period when crime rates are declining
nationwide.
Finally, Secretary Jones argues that "[t]he economic savings to
the people of California from the reduction in crime during the
"Three Strikes" era is between $8.2 billion and $21.7 billion."
10. Cost of "Three Strikes "
On February 20, 1996, the Senate Committees on Judiciary,
Criminal Procedure, and Budget and Fiscal Review held a
joint informational hearing on "The Impact of 'Three
Strikes' Law on the Civil and Criminal Justice System in
California." Representatives were invited from state and
county correctional systems, judges, city and county
representatives, district attorneys, defense counsel,
police and sheriffs' representatives, and independent penal
and fiscal experts.
At the six-hour hearing, the Committees learned that the
impact of "Three Strikes" has varied widely between
counties, but courts, jails and prosecution and defense
efforts have been impacted in virtually all counties.
The Legislative Analyst's office noted at the hearing that
although more than 90% of all felony cases are disposed of
through plea bargaining in which the defendant ultimately
agrees to plead guilty, many fewer offenders are agreeing
to plead guilty in "Three Strikes" cases, presumably
because of the much longer sentences. This has resulted in
many more cases going to trial and many more defendants
being held in county jail awaiting or undergoing trial.
The backlog of criminal cases has pushed some misdemeanor
and low-level felony cases out of court, as well as civil
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SB 79 (Hayden)
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cases in some jurisdictions. The "Three Strikes" law has
limited the ability of public defenders' offices to handle
misdemeanor cases for indigent defendants.
Because of the impact "Three Strikes" cases have on jails,
some counties are no longer booking misdemeanants and are
releasing more sentenced and pre-sentenced "Three Strikes"
offenders from custody. Assaults within the jail systems
have increased, apparently due to the number of "Three
Strikes" cases, where the inmates are facing substantially
longer terms.
Recent data continues to document the cost of the "Three
Strikes" law, particularly in Los Angeles County, which
prosecutes approximately 40% of the "Three Strikes" cases
statewide. Through 1997, the cost of "Three Strikes" cases
to the Los Angeles County Public Defender's Office has been
over $80 million, costs to the prosecution totaled
approximately $75 million and costs to the Sheriff were
approximately $140 million. Because of the impact on Los
Angeles County, it has filed a claim with the Commission on
State Mandates for $322 million for the costs of "Three
Strikes" to the county through 1997.
The RAND Corporation reported on the cost of "Three
Strikes" implementation. The first, a 1994 study,
determined that full implementation of "Three Strikes"
could reduce crime by 21% at a cost to the state of an
additional $5.5 billion per year, primarily for prison
operations. RAND researcher, Dr. Peter Greenwood, Ph.D.,
testified at an Assembly Committee on Public Safety hearing
in October 1997 on "Three Strikes and Judicial Discretion"
that approximately 10% of the reduction in crime in
California could be attributed to the "Three Strikes" law.
Another RAND study, Diverting Children From a Life of
Crime: Measuring Costs and Benefits, concludes that a
combination of graduation incentives and parent training
could achieve a similar amount of crime reduction for less
than $1 billion, or less than 20% of the cost of the "Three
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Strikes" program.
11. Prison Saturation Population Numbers
The Associated Press, in an article printed in the April 2,
1999 issue of the Sacramento Bee reported that California
prisons are dangerously overcrowded. Current DOC data
shows a prison population of approximately 160,000. The
design capacity of all facilities is approximately 80,000.
The prison system is thus at 200% of capacity.
The Bee article, "April 2001, No More Room at Inn," quoted
Robert Presley, Director of Youth and Adult Correctional
Agency (YACA) on the conditions in California prisons.
Presley told the AP that the prison system "is approaching
critical mass . . . [By] April, 2001 . . . we will have
exhausted every cranny and nook."
Every "cranny and nook" includes converted gymnasiums, with
bunk beds in long rows, and other rooms and spaces never
designed to house inmates. Despite saturation inmate
numbers, the electorate has not approved a prison
construction (general obligation) bond in a decade. Other
forms of prison financing, including a complex leasing
arrangement between state agencies, is more expensive than
general obligation bonds. Such measures raise
constitutional budget issues and have not found easy
passage in the Legislature.
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SB 79 (Hayden)
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Director Presley noted in the AP article that YACA will
seek to increase drug treatment for prisoners. The Little
Hoover Commission has found such treatment to be quite
successful in reducing recidivism. However, under the
"Three Strikes" law, an inmate serving a life term for a
current drug offense cannot be released for at least twenty
years. Neither society nor inmates could see substantial
benefits from drug treatment for inmates imprisoned for
life at a current annual cost of about $23,000.
WOULD "THREE STRIKES" IMPACT ON THE JUSTICE SYSTEM BE
LESSENED, WITHOUT APPRECIABLE DANGER TO PUBLIC SAFETY, BY
LIMITING LIFE TERMS TO CASES IN WHICH THE DEFENDANT IN THE
CURRENT OFFENSE WAS CONVICTED OF A SERIOUS OR VIOLENT
FELONY AND BY DIVERTING THE INCARCERATION SAVINGS INTO
ALTERNATIVE PROGRAMS?
12. Argument in Support
California Attorneys for Criminal Justice writes in
support:
The proposal to amend the "Three Strikes" law to
require that the third strike be a serious or violent
crime has grown in acceptance in recent years as the
effect of the current law has become clear to more and
more people, both criminal justice professionals and
lay people. In a recent editorial, Joseph P. Charney,
a deputy district attorney in Los Angeles and an
adjunct professor at Loyola Law School wrote in
support of this bill: "Justice must be measured,
rational and proportionate or it isn't justice. Any
legislation that promotes a punishment scheme not in
conformity with this basic principal of fairness is
unjust. California's "Three Strikes" law, providing
life sentences for relatively minor offenses is such a
law . . . Besides disproportionate incarceration, the
"Three Strikes" law diminishes our system of justice
in other ways. By permitting lifetime incarceration
SB 79 (Hayden)
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for both minor and heinous crimes, punishment loses
its moral compass." (Los Angeles Times, March 8, 1999)
13. Opposition to This Bill
California District Attorneys Association writes in
opposition:
[This] measure would require that the third strike
against a person be a violent or serious felony. Even
though in 1994 CDAA supported a version of the "Three
Strikes" law which would have required a violent of
serious felony for a strike, we do not believe that
the law now needs to be amended. We feel that five
years of the "Three Strikes" law has shown that the
current law, as passed by the voters, is working. In
addition, we believe that two recent court decisions,
People v. Romero (1996) and People v. Alvarez (1997)
have provided sufficient safety valves for the "Three
Strikes" law. These decisions allowed judges to throw
out previous strikes or reduce a third strike from a
wobbler to a misdemeanor. CDAA strongly believes that
these court decisions, coupled with a prosecutor's
right to not pursue a third strike, remove much of the
argued necessity of a measure such as your SB 79.
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