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Voters express mixed views on matters of life and death, Prop 34 and 36

By Riva Gold | 7 Nov 2012

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Hear more about this story and how it developed on Election Day on the Peninsula Report podcast.

Californians put their convictions to the test yesterday in a vote on two statewide propositions relating to criminal justice. One would have eliminated life in prison as a punishment for relatively minor crimes, while the other imposes life in prison in place of the death penalty.

Proposition 36, the Three Strikes Reform Act, passed with 68.6 percent of popular support. It revises California’s sentencing system for convicted felons so that a life sentence is imposed only when the offender’s third felony is classified as serious or violent.

However, Proposition 34, the Death Penalty Initiative, did not pass. It earned just 47.2 percent of voter support. It would have repealed the death penalty and replaced it with life imprisonment without the possibility of parole. It would have applied to both future convicts and people currently on death row, and would have required that $100 million be transferred from the state General Fund to the SAFE California Fund over three years for local law enforcement agencies to investigate cases of rape and homicide. Anyone found guilty of murder would have been required to fund victim retribution by working in prison.

Leading up to the election, Proposition 36 sparked a heated debate between law enforcement agencies, criminal justice groups, attorneys, and victims’ rights representatives. Proponents of Three Strikes argued that people were being sentenced to life in prison for trivial crimes, while opponents feared that amending Three Strikes could threaten public safety.

Voters line up on Stanford campus. (photo: Danielle Radin/Peninsula Press).

“Thousands of people have been sentenced to prison who aren’t dangerous,” said Michael Romano, a Stanford Law School lecturer who co-authored Proposition 36 with Los Angeles District Attorney Steve Cooley and the NAACP Legal Defense Fund.

“There are people serving life sentences whose third crime involved stealing socks or possessing less than a tenth of a gram of drugs,” he said. Proposition 36 would require these offenders to serve twice the usual term for their most recent offence instead of 25-years-to-life.

The initiative also allows for re-sentencing to potentially reduce prison time for offenders currently serving life sentences for third felonies that are neither serious nor violent, such as grand theft without a firearm or possession of controlled substances.

Resentencing is permitted only for convicts who judges deem safe. It does not apply to people whose third convictions include serious crimes like firearm possession or whose previous crimes included rape, murder, or child molestation.

Romano is hopeful the ballot measure will keep punishment more consistent across the state. “Right now, we have unfettered discretion in sentencing. Some charge drug possession as a misdemeanor, and others will assign a life sentence.”

His colleague David Mills, a fellow Stanford Law lecturer and Managing Partner at Harbourton Enterprises, donated $953,000 to the Proposition 36 campaign.

This is not the first time Three Strikes and you’re out has been tested at the ballot box since it was signed into law in March of 1994. That same year, voters overwhelmingly approved Proposition 184, which strengthened the Three Strikes law passed by the legislature. Six years later, voters approved an amendment to the statute that altered sentencing for offenders convicted of drug possession.

Palo Alto Court

The Superior Court in Santa Clara County may soon change its policies for sentencing repeat offenders. (photo: Max Walker-Silverman/Peninsula Press).

Opponents of the proposition worry about its impact on public safety. “Just because someone commits a felony that is classified under California statutory law as non-serious or non-violent does not mean they are not violent in real life,” said John Lovell, who represents the California Police Chiefs Association. Lovell noted that the crime of solicitation to commit murder, for instance, was not classified as a serious or violent crime.

“The third strike is the lifetime achievement award, not the reason you get the sentence,” said Michael Rushford of the Criminal Justice Legal Foundation, a non-profit public interest law organization which seeks to ensure that criminal punishment is swift and constitutional. “It’s the other things you have done in your criminal past, and things the judge may know from the probation department and arrest records, which determine the sentence.”

Rushford said the proposed change was particularly dangerous in light of California’s adoption of prison realignment in 2011 that moved low-level offenders from state prisons to county facilities. “It’s like throwing the last gallon of gasoline on the fire,” he said.

In accordance with the new initiative, local government probation officers will monitor released prisoners. As of 2012, roughly 9,000 inmates in California prisons were third strikers.

In Lovell’s estimation, roughly 3,000 people in California prisons will be eligible to petition for early release.

“If it passes, this is going to create a bunch more victims,” said Nina Salarno Ashford of Crime Victims United. “With retroactive resentencing, you are releasing people who have had no rehabilitation.”

The California State Sheriff’s Association, the California District Attorneys Association, Peace Officers Research Association of California and the Los Angeles Police Protective League all opposed the proposition.

Mike Reynolds, an opposition campaign leader, added that the proposition will “destroy the deterrent value of this law.” Repeat offenders murdered Reynolds’s daughter in Fresno back in 1992. “Do you believe in prevention?” he asked.

Jeffrey Rosen, District Attorney of Santa Clara County, says that while the change will make certain people eligible for resentencing, it will not automatically release anyone. In Santa Clara, he estimated that roughly 118 out of the 550 prisoners sentenced under Three Strikes since its introduction in 1994 will be up for re-consideration.

In those cases, a re-evaluation will occur with both the prosecution and defense represented. A judge will determine sentencing or re-sentencing after evaluating things like the person’s prior criminal history, likeliness to re-offend, and his behavior in prison.

“Only people who are not deemed threats to the public would be released,” he said.

Standing in contrast with a majority of state-police organizations, San Francisco Police Commissioner Angela Chan also supported the proposition, calling it “a start to thinking about a different approach to how we address criminal justice.” Chan says the current policy has not done enough to reduce the recidivism rate.

Proposition 36 also received endorsements from Los Angeles Police Chief Charlie Beck and Los Angeles District Attorney Steve Cooley.

The state legislative analyst projected the proposition would bring correctional savings of approximately $70 million annually over the next couple of decades.

Also on the ballot was Proposition 34—a measure that would have eliminated the death penalty in California. The proposition would have repealed the possibility of death by lethal injection for persons convicted of murder, instead changing the sentence to life in prison without the possibility of parole. The measure would have also applied retroactively to the 726 people in California on death row.

Retired Superior Court judge LaDoris Cordell defends Proposition 34 at Stanford University on October 31. (photo: Rachel Estabrook/Peninsula Press)

Opponents of the proposition expressed concerns about associated safety risks. “If Prop 34 were to pass, we would have 726 of the worst murderers in the country under our care,” Rushford said. “Life-sentenced murderers have no incentive not to kill a guard, cellmate, or people on the outside.”

Proponents, meanwhile, stressed that the measure was necessary to keep the state budget in check. “California has spent over $4 billion on the weakest, least effective death penalty system in the nation,” retired Judge LaDoris Cordell told a panel at Stanford University on October 31.

The state Legislative Analysts’ Office estimated that the abolition of the death penalty would have saved California up to $130 million each year by eliminating the mandatory, extensive appeals process for those sentenced to death.

The exact savings projections have been subject to constant dispute, as has the notion that the law should be changed based on fiscal concerns.

“This decision should not be made based on finances,” said San Mateo District Attorney Stephen Wagstaffe, who opposed the proposition.

California is one of 33 states that permits the death penalty and currently leads the nation in death row inmates. Since 1976, 13 executions have been carried out — while 88 death row inmates awaiting execution have died of natural causes.

“The system in California is very flawed, and it’s not working. It’s broken,” said Terry McCaffrey, an anti-death penalty activist who played a role in the elimination of the death penalty in New Mexico.

Terry McCaffrey gives an interview on behalf of the “Yes on 34″ campaign.
(photo: Danielle Radin/Peninsula Press)

“We are all a jury right now deciding whether people will be killed,” Stanford Law professor Larry Marshall told the panel ahead of the election. Marshall added that with the death penalty, the execution of innocent people was “inevitable,” and the system was infected by sentencing biases associated with race, poverty, and class.

Since 2005, 13 bills have been introduced in the legislature to modify the death penalty—all of which have either died in committee or failed to pass, like this one.

Prominent opponents of the initiative include former governor Pete Wilson, Sacramento District Attorney Jan Scully and president of the California District Attorneys Association, Carl V. Adams.

Supporters of Prop 34 include the District Attorney of Los Angeles County, Gil Garcetti, The Attorney General of California, and former Los Angeles District Attorney John Van de Kamp.

As of October 27, supporters donated $6.8 million to promote the proposition, while the opposition raised only $359,900.

Facing two cost-saving crime measures, Californians chose to alleviate prison overcrowding by supporting Three Strikes, but were not swayed by budgets when it came to the death penalty.

Peninsula Press staff writers Danielle Radin and Max Walker-Silverman contributed to this report.


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