« Keep Up the Fight | Main | US Sentencing Guideline Amendments: sex, internet and analogs »
Rumblings...
Reform of the three-strikes law, as part of a general reform of California’s sentencing practice may be on the Governor’s agenda, even despite his opposition to Proposition 66. Law professors Mike Vitello and Clark Kelso of the McGeorge School of Law, both of whom are connected to the Schwartzenegger administration, are advocating reform. See “’Three Strikes’ battle continues after demise of Prop. 66,” Marjie Lundstrom, Sacramento Bee, November 11, 2004. In their paper titled "A Proposal for a Wholesale Reform of California's Sentencing Practicing and Policy," the professors make their case for reform.
The professors write that “the great weight of empirical studies discount the role of Three Strikes in reducing crime. Instead, it adds to the prison population but, in light of other sentencing provisions, does little to add to social protection.” The authors note the legend surrounding Three Strikes—that the law represents a watershed change from soft on crime to hard on crime, leading to a downward trend in crime rates.
Interesting are the authors’ suggestions that “California’s budget woes provide an opportunity to reexamine policies that have led to dramatic prison increase” and that “the election of Arnold Schwartzenegger creates a mechanism for change in state resentencing policy.” These observations are accurate. The state is several billion dollars in the hole and the prisons, ala California Correctional Peace Officers’ Association (“CCPOA”) account for a large percentage of the budget. The governor has not embraced CCPOA as his predecessor did. His opposition to Prop. 66 may actually be part of a reform strategy to save the state millions. The Gov. will say to CCPOA and the District Attorney’s association: “look, I helped you defeat Prop. 66, now you’ve got to support my reform proposals.” Gray Davis's refusal to parole anyone was a consequence of his fear of looking weak. The governor, on the other hand, doesn’t come with this political baggage. the "soft on crime" label won't stick to the Gov.
I found the authors’ history of California sentencing law, and its overview of the operation of the Three Strikes law, to be extremely informative. The authors characterize the sentencing law as “Bizantine,” and correctly note that the penal provisions are typically in response to a “crime of the day,” or some hyped-up news story. The authors are right-on when they note that the appellate decisions interpreting Three Strikes have upheld its harshness and done nothing to alleviate the laws inequities. All of us who routinely handle Three Strikes cases often feel that the appellate courts have abandoned our clients. That sense is validated by the authors’ survey of Three Strikes authority.
The geriatric inmates inflict the greatest financial cost, while at the same time pose the least danger to society. The authors cite authority estimating the cost of housing these needy, older inmates at $50,000 to $70,000 a year. Releasing these inmates would provide immediate financial relief, and is recommended by the authors. In reality, such policy would shift the cost of care from the State of California to the federal government as the inmates join the rolls of MediCare and MediCal beneficiaries.
It appears the state has begun to dust the cobwebs off its parole machine. One attorney I know has gone to special state funded training for representation of inmates in parole hearings. They offered him enough cases to pay a nice year’s salary. Perhaps this is a sign that the governor is going to try to shove a good portion of the elderly prison population through the parole process. While more parole is a good idea, and a step in the right direction, the administration's actions are a far cry from the needed sentencing reform.
I urge you to review professors Vitello and Kelso’s paper at 38 Loyola of Los Angeles Law Review 101 (2004). It can also be found on the Loyola Law School website, http://www.lls.edu.