Bare 1
Carla Bare
W. Hussey
GOVT 180
Proposition 66
Proposition 66: Fixing the Flaw
On November 2, 2004, Californian voters were asked if California’s Three Strikes Law –
which levied serious sentences for those convicted of a third felony offense – should “be limited
to violent and/or serious felonies”.1 Citizens believed Proposition 66 was necessary due to the
increasing numbers of third strikers serving lengthy or life in prison for such minor crimes as
drug possession, or many other non-violent crimes.2 The effects of the Three Strikes law became
fully visible when, in 2006, a UC Berkeley study revealed that nearly 30% of California’s prison
population was comprised of individuals convicted of their second or third offense.3 Proposition
66 was ultimately rejected by a margin of 52.7% to 47.3%.4
History of Three Strikes Law
The context of the Three Strikes Law, however, makes it evident why many Californians
felt that sentencing reform was essential. In March of 1994, Governor Wilson signed AB 971
(Ch 12/94 Jones) into law. This bill, known as the “Three Strikes and You’re Out” criminal
sentencing measure, was an act “to ensure longer prison sentences and greater punishment for
1
"Proposition 66 Limitations on "Three Strikes" Law. Sex Crimes. Punishment State of California,"
League of Women Voters of California Education Fund, December 15, 2004,
http://www.smartvoter.org/2004/11/02/ca/state/prop/66/.
2
Selena Teji. “CA Policy: Three Strikes Reform: What Happened Last Time,” Center on Juvenile and
Criminal Justice, August 18, 2011,
http://www.cjcj.org/post/adult/corrections/three/strikes/reform/what/happened/last/time.
3
Marisa Lagos. “Rethinking California's 'three-strikes' law,” San Francisco Chronicle, July 3, 2011,
http://www.sfgate.com/crime/article/Rethinking-California-s-three-strikes-law-2365300.php.
4
"Proposition 66: Limitation on ‘Three-Strikes’ Law," University of California, Berkeley Institute of
Governmental Studies, 2004, http://igs.berkeley.edu/library/elections/proposition-66.
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those who commit a felony and have been previously convicted of serious and/or violent felony
offenses”.5 The Three Strikes Law, as written by Assemblyman Jones, states that felons:
convicted of a serious felony, as defined, and who has been previously convicted of a
serious felony in California, or of any offense committed in another jurisdiction which
includes all of the elements of a serious felony, shall receive, in addition to the sentence
imposed for the present felony, a 5-year enhancement for each prior felony conviction on
charges brought and tried separately.6
The bill also stated that:
•
if a defendant has one prior felony conviction, as defined, the determinate term, or
minimum term for an indeterminate term, shall be twice the term otherwise provided as
punishment for the current conviction,
•
if a defendant has 2 or more prior convictions, the term for the current felony conviction
shall be an indeterminate term of imprisonment in the state prison for life with a
minimum term for of the indeterminate term as the greatest of (a) 3 times the term
otherwise provided as punishment for each current felony conviction subsequent to the 2
or more prior felony convictions, (b) imprisonment in the state prison for 25 years, or (c)
the term determined by the court for the underlying conviction, including any applicable
enhancement or punishment provisions.7
In other words, if a criminal has been convicted of a serious violent felony and has had at least
two prior convictions (one of which must be a serious or violent felony), then regardless of the
severity of the final crime, the criminal must be sentenced 25 years to life in prison.
California’s Three Strikes Law was created in large part as a response to the
disappearance of 12-year-old Polly Klaas from Petaluma, California. Richard Davis, the man
who had kidnapped the young girl at knifepoint, was a career criminal with innumerable prior
convictions, including numerous parole violations, for which he was wanted at the time of the
murder. California’s Three Strikes Law was “intended to keep habitual violent offenders off the
5
“AB 971: Bill Text,” California State Legislature, March 1, 1993. http://www.leginfo.ca.gov/pub/9394/bill/asm/ab_0951-1000/ab_971_bill_940307_chaptered.
6
Ibid.
7
Ibid.
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streets”.8 Today, Davis remains on Death Row at San Quentin where he is doubly damned both
by the prisoners code that sees those who commit crimes against children as the lowest of the
low and by the fact that his fellow inmates blame Davis for California's "three strikes and you're
out law" which was passed in 1994 largely due to the support gained in response to Davis'
murder of Polly Klaas.”9
Does Three Strikes Need Reform?
California’s Three Strikes Law mandated that criminals who had committed a ‘serious
felony’ serve a life sentence for a third conviction, even if it was for a non-serious, non-violent
offense. Proponents of Three Strike Reform (Proposition 66) argued that there were cases in
which third strikers were serving sentences that were extremely disproportionate to the crime
they had committed. There are several notable examples of this unfairness. One such offender,
Jerry Williams, had two prior ‘strikes;’ he had been convicted of drug possession and receipt of
stolen property. His third strike, which under the Three Strikes Law would earn him a sentence
of 25 years to life, was stealing a slice of pepperoni pizza.10 California’s Three Strikes Law was,
at the time, the only law in the nation to apply extended sentences to any felony regardless of
severity or violence.11 With such unfair and disproportionate sentences, some argued that it was
unconstitutional, violating the 8th Amendment clause barring cruel and unusual punishment.
8
Marisa Lagos. “Rethinking California's 'three-strikes' law,” San Francisco Chronicle, July 3, 2011,
http://www.sfgate.com/crime/article/Rethinking-California-s-three-strikes-law-2365300.php.
9
Denise Noe. "The Killing of Polly Klaas," TruTv, 2006,
http://www.trutv.com/library/crime/serial_killers/predators/klaas/9.html.
10
"Pros & Cons - In Depth," League of Women Voters of California Education Fund, November 6, 2012,
http://cavotes.org/vote/election/2012/november/6/ballot-measure/three-strikes-law-repeat-felony-offenderspenalties/more.
11
Mark Martin. “Proposition 66: Efforts to Reform ‘Three Strikes’ Law Likely to Be on Ballot Again,” San
Francisco Chronicle, November 4, 2004, http://www.sfgate.com/politics/article/PROPOSITION-66-Efforts-toreform-three-2638541.php.
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Individual appeals cases have made their way to the United States Supreme Court, on arguments
that the sentences received constituted cruel and unusual punishment.12
California’s Three Strikes Law additionally increased the prison population significantly.
The California prison network has a total ideal capacity of approximately eighty thousand
inmates. Since the implementation of Three Strikes, the population has swelled to nearly 170%
of that number, not including prisoners housed in neighboring states or in other California
correctional facilities. Providing for these criminals costs the state’s taxpayers nearly $10 billion
per annum. Housing and health costs for non-violent three strike offenders cost California in
excess of $19.2 billion in the sixteen years following the law’s passage.
The aforementioned severe overcrowding led to a five-to-four United States Supreme
Court decision in 2011 that the conditions in California prisons were so bad as to constitute cruel
and unusual punishment. The federal court ordered California to reduce its prison population to
approximately 137% of capacity by 2013, and to make improvements to its grossly inadequate
prison health care system. California has petitioned the court, unsuccessfully, to increase the
number of inmates it is permitted to incarcerate, or, alternatively, for more time to meet the
court-ordered reduction in overcrowding. In spite of the significant additional expense, current
plans for building new prisons are simply not sufficient to provide the capacity necessary to
relieve the overcrowding as mandated by the court. Proposition 66 was designed to limit the
applicable instances of the Three Strikes Law and apply it to cases where the felonies committed
were violent and/or serious. Judge Cordell went on the record to say that, “the current Three
Strikes Law is unfair. The law forces judges to hand non-violent offenders life sentences that are
12
"Three Strikes Laws - Have Three-Strikes Laws Worked To Reduce Recidivism,” JRank Articles,
Accessed October 21, 2012, http://law.jrank.org/pages/10777/Three-Strikes-Laws.html.
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woefully disproportionate to the crimes they have committed. A vote for Proposition 66 is a vote
for fairness and justice.”13
Proposition 66
Proposition 66 was an initiative measure considered by the electorate on November 2,
2004. This proposition, if passed, would have reformed California’s Three Strikes Law in four
key ways. According to the Attorney General at the time, Bill Lockyer, Proposition 66 would
change California’s Three Strikes Law in four key ways. First, it would ensure that new crimes
must be violent or serious. Second, it would restrict which felonies would be considered violent
or serious. Third, it would mandate that strikes were to be tried separately. Finally, it would
resentence offenders affected by the passage of this law.14
Proponents Of and Arguments For Proposition 66
There were several proponents of, and arguments made for the passage of Proposition 66.
Numerous organizations and individuals voiced their support of the proposition through funding,
endorsements, and creating advertisements. Notable supporters included the American Civil
Liberties Union (ACLU), University of California Student Association, the California
Democratic and Green Parties, as well as numerous elected officials.15 Joe Klaas, Polly Klaas’
grandfather, also endorsed Proposition 66, stating that “we’re putting people away for life when
their third strike is a non-violent crime- like stealing aspirin. And we’re paying a million dollars
13
“Proposition 66 Supporters Launch Campaign to Fix ‘Three Strikes,’” American Civil Liberties Union of
Northern California, September 30, 2004,
https://www.aclunc.org/news/press_releases/proposition_66_supporters_launch_campaign_to_fix_three_strikes.sht
ml.
14
Ibid.
15
"Our Supporters," Yes on 66, 2004, http://www.edmweb.net/clients/66yes/supporters.htm.
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to incarcerate each one… Proposition 66 fixes the flaw in the law.”16 According to California’s
Secretary of State Campaign Finance website, proponents of Proposition 66 donated $231,650
through 200417.
This was not the only argument in favor of the passage of Proposition 66. According to
arguments from Red Hodges, President of Violence Research Foundation; Reverend Rick
Schlosser, the Executive Director at California Church Impact; and Ronald Hampton, the
Executive Director of the National Black Police Association, Proposition 66 would not release
violence and serious offenders as the measure’s opponents feared, would apply common sense to
sentencing, save taxpayers large amounts of money, and continue protecting children. Simply
put, “voting yes on proposition 66 will restore Three Strikes to the original intent of the voters,
save taxpayers billions of dollars, and provide even stronger protection for our children from
predatory child molesters.”18
Opponents Of and Arguments against Proposition 66
While the proposition had a number of backers, support for its passage was far from
unanimous. Notable opponents include then Governor Schwarzenegger, then Attorney General
Bill Lockyer, and Harriet Salarno, the Chair of Crime Victims United of California.19 Together
opponents gathered a staggering $5,127,711.59 to defeat Proposition 66.20
16
Joe Klaas, Joe Klaas Endorses Proposition 66, web video, 0:31, April 13, 2008,
http://www.youtube.com/watch?v=yJBmhJID0mk.
17
“POWERPAC.ORG FIX 3 STRIKES COMMITTEE (YES ON PROPOSITION 66),” California
Secretary of State: Cal-Access, 2004, http://cal-access.ss.ca.gov/Campaign/Committees/Detail.aspx?id=1270005
18
“Proposition 66 Arguments,” California Secretary of State, 2004,
http://vote2004.sos.ca.gov/propositions/prop66-arguments.htm.
19
20
Ibid.
“Californians United for Public Safety Independent Expenditure Committee,” California Secretary of
State: Cal-Access, 2004, http://calaccess.ss.ca.gov/Campaign/Committees/Detail.aspx?id=1264667&session=2003&view=general.
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Arguments used in opposition to Proposition 66 dealt with possible decreased safety for
the Californian population. According to the authors of the arguments against, Proposition 66
would release up to 26,000 convicted felons from prisons and move them to overpopulated jails.
Opponents also asserted that sentences would be dramatically reduced, regardless of how serious
or violent the criminal’s crime was.21 Opponents of Proposition 66 have been accused of using
scare tactics and false claims to prevent support for Proposition 66.
Predictions For and Results of the Voting
According to The Field Poll in 2004, Proposition 66 was predicted to pass as “voters have
indicated strong support for Prop 66. Large majorities of Democrats, Republicans and nonpartisans, as well as voters with different ideological leanings [said] they [would have voted]
‘yes.’” According to the data provided (See table at end), support for Proposition 66 slowly
decreased from May until early October, but still was predicted to pass. In early October, it was
found through three polls that 72% of Democrats, 58% of Republicans and 61% of all other
parties supported a yes vote.22
According to then Secretary of State Kevin Shelley, Proposition 66 was defeated 52.7%
to 47.3%, with 5.9% of the California population not responding. When looking at the party
demographics of California in the 2004 Presidential Election, most, if not all of the counties
voting for the Democratic Presidential candidate, Senator John Kerry, voted in favor of
Proposition 66. Counties who voted for the Republican Presidential candidate, incumbent
George W. Bush, voted against Proposition 66. Unfortunately, no exit polling data has been
“POWERPAC.ORG FIX 3 STRIKES COMMITTEE (YES ON PROPOSITION 66),” California Secretary
of State: Cal-Access, 2004, http://cal-access.ss.ca.gov/Campaign/Committees/Detail.aspx?id=1270005
21
22
See note 17 above.
Mark DiCamillo and Mervin Field. “Large Majority Continues to Favor Prop. 66,” The Field Poll,
October 13, 2004, http://field.com/fieldpollonline/subscribers/RLS2141.pdf.
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found to determine which demographics (besides county) voted in favor of or against Proposition
66.
What Changed?
Supporters and proponents of Proposition 66 were surprised to see that the initiative
failed. However, a fifteen second advertisement featuring then Governor Schwarzenegger may
have made a significant contribution to the downfall of the Proposition. The advertisement was
short, to the point, but was deemed a lie by the proponents. The advertisement was simply
Schwarzenegger saying, “Murderers, rapists, child molesters. 26,000 dangerous criminals will
be released from prison under Proposition 66,” as he walked in front of pictures of California’s
most dangerous criminals.23 However, this was simply a scare tactic manipulating voters’
emotions, rather than providing them with facts. According to the California Legislative
Analysts Office, this “measure require[d] the state to resentence offenders currently serving an
indeterminate life sentence under the Three Strikes Law if their third strike resulted from a
conviction for a nonviolent and non-serious felony offense, as defined by this proposition…[and
resentencing] will reduce prison sentences for some inmates and release from prison others.”24
Judge Cadei also noted in a hearing on Proposition 66 arguments and rebuttals that “[Proposition
66] doesn’t say that they (criminals) may be released subject to the Court’s supervision and resentencing considerations. What you’re (opponents of Proposition 66) making is a flat assertion
23
Arnold Schwarzenegger, Arnold Schwarzenegger lies about Proposition 66, web video, 0:30, Posted
April 7, 2008. http://www.youtube.com/watch?v=7F6PBldQxZc.
24
"Limitations on ‘Three Strikes’ Law. Sex Crimes. Punishment. Initiative Statute," California Legislative
Analyst's Office, July, 2004, http://www.lao.ca.gov/ballot/2004/66_11_2004.htm.
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of fact, which seems to be at best gross speculation and at worst probably mischaracterizing the
operation of the law.”25
What Did Failure Mean For California?
The Legislative Analysts Office predicted four fiscal effects that would occur if
Proposition 66 passed. These effects included a substantial reduction in state prison costs,
increased state parole supervision costs, increased costs for court-related activities and county
jails and other impacts on state and local governments. However, because Proposition 66 failed
these potentially beneficial effects were not realized.
Due to the failure of Proposition 66, California’s Three Strikes system continued to be
implemented in the same way it has been since its inception. Prison populations remained high
and an ever larger portion of the California budget was spent on correctional facilities. The
Legislative Analysts Office predicted that if Proposition 66 passed, it would have saved the state
of California “potentially several tens of millions of dollars in the first couple of years, growing
to as much as several hundred millions of dollars in ongoing savings when the full impact of the
measure is realized in about a decade”.26
Recent Reform
On November 6, 2012 California voters once again had the opportunity to reform the
Three Strikes Law in California. Proposition 36 (2012) and Proposition 66 (2004) were similar
propositions with the same basic intent to reform a flawed criminal sentencing system.
According to the League of Women Voters of California, “The most significant difference
between the proposed Proposition 36 and the previous attempt to amend the three strikes law is
25
“Judge Calls No on 66 Ballot Argument ‘Patently False,’” Yes on 66, September 3, 2004,
http://www.edmweb.net/clients/66yes/news_press090304.htm.
26
See note 23 above.
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that Proposition 36 retains a life sentence even for a non-violent, non-serious third strike offense
if any prior conviction was for a serious or violent felony such as murder, rape, child molestation
or a crime that involved the use of a firearm.”27 Secretary of State Debra Bowen reported that
Proposition 36 passed, 69% to 31%. Similar to the predicted results of Proposition 66, the
passing of Proposition 36 is expected to significantly reduce the operating costs of California
prisons, while leading to only a modest increase in non-violent crime, if any.
Implications and Conclusion
The overwhelming passage of Proposition 36 further reinforces what was already evident,
as mentioned above: the opponents of 2004’s Proposition 66 practiced voter manipulation by
using prominent spokespeople to present fallacies to Californians, scaring them into rejecting a
reform that would both save money and simultaneously keep them just as safe. These
unfortunate circumstances do reveal, however, that voters are increasingly reliant upon privatelyfunded advertising campaigns for information on ballot measures. This indicates a need for
methods of better educating voters, or ensuring the accuracy of information. One method may be
to establish a panel of fact-checkers to vet all political or ballot measure-related advertising.
In addition to exposing how easily voters are manipulated, the massive shift in voters’
positions serves as yet another indicator of California’s current financial status. Fear may well
have played just as large a role in this more recent instance as it did with respect to Proposition
66. However, the fear has since transferred to one of the looming bankruptcy of government, at
all levels. Perhaps this passage indicates that citizens now see their State’s financial situation so
critical that it is more important than their perceived safety.
27
"Pros & Cons - In Depth," League of Women Voters of California Education Fund, November 6, 2012,
http://cavotes.org/vote/election/2012/november/6/ballot-measure/three-strikes-law-repeat-felony-offenderspenalties/more.
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Proposition 66 was a very controversial measure during its time, and despite failing to
pass, it has already proven to be quite influential. It has allowed California voters to see flaws
inherent in the strict sentencing over broad crimes and paved the way for the successful
Proposition 36. Rejection of Proposition 66 did not help California’s corrections system, but
only time will tell if the approval of Proposition 36 will.
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Gray counties voted Republican in the 2004
Presidential Election.
Counties shown in black on the right voted to
reject Proposition 66.
Black counties voted Democrat in the 2004
Presidential Election.
Counties shown in gray on the right voted to
accept Proposition 66.
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general.
DiCamillo, Mark, and Mervin Field. “Large Majority Continues to Favor Prop. 66.” The Field
Poll. October 13, 2004. http://field.com/fieldpollonline/subscribers/RLS2141.pdf.
“Judge Calls No on 66 Ballot Argument ‘Patently False.’” Yes on 66. September 3, 2004.
http://www.edmweb.net/clients/66yes/news_press090304.htm.
Klaas, Joe. Joe Klaas Endorses Proposition 66. Web Video, 0:31. Posted April 13, 2008.
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Lagos, Marisa. “Rethinking California's 'three-strikes' law.” San Francisco Chronicle. July 3,
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Noe, Denise. "The Killing of Polly Klaas." TruTv. 2006.
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"Proposition 66 Limitations on ‘Three Strikes’ Law. Sex Crimes. Punishment State of
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Teji. Selena. “CA policy: Three Strikes Reform: What happened last time.” Center on Juvenile
and Criminal Justice. August 18, 2011.
http://www.cjcj.org/post/adult/corrections/three/strikes/reform/what/happened/last/time.
"Three Strikes Laws - Have Three-Strikes Laws Worked To Reduce Recidivism.” JRank
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