Revisiting the Three Strikes law
Jeffrey Hayden
July 27, 2011

In the 1990s, a gruesome crime resulted in a backlash against the California justice system which spurred sentencing reform and the Three Strikes law. Today, it is not a concern over equity, but an expensive and overcrowded prison system that invites some to call for reforms.

On Oct. 1, 1993, young Polly Klaas had two of her friends at her home for a slumber party. In the course of the evening, she opened her bedroom door to fetch sleeping bags and encountered an intruder armed with a knife. He tied the girls up, and then kidnapped Klaas. A search ensued over the next two months — all in all, about 4,000 people helped search for her -— until a parolee, Richard Allen Davis, was arrested on a parole violation on Nov. 30 of that same year.

Davis' palm print matched a latent print found in Klaas' bedroom, and he was charged in her disappearance. Four days later, he led police to a shallow grave containing her remains.

In the wake of the arrest, disturbing details unfolded. Local police had encountered Davis weeks earlier, but were unaware that he was wanted for a parole violation, as the all points bulletin had not been broadcast to local agencies. Equally troubling was that Davis had an extensive criminal record that began at the age of 12 and spanned four decades, and yet he was out of custody and able to carry out the kidnapping/murder of Klaas.

The public reaction was swift. Citizens began circulating a petition to create sweeping anti-recidivist provisions within the Penal Code such that a second striker (anyone charged with any felony — no matter how benign — with a prior violent felony on his or her record) faced a mandatory prison sentence at double the range otherwise applicable to that crime. Those with two or more violent felony priors — so-called third strikers — face the greater of 25 years to life or life with parole after three times the maximum sentence that could otherwise be imposed. Moreover, anyone facing a violent felony could not be released from prison on parole until 85 percent of the sentence had been served.

The Legislature was equally outraged. Some eight months before Proposition 184 reached the November 1994 ballot, the Legislature passed its own anti-recidivist provision that Gov. Pete Wilson signed into law on March 8, 1994, which created a statute remarkably similar to the proposition later passed by the voters.

Since California passed the first such law in the nation, other states have followed. As of today, just over half of the states as well as the federal government have passed similar measures, but none more punitive than the Three Strikes law in California.

Opponents argued in vain the law was overreaching in that it was cruel and unusual because the sentences were draconian and excessive as applied to at least some of those prosecuted under these provisions. Critics point out the use of strike priors not only imprisons serious offenders, but hapless drug addicts who may have at one time stolen a purse or burgled a house when no one was home. Moreover, these convictions might be decades old and now used to imprison such low-level offenders.

It is not only adult convictions that can be used as priors. Certain sustained juvenile delinquency charges can also be used as strike priors. Critics contend the inclusion of juvenile court adjudications as strike priors under California's Three Strikes law saddles a juvenile justice system — purportedly still operating with primarily rehabilitative purposes — with the punitive intent that motivated Three Strikes.

With the prison population overfilling, and our prison system and the state struggling to find solvency while providing basic services, there is a move afoot to amend the Three Strikes law. It would not be the first.

In 2004, the 10-year anniversary of its enactment, voters narrowly rejected Proposition 66, the first major effort to reform the law. Proposition 66 would have required the third felony charge against a suspect to be an especially violent and/or serious crime to mandate a 25-years-to-life sentence. Opponents argued that its wording was so ambiguous that it threatened to shorten sentences for far more convicts than proponents estimated, and that it would have categorized some serious felonies, such as a nonresidential arson or assault with intent to rape, as something other than violent felonies. A media blitz in the days before the election shifted public opinion, which had likely voters strongly supporting the measure, to where a slim majority blocked passage amid well-publicized claims that some 26,000 violent felons would be summarily released from prison.

In response to the Three Strikes law, defense attorney Michael Romano and professor Larry Marshall — a leader in criminal justice advocacy and public policy — co-founded the Three Strikes clinic at Stanford Law School in 2006. According to the Stanford website, the project represents defendants charged under Three Strikes law with minor, nonviolent felonies at every stage of the criminal process: at trial, on appeal and in state and federal post-conviction habeas corpus proceedings.

As of Dec. 31, 2008, approximately one-fourth of the California prison population was made up of second- and third-strikers. Of those 41,114 prisoners, most were not serving sentences for what the Department of Corrections and Rehabilitation categorizes as crimes against persons.

Almost 60 percent of second-strikers and 55 percent of third-strikers were serving sentences for property crimes, drug offenses or other nonviolent offenses. The typical age of this population was in the late 30s to late 40s.

As of this May, California had more than 143,000 inmates in 33 adult prisons — a system designed to hold no more than 80,000. In addition to the spiraling budgetary concerns were huge social costs.

A 1990 lawsuit claimed an inadequate mental health system existed within a grossly overcrowded prison system. Throughout the litigation that followed, the prison system's mental and medical health systems fell into receivership. Inadequate medical facilities in the California prisons, for example, were blamed for an average of nearly a death a week that might have been prevented or delayed with better medical care.

The case worked its way through the federal court system, and recently ended up in the United States Supreme Court. On May 23, a divided Supreme Court ordered the number of inmates to be reduced to 110,000. (Brown v. Plata, 11 C.D.O.S. 6092) To emphasize the poor conditions existing within the prison system, the opinion's author, Justice Anthony Kennedy, took the unusual step of including photos of overcrowding, including cages where mentally ill inmates were held while they awaited beds.

Even before the Supreme Court decision, California was looking for ways to reduce the spiraling cost of incarceration. Gov. Jerry Brown had already signed legislation to transfer low-level offenders from the state prison system to already crowded county jails; the transfer of prisoners is expected to take place in October of this year.

Some administration of parole functions is also being shifted to the local level, with the possibility that violations of parole might also be shifted to local courts — courts that were just hit with $150 million in budget cuts a few weeks ago — from the parole authorities. While the state has already penned legislation to shift these prisoners to the counties, the mechanics on managing, adjudicating and funding the operations are still being worked out.

With many counties already engaging in early prisoner releases due to their own overcrowding problems, it is yet unclear how this will affect the incarceration of low-level offenders or whether it will require a new building boom at the local level.
If it appears this discussion provides more questions than answers, it is because the planning is just now taking place, and at quite a frenetic pace.

An hourlong discussion of the Three Strikes Law, including both proponents and opponents of reform and an opportunity to call and join in the discussion, will be broadcast on Aug. 3 at 7 p.m. on the Call A Lawyer program on KALW 91.7 or by webcast at

Jeffrey Hayden, a certified criminal law specialist practicing out of Redwood City, is the vice chair of the Criminal Law Advisory Commission of the State Bar of California.