Proposition 36

Three Strikes Law. Repeat Felony Offenders. Penalties. Initiative Statue.

Long-time readers of this list (and its email predecessor) may recall that we urged a “no” vote on Proposition 184, the original 3-Strikes law that ultimately did pass in 1994. Without getting mired in the highly convoluted details, the existing 3-Strike law(s) provide that the sentencing for all felonies committed in California are “enhanced” anytime the convict has previously been convicted of at least 1 serious or violent felony.

The first enhancement doubles the sentence normally imposed for the felony, the second level enhancement (i.e. if the person convicted of any new felony has previously been convicted of at least two serious or violent felonies) replaces the sentence of whichever actual felony has been committed with a sentence of life in prison with a possibility of parole no earlier than 25 years into the incarceration.  In 1994, much of our analysis focused on the extremely high costs that would likely result from the law and some of the absurd results that flow from punishing non-serious and non-violent felonies with a prison sentence of 25 years to life if those felonies are preceded by two serious or violent felonies (a 3rd Strike).  This narrowly tailored proposition seeks to address some of those concerns.

Proposition 36 revises the existing three strikes law (which is really a mish-mash of multiple laws and judicial decisions since parts of the original law were found to be unconstitutional – something else we predicted).  Under this proposition, the “3rd Strike” penalty of 25 years to life would only be triggered when the third felony conviction is also serious or violent.   If a felon who has two serious or violent felonies on his or her record commits a non-serious and non-violent felony, that felon would face twice the penalty otherwise authorized by statute (the same scheme as is currently used for “2nd Strikes”).

The proposition also authorizes re-sentencing certain current 3-Strike offenders who are (1) serving life sentences (2) whose third strike conviction was not serious or violent and (3) whom judges determine would not pose an unreasonable risk to public safety if their sentence were reduced.  However, offenders who have ever committed rape, murder, or child molestation would be ineligible for re-sentencing.  Similarly, offenders whose non-violent 3rd-Strike was for non-violent sex crimes or certain enumerated drug offenses or involved firearm possession would also be ineligible for a reduced sentence.

Dollars and Sense
We think this tweak to the 3-Strikes law is sensible.  First, we think imprisoning someone for life when he or she commits any felony – even stealing a slice of pizza to eat (yes, it’s a real case) – simply because he or she has at some prior point in their life committed two “Strike Priors” is fundamentally unjust.   That said, this proposition is not aimed at your “justice bone” as much as it is at your pocketbook. PolitoMuse readers know that presently 10 cents out of every dollar spent by the state of California goes to fund our burgeoning prison system (a number that has risen 1,500% in terms of real costs and a four-fold increase as a percentage share of expenditures over the last 30 years).

According to the Legislative Analyst’s estimates, Proposition 36 will provide a net savings of about $70 million each year, gradually increasing to around $100 million per year.  The savings come because it becomes increasingly expensive to warehouse elderly prisoner – this proposition attempts to release some of the decidedly not dangerous criminals who have been caught up in the 3-Strikes scheme and to ensure that future bicycle thieves, tax cheats, perjurers, and other non-violent felons do not forever become the responsibility of the California prison system.  We think that is a sensible plan even if we disagree with some of the “carve-outs” that have been placed in this proposition to appease the state’s boisterous victims’ and law enforcement lobbies.

If It Is Broke – Fix It
Numerous law enforcement officials, such as Los Angeles’ Police chief Charley Beck, Los Angeles District Attorney Steve Cooley, San Francisco District Attorney George Gascon, Santa Clara District Attorney Jeff Rosen and countless other current and former law enforcement officials have all broken with their respective law enforcement lobbies and have publically endorsed Proposition 36 (see the listing of endorsements here).  We think they have this one right and urge you to do the same.


  1. California Propositions 35 and 36 – PolitoMuse Urges Opposite Votes On These 2 Criminal Statutes « PolitoMuse
  2. GO VOTE — PolitoMuse Offers Complete Analysis on All 11 California Propositions And Selected Local Measures « PolitoMuse

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