Ballot measure would relax California 3 Strikes law, which some say is draconian

This week, California Attorney General Kamala Harris is expected to issue the title and summary for the Three Strikes Reform Act of 2012. The initiative would require that a criminal’s third strike be serious or violent for him or her to receive a sentence of 25 years to life in prison, bringing California in line with other states. Backers will need to collect more than half a million signatures by April to qualify the measure for the November ballot.

For years, activists have contended Three Strikes in the Golden State casts too wide a net — that it scoops up people convicted of minor crimes and tosses them into prison for life.

Amberly McDowell worries about that all the time. The owner of Rush Hour Transport in Montebello employs dozens of ex-cons on 13 moving trucks, hiring unemployable men and helping them stay clean. His crews are the kind of guys he ran with as a kid.

“We all liked to do bad things together," McDowell said. "We all liked to push each other to do bad things."

McDowell grew up in L.A.’s Harbor Gateway neighborhood. He was a member of the notorious 204th Street Gang, and a methamphetamine addict. Dressed in a pressed shirt and tie for work, McDowell described how he loved stealing car stereos back then.

“I was one of those people that you can give up on,” he said. “I would steal. I would get into fights. I would do anything that you can imagine. And I had no plans in the near future of quitting that.”

McDowell earned 16 trips to jail, two years in state prison and two strikes under California’s Three Strikes law. Under threat of a third strike, he entered rehab and cleaned up.

By his own description, the 30-year-old entrepreneur is drug free, a law-abiding homeowner with a wife and twin daughters. But McDowell lives with the possibility of a 25-years-to-life sentence. Any felony conviction would send him away, including petty theft conviction.

He offers a "for instance." “Let’s just say I walked out of here and your radio right here was missing. I’m the last guy that was here. And you think I did that. You tell the police that.”

McDowell knows the criminal justice system wouldn’t look kindly on a two-striker with a string of burglaries in his past. “A jury will convict me on that,” he said. “And that’s it. I will never ever see my kids again.”

A jury might not want that. But juries decide only a defendant's guilt or innocence, and would not be made aware that a conviction would send McDowell away for life.

Mike Reynolds, who is known as the father of Three Strikes, said that’s just fine. “The Three Strikes law works well as it is."

Reynolds shudders at the thought of relaxing the law he helped to write. His daughter’s murder almost 20 years ago inspired his activism, and he says the law’s done more than lock up career criminals for life.

“Three strikes has played a huge role in not only detaining repeat offenders but also deterring them,” he said. “That is probably the most valuable tool.”

Deterring people like McDowell, perhaps.

But Michael Romano of Stanford Law School’s Three Strikes Project asks, at what cost?

“What was an unintended consequence of the original Three Strikes law was that it captured a lot of non-serious crimes like petty theft,” Romano said.

Romano helped to draft the initiative for next November's ballot for its official sponsor, the NAACP Legal Defense and Educational Fund. He said about 3,000 of the 8,000 three strikers behind bars today committed non-serious crimes as their third strike and would be eligible for shorter sentences under the proposed measure. Only those who’ve never been convicted of a very serious crime like murder or rape would qualify, and then a judge would have to review the petition.

“The judge can only reduce the sentence if he or she finds by a preponderance of evidence that the inmate is no longer a risk to public safety,” Romano said.

“The vast majority of law enforcement officials will oppose this measure,” Greg Totten, president of the California District Attorney’s Association, said.

The veteran prosecutor from Ventura County concedes that when voters approved Three Strikes in 1994, his colleagues used it a lot.

“I think there were certainly a few cases that probably were treated more harshly than they should have been,” he said. “Those circumstances have largely changed.”

Totten said most district attorneys now seek 25-years-to-life sentences in non-violent, non-serious cases only when the convict has a long, usually violent criminal history. He acknowledged that the criteria can vary widely from county to county — and can depend on local politics.

Sue Reams is from Orange County. In 1997, a jury convicted her son for aiding and abetting the sale of $20 of crack cocaine. Jurors didn’t know it was his third strike, and they weren't present when the judge sentenced him to 25 years to life.

“Afterwards, I just left and went down to the beach and sat there by myself for many hours,” she said. “It’s still painful all these years later.”

Her son never committed a violent felony. He was a crack cocaine addict who broke into neighbors' homes for money. In fact, he turned himself into police at his mother’s urging.

After her son’s conviction, Reams joined an organization called Families To Amend Three Strikes, or FACTS.

“Punishment needs to fit,” she said. “He didn’t kill anybody. How do you give somebody the same sentence that you give for murder?”

“I mean it should shock the conscience of people,” she added.

Five years ago, Three Strikes activists came very close to convincing California voters to change the law. In our next report, we’ll examine the group's prospects for success this time.