Curtis Stamps
American Constitutional Law II
Dr. Smith
December 5, 2002
Three Strikes
In the case Lockyer, CA Attorney General v. Andrade, Leandro/ Ewing, Gary v. California, Andrade and Ewing’s civil rights are being violated under the laws of the state of California. The California Three Strikes law states, “Notwithstanding any other provision of law, if a defendant has been convicted of a felony and hi has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b), the court shall adhere to the following: if a defendant has one prior felony conviction that has been pled and proved, the determinate term of minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for each current conviction. (2) (A) If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of (I) three times the term otherwise provided as punishment for each current felony conviction subsequent to the tow or more prior felony convictions, or (ii) twenty-five years, or (iii) the term determined by the court.”
It is obvious that my clients committed the crimes of shoplifting and burglary, but is also obvious that the sentence does not fit the crime. Twenty-five years is cruel and unusual punishment for the crimes of shoplifting and burglary. In addition, my client’s Fifth Amendment right, protection against double jeopardy, is being violated.
Facts
On November 4, 1995, Leandro Andrade stole five videotapes out of K-Mart. The videotapes he stole were listed as “The Fox and the Hound,” “The Pebble and the Penguin,” “Batman Forever,” “ Casper,” and “Snow White”. All together, these tapes totaled $84.70. Two weeks later, Andrade was again arrested for attempting to steal videotapes. These tapes were listed as “Cinderella,” “Free Willy II,” “Little Women,” and “ The Santa Clause” which totaled $68.84. Before these two convictions, Andrade was an unemployed veteran and a heroine addict. Andrade's criminal record consisted of five felonies with two misdemeanors that spanned over fifteen years. Three of Andrade’s five felonies were federal crimes. Two were for transporting marijuana and one for escaping from prison. These offenses did not consider in Andrade’s Three Strike sentencing. The crimes that did factor in on his fifty-year sentence are two burglary convictions in 1983 and two petty theft convictions in 1982 and 1990. The petty theft convictions in 1982 and 1990 made the shoplifting convictions in 1995 thefts with a prior. Which means each shoplifting charge, if convicted, would receive a sentence of twenty-five years to life. Andrade was convicted and receive the maximum sentence of twenty-five years for each crime, but the decision was overturned by the Ninth Circuit Court of Appeals which stated that Andrade’s sentence violated the Eight Amendment protection from cruel and unusual punishment. Along with Andrade’s case, is the case of Gary Albert Ewing. Ewing is a forty-year-old man who has AIDS and suffers from drug addition and is also going blind. Ewing’s criminal record consists of four robbery convictions and one burglary conviction that all came from one case plus six other convictions. On March 12, 2000, Gary Albert Ewing was arrested for shoplifting. The items Ewing attempted to shoplift were three golf clubs priced at $399 each. Ewing’s final strike could have been prosecuted as either a misdemeanor or felony, which would have only carried a sentence of one year instead of a twenty-five year to life sentence.
Legal Arguments
The Supreme Court cases Lockyer, CA Attorney General v. Andrade, Leandro v. Ewing, Gary v. California concerns two violations of Andrade and Ewing’s civil liberties and also a number of extra- constitutional problems that make the Three Strikes law of California unlawful or unreasonable. The first violation of Ewing and Andrade’s constitutional rights is the violation of cruel and unusual punishment. Under California’s law, any crime that is considered a serious or violent felony can be prosecuted under the state’s Three Strikes law. According to the California’s Three Strikes law, violent felonies and serious crimes include the same crimes. These crimes range from very violent crimes such as murder or voluntary manslaughter to burglary of an inhabited dwelling house. In the case of Andrade and Ewing, the crimes of shoplifting are being considered a serious or violent felony. In the case Solem v. Helm (1983), Solem Warden is contesting his sentence life imprisonment without this possibility of parole. Warden Solem’s was convicted of uttering a “no account’ check for $100. The maximum fine for this crime would have been five years’ imprisonment and a $5000 fine but because of his six (nonviolent) prior felony convictions; Solem sentence was upgraded to life imprisonment without possibility of parole. The Court of Appeals reversed Solem’s sentences holding that the Eighth Amendment prohibits not only barbaric punishment, but also sentences that are disproportionate to the crime committed. The case, Solem v. Helm, also address the principle of proportionality. The Court of Appeals stated that the principle of proportionality is deeply rooted in common- law jurisprudence and that this principle was implicit to the constitution when the framer drafted the bill of Rights. The Court of Appeals also claim the Eighth Amendment should be guided by objective criteria. This point is especially important regarding the cases of Andrade and Ewing who received twenty- five years to fifty years for crimes that were all of the non-violent nature. In deciding this cases, the judges emphasize the principle of proportionality explain their stance that the Eighth Amendment doe not apply only to cases involving barbaric means of punishment but also any unjust punishment.
The problem arises with the definition of a serious or violent felony. The twenty- five to fifty year punishments handed down to my clients is comparable to crimes committed by rapists, murderers, and sometimes terrorists. In addition, in Ewing’s case, his two prior strikes stemmed from one case. The court system works to punish criminals for three purposes: to rehabilitate, to deter, and to take violent offenders off the street. The Three Strikes law is problematic because it states a person has to commit three violent of serious crimes before that criminal is to be taken off the streets. We should hope that if a person commits one violent or serious felony, he or she will be punished so severely that they will either not consider committing another crime or still be incarcerated until they have run out of time to commit another violent or serious crime.
In addition to the violations of the constitution the Three Strikes law commit, there are also a number of extra-constitutional problems with the Three Strikes law. The first are economic problems. It is estimated that 1,200 three-strike felons enter the prison system annually. At this rate, by the year 2006, 30,000 inmates will be serving twenty-five years to life under California’s Three Strikes law. Just under the Three Strikes law, California taxpayers will be dishing out an average of 750 million dollars a year. The money that is going to fund the California state prison system could be used to help prevent crime by providing better books and computers or paying teachers more. Nationally, it costs 23,000 dollars to house, clothe, and feed a young, healthy inmate. Also, 60 percent of federal inmates are drug offenders with half of them being first time, non-violent offenders. The cost to feed, clothe, house, and guard these individuals amount to 4.14 million dollars per day or 1.51 billion dollars annually. The Three Strikes law only adds to the strain of an already crowded prison system.
Another problem the Three Strikes law causes is the age problem or the “graying” of the prison system. The age problem involves two things: the mental, physical, and social health of the inmate and the economic stress of maintaining the health of older prisoners are putting on the prison system. The Three Strikes law is unjust first in its wording. The law was implemented to prevent heinous criminals from committing more heinous crimes, but is has been used to punish non-violent offenders or habitual criminal offenders. A first time offender (violent or non-violent) can receive a light sentence based on a multitude of circumstances. The second time, under the Three Strikes law, the criminal is convicted; his or her time is twice the amount of time he or she would have received without the Three Strikes law. By the time he/she is released, they are older. The average age for a person entering the prison system under the Three Strikes law is between the years of thirty-one and thirty-four. After receiving the mandatory sentence of twenty-five years, the inmate will be at least fifty before being considered for parole. The Three Strikes law ensures that the population of the prison system will be a made up of older men or women who probably are no threat to society. The second part of the graying of the prison systems involves the medicine and equipment it takes to maintain the health of older inmates. Older inmate, because of their age, are more susceptible to being injured or taken advantaged of by younger inmates. Some older inmates are intimidated in to giving up privileges, some are stolen from, and some are even raped. Since they are older and are less able to defend themselves, older inmates usually isolate themselves from the prison population, which can lead, to depression or other detrimental social problems. These social problems translate into health problems. Obviously, older inmates need more health care than younger inmates do. The health care needs of the older inmates are almost impossible to attain and if they are attainable, the prices are too costly. For example, at a Kentucky Reformatory, one fatally ill inmate wanted to end his life but the state cold not let him die. After his death, his total medical bill that was credited to a nearby hospital totaled 500,000 dollars.
Another extra- constitutional problem presented by California’s three strikes law is that the law takes away power of Judicial and the prosecution discretion. One of the main roles of a judge is to use his or her judgement in sentencing. If a mandatory sentence is set, then a judge loses his or her powers of discretion. By imposing mandatory minimum sentences, such as the Three Strikes law, disregards the defendant’s role in the offense, his culpability, likelihood of rehabilitation, or any other mitigating factors. Another problem with mandatory minimum sentences is that they are not effective. Imposed in 1952 the Bogus Act was repealed by 1970 because they were ineffective. The Three Strikes law is another example of a Mandatory minimum sentences bit it is not the ineffectiveness of the law that is problematic, but the unjustness of the law. Judges are not allowed to consider the circumstance of the offense, the history and character of the defendant, the need for the sentence to deter further criminal conduct, the need to protect the public, alternative sentencing options, or the need to avoid sentence disparities with similar defendants.
Opposing Arguments
The petitioner presents a couple of valid arguments. The first is that my clients are habitual crime offenders and that they have received more that enough chances to reform. Although my clients have committed the crime, it is obvious that the punishment of fifty years for shoplifting children’s videotapes and twenty- five years for shoplifting golf clubs is grossly disproportionate to the crime. The three strikes law was passed in 1994 because of the public outrage following the kidnapping and murder of twelve year old Polly Klass by a twice convicted kidnapper on parole. This law was enacted to prevent heinous criminals from receiving the chance to commit another crime of the serious and violent nature. The problem is not this part of the law, but the part that allows non- violent criminals to receive sentences that only a murderer and some rapists would receive. The California Court of Appeals has recognized the principle of proportionality in two recent cases by overturning Andrade’s conviction and the convictions of Brown and Bray, whom were sentenced to twenty- five years to life under California’s Three Strikes law. Another argument the petitioner will incorporate against my clients is that it is the state’s right to decide how they punish their criminals. This argument is problematic because when a United States citizens liberty are being violated, it is not only a problem of the states but also one of the federal government.
Closing Arguments:
In closing, Leandro Andrade and Gary Albert Ewing committed the crimes they were convicted of. They were caught stealing children’s videotapes and three golf clubs. Although my clients are habitual criminal offenders, neither has been convicted of a crime where an individual’s life was threatened or even convicted of a crime where they caused bodily harm to a person. So why punish shoplifters more heavily than we punish people who sexually abuse children. The principle of proportionality, deeply rooted in common- law juries prudence, has been viewed by our country every since the Constitution of the Unites States was drafted. Our Founding Fathers believed the principle of proportionality was implicit in the Eighth Amendment. During the outrage that followed the Three Strikes law, the idea was fresh and presented a solution to the public outcry, but the constitutionality of the law falls short of what our society deems fair and equal punishment. The California Court of Appeals reflects the change in attitude of the public when they overturned the two cases of Lockyer v. Andrade and Brown v. Mayle. Moreover, the heavy economic strain to the prison system caused by the Three Strikes law will eventually cripple California’s economy. The 750 million dollars that is used to fund the prison facilities could be used for other crime prevention methods such as better school systems, more recreational programs, or money to fight drugs. The latter method if applied to drug addiction, might have kept my clients Andrade and Ewing out of the prison system considering they are both drug addicts. Overall, the Three Strikes law is problematic in it wording. Serious and violent offenses include a wide variety of crimes ranging from those of the violent nature to those of the non- violent mature. The Three Strikes law could probably work if the terminology of the law is changed.
Bibliography
1. Colliver, Victoria. Media Awareness Project. June 26, 1998. www.m apinc.org.
2. Pfeffer, Stephanie. One strike against the elderly: growing old in prison. August 2002. www.medill.northwestern.edu.
3. Richey, Warren. Is ‘three strikes’ law cruel and unusual?. November 5, 2002. www.csmonitor.com
4. Wood, Daniel. ‘Three strikes’ law: is it too-cruelpunishment?. November8, 2001. www.csmonitor.com
5. U.S.Supreme Court. Solem v. Helm. http://caselaw.lp.finlaw.com
6. Cruel and Unusual Punishment. www.facts1.com
7. Cruel and Unusual Punishments. www.hr95.org
8. Vatz, Mara. Twenty Years in Solitude: Capital Punishment in Cruel and Unusual. www.tufts.edu
9. Winter, Greg. California Appellate Ruling Aids Foes of 3-Strike Law. The New York Times. December 10, 2001. www.amend3strikes.org
10. Wilkie, Dana. ‘3 Strikes no Deterrent to Drug Crimes, Study Shows. Copley News Service- Union/ Tribune. August 11, 2002. www.amend3strikes.org
11. The Three “strikes and You’re Out” Law: Serious Felonies within the Meaning of the California Three Strikes Law. www.silicon-valley.com
Wednesday, April 2, 2008
Article
Supreme Court Should Strike Out Three Strikes
By Earl Ofari Hutchinson, AlterNetPosted on November 11, 2002, Printed on April 2, 2008http://www.alternet.org/story/14516/
It's hard to say whether it's a good or bad thing that the U.S. Supreme Court began hearing arguments this week on the three strikes law. The court has been granite like in its opposition to anything that even faintly tilts toward civil liberties in prisoner rights cases. But if there's a prisoner rights issue that screams for redress it's three strikes. Twenty-six states now have three strikes laws on their books. The law mandates that repeat offenders be slapped with severely enhanced sentences. California has the toughest and most vigorously enforced three strikes law in the nation. A defendant convicted of a third offense no matter how petty can be slapped with a prison sentence of 25 years to life.
The draconian law blatantly violates the 8th Amendment prohibition against cruel and unusual punishment. In February, the U.S. 9th Circuit Court of Appeals overturned the convictions of one of three strike prisoner in California, and agreed to hear the case of the other. These two cases tell much about what's wrong with the law. The two prisoners, Gary Ewing and Leandro Andrade, were not convicted rapists, murderers, sexual pedophiles, bank robbers, arsonists, or drug kings. They were petty thieves. A judge tossed the book at Ewing for trying to steal three golf clubs from a golf shop, and at Andrade for pilfering videotapes from two K-Mart stores.
Despite its revulsion at the atrociousness of the law, the appeals court did not take logical step and void the law completely. This means that hundreds of three strike offenders continue to be herded into already bulging jail cells. The majority of them are Latinos and African-Americans. They are jailed mostly for non-violent crimes such as drug offenses or petty theft, and taxpayers are forced to spend extra millions to feed, house, and provide medical care for them while they wile away decades in prison. Andrade would limp or be wheeled out of prison at 87.
There's good reason to fear that even more prisoners will continue to pack prisons under the law. Most DAs in California, and the other states that have three strikes laws, have not given the slightest hint that their enthusiasm for nailing repeat offenders with three strike convictions have waned. Every attempt to dump or change the law in California and other states by initiative or legislative action has failed miserably. There are two reasons why. One is that much of the public is scared stiff of crime. They are not reassured by news reports, studies, and government statistics that show that crime has dropped. Crime is crime too much of the public. Few are willing to make any fine distinctions between someone who robs a bank or sells or possesses a small amount of cocaine. The perception is that the cocaine dealer or user today could be the bank robber or murderer tomorrow. Therefore, it's better to get them off the streets before that happens.
The second reason is that politicians obsessively check the opinion polls. They know that there is no detectable swing in public sentiment toward modifying, let alone eliminating, the three strikes law. Few politicians will dare risk being branded as soft on crime by pushing for reform or elimination of the law. They regard this as political suicide for them come election time.
Many other politicians reflexively defend the law by claiming that it is a powerful weapon to fight crime and that scrapping it would dump more violent criminals back on the streets. That was the rationale of California's Attorney General, an elected official, who practically demanded that the Supreme Court reverse the appeals court decision. Yet, there's no evidence that three strikes deters let alone reduces crime. In states such as New York that have no three strikes law, the crime rate has plunged just as sharply as California's rate. It dropped because of an aging population, an improved job and business climate, the expansion of community policing programs, and more effective youth and adult drug counseling and treatment programs.
Three strikes laws needlessly imprison thousands of persons who commit petty crimes, and criminalize a generation of young black and Latino males. For a fraction of the cost of preserving three strikes, most of these desperate souls could be helped by more drug treatment and job and skills training programs. Some states such as California are putting more resources into treatment and prevention programs. They are proving far more effective in helping people turn their lives around than simply warehousing them in prison cells.
Given the Supreme Court's abysmal track record on prisoner rights cases, there's scant hope that the court will dump the law. But if a miracle happens and it does, it would bring some sanity back into the sentencing laws.
Earl Ofari Hutchinson is an author and columnist. Visit his news and opinion website: The Hutchinson Report. He is the author of "The Crisis in Black and Black" (Middle Passage Press).
© 2008 Independent Media Institute. All rights reserved.View this story online at: http://www.alternet.org/story/14516/
By Earl Ofari Hutchinson, AlterNetPosted on November 11, 2002, Printed on April 2, 2008http://www.alternet.org/story/14516/
It's hard to say whether it's a good or bad thing that the U.S. Supreme Court began hearing arguments this week on the three strikes law. The court has been granite like in its opposition to anything that even faintly tilts toward civil liberties in prisoner rights cases. But if there's a prisoner rights issue that screams for redress it's three strikes. Twenty-six states now have three strikes laws on their books. The law mandates that repeat offenders be slapped with severely enhanced sentences. California has the toughest and most vigorously enforced three strikes law in the nation. A defendant convicted of a third offense no matter how petty can be slapped with a prison sentence of 25 years to life.
The draconian law blatantly violates the 8th Amendment prohibition against cruel and unusual punishment. In February, the U.S. 9th Circuit Court of Appeals overturned the convictions of one of three strike prisoner in California, and agreed to hear the case of the other. These two cases tell much about what's wrong with the law. The two prisoners, Gary Ewing and Leandro Andrade, were not convicted rapists, murderers, sexual pedophiles, bank robbers, arsonists, or drug kings. They were petty thieves. A judge tossed the book at Ewing for trying to steal three golf clubs from a golf shop, and at Andrade for pilfering videotapes from two K-Mart stores.
Despite its revulsion at the atrociousness of the law, the appeals court did not take logical step and void the law completely. This means that hundreds of three strike offenders continue to be herded into already bulging jail cells. The majority of them are Latinos and African-Americans. They are jailed mostly for non-violent crimes such as drug offenses or petty theft, and taxpayers are forced to spend extra millions to feed, house, and provide medical care for them while they wile away decades in prison. Andrade would limp or be wheeled out of prison at 87.
There's good reason to fear that even more prisoners will continue to pack prisons under the law. Most DAs in California, and the other states that have three strikes laws, have not given the slightest hint that their enthusiasm for nailing repeat offenders with three strike convictions have waned. Every attempt to dump or change the law in California and other states by initiative or legislative action has failed miserably. There are two reasons why. One is that much of the public is scared stiff of crime. They are not reassured by news reports, studies, and government statistics that show that crime has dropped. Crime is crime too much of the public. Few are willing to make any fine distinctions between someone who robs a bank or sells or possesses a small amount of cocaine. The perception is that the cocaine dealer or user today could be the bank robber or murderer tomorrow. Therefore, it's better to get them off the streets before that happens.
The second reason is that politicians obsessively check the opinion polls. They know that there is no detectable swing in public sentiment toward modifying, let alone eliminating, the three strikes law. Few politicians will dare risk being branded as soft on crime by pushing for reform or elimination of the law. They regard this as political suicide for them come election time.
Many other politicians reflexively defend the law by claiming that it is a powerful weapon to fight crime and that scrapping it would dump more violent criminals back on the streets. That was the rationale of California's Attorney General, an elected official, who practically demanded that the Supreme Court reverse the appeals court decision. Yet, there's no evidence that three strikes deters let alone reduces crime. In states such as New York that have no three strikes law, the crime rate has plunged just as sharply as California's rate. It dropped because of an aging population, an improved job and business climate, the expansion of community policing programs, and more effective youth and adult drug counseling and treatment programs.
Three strikes laws needlessly imprison thousands of persons who commit petty crimes, and criminalize a generation of young black and Latino males. For a fraction of the cost of preserving three strikes, most of these desperate souls could be helped by more drug treatment and job and skills training programs. Some states such as California are putting more resources into treatment and prevention programs. They are proving far more effective in helping people turn their lives around than simply warehousing them in prison cells.
Given the Supreme Court's abysmal track record on prisoner rights cases, there's scant hope that the court will dump the law. But if a miracle happens and it does, it would bring some sanity back into the sentencing laws.
Earl Ofari Hutchinson is an author and columnist. Visit his news and opinion website: The Hutchinson Report. He is the author of "The Crisis in Black and Black" (Middle Passage Press).
© 2008 Independent Media Institute. All rights reserved.View this story online at: http://www.alternet.org/story/14516/
Article
Strikes Press Conference
Senator Tom McClintock
Date: July 31, 2002
Publication Type: Press Release
In the fall of 2002 the United States Supreme Court will be hearing challenges to California’s “three strikes” law. The following remarks by Senator McClintock are in defense of the “three strikes” law.
The fundamental question at stake with this case is whether the people of California have the right to protect themselves from violent criminals.
The essence of the social contract – and the foundation of the American Republic – is the notion that every member of society is endowed with certain inalienable rights. In a state of nature, these rights are subject to violation by predators among us. Thus we establish government to protect those rights. In the words of the American Founders: “That to secure these rights governments are instituted.”
After many years of rising crime rates, California’s government finally took the necessary steps to secure these rights. It adopted the so-called “three strikes law.” Perhaps the problem is in the name. It is actually a two strikes law. After two serious or violent felonies – in which you have murdered, assaulted, robbed or burglarized your fellow citizens -- you are on notice that any further misconduct will remove you from a society that you have repeatedly demonstrated an inability to live in peaceably.
There are some on the Left who believe this is unreasonable. It is important to note that they have been wrong in every argument they have advanced.
They argued that Three Strikes would have no effect on crime. In fact, California has enjoyed a dramatic reduction in violent crime literally contingent upon the enactment of this legislation relative both to the pre-enactment period as well as the national rate.
They argued that Three Strikes would overwhelm California’s prisons with a flood of new prisoners. In fact, California’s prison population leveled off with the enactment of this legislation.
In short, their ideology has been trumped by reality. Californians are safer, their prisons are not overwhelmed, and there is a wealth of anecdotal evidence that after two strikes, many criminals leave the state for purely professional reasons.
Their sole argument now is that because the third strike need not be a violent crime, a petty criminal could receive life in prison for minor offenses. The only way to make this argument is to ignore the long string of violent crimes that have brought the criminal to this point; and to ignore the continuing discretion that prosecutors, judges and juries exercise in applying this law -- in other words, the only way to make this argument is to ignore reality.
But the reality is this: Californians have a fundamental right to defend themselves from violent predators; they have a fundamental right to draw a line after two serious and violent felonies. They have exercised that right, and the result is a society in which the inalienable right of all the people to their lives, their liberty and their pursuit of happiness is measurably safer and more secure.
I thank the Criminal Justice Legal Foundation for their work in defense of this law, I thank those who make their work possible, and I am honored to join them in this amicus curiae brief.
Senator Tom McClintock
Date: July 31, 2002
Publication Type: Press Release
In the fall of 2002 the United States Supreme Court will be hearing challenges to California’s “three strikes” law. The following remarks by Senator McClintock are in defense of the “three strikes” law.
The fundamental question at stake with this case is whether the people of California have the right to protect themselves from violent criminals.
The essence of the social contract – and the foundation of the American Republic – is the notion that every member of society is endowed with certain inalienable rights. In a state of nature, these rights are subject to violation by predators among us. Thus we establish government to protect those rights. In the words of the American Founders: “That to secure these rights governments are instituted.”
After many years of rising crime rates, California’s government finally took the necessary steps to secure these rights. It adopted the so-called “three strikes law.” Perhaps the problem is in the name. It is actually a two strikes law. After two serious or violent felonies – in which you have murdered, assaulted, robbed or burglarized your fellow citizens -- you are on notice that any further misconduct will remove you from a society that you have repeatedly demonstrated an inability to live in peaceably.
There are some on the Left who believe this is unreasonable. It is important to note that they have been wrong in every argument they have advanced.
They argued that Three Strikes would have no effect on crime. In fact, California has enjoyed a dramatic reduction in violent crime literally contingent upon the enactment of this legislation relative both to the pre-enactment period as well as the national rate.
They argued that Three Strikes would overwhelm California’s prisons with a flood of new prisoners. In fact, California’s prison population leveled off with the enactment of this legislation.
In short, their ideology has been trumped by reality. Californians are safer, their prisons are not overwhelmed, and there is a wealth of anecdotal evidence that after two strikes, many criminals leave the state for purely professional reasons.
Their sole argument now is that because the third strike need not be a violent crime, a petty criminal could receive life in prison for minor offenses. The only way to make this argument is to ignore the long string of violent crimes that have brought the criminal to this point; and to ignore the continuing discretion that prosecutors, judges and juries exercise in applying this law -- in other words, the only way to make this argument is to ignore reality.
But the reality is this: Californians have a fundamental right to defend themselves from violent predators; they have a fundamental right to draw a line after two serious and violent felonies. They have exercised that right, and the result is a society in which the inalienable right of all the people to their lives, their liberty and their pursuit of happiness is measurably safer and more secure.
I thank the Criminal Justice Legal Foundation for their work in defense of this law, I thank those who make their work possible, and I am honored to join them in this amicus curiae brief.
Articles
Supreme Court Debates Whether 'Three Strikes' Laws Are Too CruelBy Robert B. BlueyCNSNews.com Staff WriterNovember 06, 2002(CNSNews.com) - Lawyers for two California men who were sentenced under the state's "Three Strikes and You're Out" statute told the U.S. Supreme Court Tuesday the law imposes cruel punishments not appropriate for some crimes.The challenges by Gary Albert Ewing and Leandro Andrade represent the first time the nation's highest court has considered whether three-strikes laws violate the Eighth Amendment's ban on "cruel and unusual punishments."The 1994 California law, which supporters credit with a 41 percent drop in crime, imposes some of the strictest punishments on crimes compared to the 26 other states that have some form of three-strikes statutes on the books.At Tuesday's arguments, the justices appeared skeptical about overturning Ewing or Andrade's convictions. Even though they were convicted of relatively minor offenses that counted as the third strike, both had prior criminal convictions - making them the exact type of people the state was hoping to lock up."It seems to me like your client is a prime candidate for the law," Justice Antonin Scalia told Ewing's court-appointed attorney Quin Denvir. "The three-strikes law was designed to take people like him off the streets."In terms of the crimes committed, Ewing's theft of $1,197 worth of golf clubs in March 2000 was considered grand theft, a felony under state law. Andrade, who stole $153.54 in children's movies from Kmart on two occasions in November 1995, had his crime upgraded to a felony by a prosecutor.But it was not their most recent crimes, rather their prior convictions that prompted the long sentences. Ewing was sentenced to 25 years to life in prison for stealing the golf clubs -- his third strike after committing nine misdemeanors and four felonies, including an armed robbery. The stolen videos triggered a 50 years to life sentence for Andrade, who had two prior felony convictions.Denvir told the court Ewing would have spent a few years in prison for taking three $399 golf clubs from a pro shop. But under the three-strikes law he could spend the rest of his life in jail if he is denied parole after 25 years."In this case, his sentence has gone from a maximum of three years to life in prison based on his recidivism," Denvir said. "If he committed a violent crime, the state might have a basis for the sentence. The fact he committed worse crimes in the past does not matter."But that argument did not persuade Justice Anthony Kennedy, who said the three-strikes law had as much to do with a criminal's history as it did with the most recent offense."I'm not sure why the focus has to be only on this sentence," he said. "There's a long history of recidivism here and that's the whole purpose of the California law. Why isn't it reasonable to consider that?"How those past crimes fit into the context of a criminal's most recent offense is a central question before the court. Both Ewing and Andrade invoke the "cruel and unusual punishments" clause, claiming their nonviolent crimes did not warrant the long sentences.The circumstances in Andrade's case are similar to Ewing's argument. Two weeks after shoplifting four videotapes from a Kmart store, Andrade was caught taking another five movies from another store. The videos included "Snow White," "Batman Forever" and "Cinderella."California Deputy Attorney General Douglas P. Danzig said Andrade was not taking the movies as a gesture for a child. He said Andrade planned to sell the videos to support his heroin addiction."The sentence was punishment for his habitual criminal behavior," Danzig said. "The sentence is not grossly disproportionate and it does not violate the Eighth Amendment."The U.S. Court of Appeals for the Ninth Circuit did not agree with the state, however, siding with Andrade and prompting the state's appeal to the Supreme Court."The state has a right to say, 'Enough is enough,'" Danzig said, attempting to justify the three-strikes statute.When Justice Stephen Breyer pressed both Danzig and his colleague, Deputy Attorney General Donald E. DeNicola, who argued against Ewing, for specific numbers to show the punishments were not extraordinary, they came up with little evidence."You haven't shown me any records" that Ewing's sentence is not disproportionate to others convicted for similar crimes, Breyer told DeNicola. "Why shouldn't I say this is way too much?"Breyer, along with Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens, appeared to be the most sympathetic to Ewing and Andrade.Even though most of the justices appeared hesitant to throw out the three-strikes law, Andrade's attorney, Erwin Chemerinsky, told reporters afterward that he was hopeful they would decide in favor of his client.If California's three-strikes statute is struck down, it could impact similar laws in 26 other states. Chemerinsky said 344 criminals are serving sentences of 25 years to life for petty theft charges with prior offenses, similar to Andrade's, even though he was given two consecutive 25-year sentences. Another 650 people were sentenced for possessing a small amount of drugs, he said."No other state has a three-strikes law like California," Chemerinsky said. "In California, the third strike does not have to be a serious or violent felony. In every state with a three-strikes law, the third offense has to be serious or violent felony. That's what makes California's law cruel and unique."
Article
"Three Strikes" Law: Does It Really Work?
Greg Jones, Michael Connelly, Ph.D., and Kate WagnerState Commission on Criminal Sentencing PolicyAugust 2001
IntroductionOver the past seven years, considerable debate has centered on the well-publicized "three strikes and you're out" policy. The underlying notion behind this policy is sometimes referred to as the "Six Percent Solution" (Beres & Griffith, 1998). More specifically, the notion asserts that a small percentage of criminals, roughly 6%, commit approximately 70-80% of the total crimes (Wolfgang, 1972). Therefore, the purpose of the passing of "three strikes" laws was to provide a method for society to attempt to capture this highly active and dangerous group of career criminals, thus reducing crime levels substantially.
Despite the great support and legislation of "three strikes" laws that began in 1993, culminating with the first enactment by California in 1994, many critics feel that this law has not been all it was supposed to be. Much of the criticism and backlash attacks "three strikes" laws as being an ill-advised policy, a quick fix solution to the dynamic problem of crime, a policy with no or at best modest deterrent effect, and lastly, a financial burden to the correctional community and taxpayers. Furthermore, critics say, this law, which currently has been adopted by thirty-seven states, contains many inconsistencies across the states. Some of these inconsistencies include what crimes (violent or nonviolent) actually count as a strike, the possibility of parole or no parole, whether the person should be sentenced as a habitual offender, and whether the offender should receive a mandatory life sentence. In response, some states such as Washington suggest that "three strikes" laws are effective given proper implementation.
The questions of greatest concern, however, most observers agree, are if the "three strikes" laws have had a substantial impact on reducing crime, if it deters crime, and if it is a practical and sensible policy. To address these issues this report will provide a brief overview of the current research on "three strikes" laws in California, and other states. Then it will discuss some of the implications of "three strikes" policies and present recommendations from the literature on the topic.
Research on ImpactA study conducted by Stolzenberg and D'Alessio (1997) examined the impact of California's "three strikes" law on serious crime rates. They studied the 10 largest cities within the state (Anaheim, Fresno, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, Santa Ana) and found that the "three strikes" law did not decrease serious crime or petty theft rates. According to their analysis, preexisting trends such as the declining national crime level accounted for most of the reduction in levels of crime. Furthermore, the reasons they attributed to the minimal impact of the "three strikes" law were: 1) that the current sentencing practices already confine a substantial portion of high-risk offenders, 2) incapacitating offenders at the end of their criminal careers would more than likely not have any type of impact on the overall crime rate, and, 3) juveniles were not affected by the "three strikes" law.
Another article by Susan Turner (2000) found that, according to studies done by RAND, "three strikes" and "truth-in-sentencing" laws have had little impact on crime and arrest rates. In addition, UCR reports showed that states that did not have "three strikes" or "truth in sentencing" laws had lower index crime rates than those that had both types of "get-tough" laws (Turner, 2000). Increased spending on the correctional level was another influence in states that have these laws. Finally, she mentioned that policymakers should expect some more changes in the prison population and should reevaluate and reassess much of the piecemeal legislation that has been done up to this point.
A study by conducted by Beres and Griffith (1998) found that only a modest reduction in crime can be achieved by "three strikes" laws. Their analysis, which focused on the relationship between incapacitation and the crime rate, indicated that the reasoning often used surrounding the "Six Percent Solution" is essentially flawed. First, the original study done by Wolfgang, Figlio, and Sellin (1972) provided little evidence that incarcerating this 6% of career criminal actually solves the crime problem. Rather, it showed that a significant percentage of young males engage in substantial criminal activity at some point during their adolescence years (1998). Secondly, it is humanly impossible to accurately identify this elusive 6% of the male population. The National Academy of Sciences Panel on Criminal Careers and Career Criminals found that selective incapacitation was, in fact, impracticable and empirically flawed because no system of prediction could be developed that could identify high-rate serious offenders in advance with ethically defensible and economically affordable accuracy (Tonry, 1996).
Third, many of these high-rate, criminally active offenders are already in prison regardless of "three strikes" laws and will spend most of their criminal careers there anyway. Taking this into consideration, the only offenders that are left to snare consist mostly of low-rate, non-violent offenders. Fourth, one of the mathematical flaws that most people commit involves social harm and how they calculate the amount of crimes that will be prevented if the current inmates were not imprisoned. This is a common flaw because the average crime rate of current inmates is likely to be much higher than the average crime rate of the additional inmates who would be incarcerated (Beres, 1998). In other words, those offenders already in prison are many of the high rate offenders or part of the 6%, whereas the additional inmates who will be added will consist mostly of lower-rate offenders. Finally, they state that sentencing repeat offenders to longer terms is not necessarily a mistake, but that selective incapacitation (of the 6%) will not have a real impact on the major crime rate.
On the other hand, an article in Corrections Today by Joseph Sandoval (1996) provides some support for "three strikes" laws. He found that as of April, 1996, more than 1600 three-time felons with serious or violent criminal histories, and nearly 16,700 two-time felons with similar backgrounds, had been taken off the streets because of "three strikes" laws. Furthermore, a recent study by Sacramento Bee found that 84% of the "third strike" inmates had been convicted at least once for a violent offense and an average of five felonies overall.
A major criticism of "three strikes" laws is that there is no consistency of legislation and implementation across states that utilize this policy. The most disturbing component concerning "three strikes" laws is the actual "strike" itself. According to a national assessment of "three strikes" laws by Turner et al. (2000), many inconsistencies exist among states that have implemented the statute between those crimes that count as a strike and those that do not. They found that only two crimes out of a total of 247, murder and kidnapping, were consistent in every jurisdiction that enacted a "three strikes and you're out" policy. In addition, only these following seven crimes: murder, kidnapping, robbery, rape/sexual assault/battery, arson, assault/battery, and burglary, were included by at least 50% of the jurisdictions that enacted their policy (Turner, 1995). Some states like Georgia, for example, have a "two strikes" policy that permits offenders convicted of their second offense to be given a life sentence.
Another finding was that many of these jurisdictions included a wide range of nonviolent and drug-related crimes, which has already shown to have some significant implications on certain individuals. Surprisingly, they even found that some of the crimes included in a few states were basically outdated. For example, North Carolina lists train robbery and killing an adversary in a duel as strikes. Other states incorporated white-collar crimes as strikes such as contaminating a public water supply or distributing adulterated or misbranded foods or drugs. Finally, states such as Maryland, California, Connecticut, Wisconsin, and the federal government have gone so far as to include attempts of the crime outlined in the statutes as strikes.
The last line of argument against three strikes policy comes from the judges and prosecutors. It is widely stated that many judges and prosecutors often resist imposing unduly penalties that they believe are unjust, sometimes by deception (Tonry, 1998). This type of activity is often linked with the idea of "court community" where the local judges and prosecutors in a particular area have a common understanding between each other on handling such situations to provide a just and reasonable sentence.
Research on DeterrenceA study by Michael Vitiello (1997) gave partial attention to "three strikes" laws and deterrence in the state of California. In 1994, the major crime rated dropped 4.9% compared to only 2% nationwide. However, Vitiello cautioned against attributing this drop solely to "three strikes" legislation because the overall crime rate was already on the decline for the prior four years. He also argued that, if the "three strikes" law was really a deterrent, one should notice a significant decline in the juvenile crime rate. According to this study, data showed that the juvenile violent crime rate continued to increase after 1994, which made the deterrent effect basically nonexistent, at least in the juvenile spectrum.
Another article by John Schafer (1999) discussed the results of a survey about the "three strikes" law given to a sample of males from a youth center in Lancaster, CA. This survey suggests that when offenders are confronted with the severity of their punishment in specific, personal terms, the law has a deterrent effect, but, if the law is defined in general terms, the deterrent effect wanes (1999). Besides this effect, his research found, interestingly enough, that offenders with children were less likely to be deterred by the "three strikes" law than offenders without children. Lastly, Schafer mentioned that instead of deterring crime, this law may in fact lead to an increase in crime. For instance, if offenders commit a crime increasing their risk of being caught and know they are facing life in prison, they may be propelled to kill victims, witnesses, and police officers to avoid this life sentence.
A similar article entitled The Lethal Effect of Three Strikes Laws (2001) actually looked at this phenomenon. The researchers found using a state-level multiple-time-series design found that "three strikes" laws were associated with 10%-12% more homicides in the short run and 23%-29% more in the long run. Moreover, these effects occurred in almost all 24 states they examined with "three strikes" laws. Finally, they stated that these laws have had a minimal impact on reducing the levels of crime and through deterrence or incapacitation.
An article by Marc Mauer (1996) gave more insight into the "three strikes" debate. He mentioned how many proponents of "three strikes" laws fail to acknowledge that murder rates are declining in cities and states without "three strikes" legislation. For instance, in 1995 the murder rate in New York declined by 25%, while Tennessee's murder rate increased by 42% (Mauer, 1996). The peculiar twist to this statistic is that the state of Tennessee had the "three strikes" law. He also noted that other factors might have impacted California's crime drop since their "three strikes" legislation, such as the demographic changes of young males and a drop in the state unemployment rate. Some proponents are convinced that many offenders have decided to turn their life around simply because of "three strikes" laws. Mauer asked however why offenders would suddenly be "scared straight" by the "three strikes" laws when there exist even harsher policies, such as the death penalty, that has not shown a clear impact.
A recent book by Zimring, Kamins, and Hawkins (2001) examined the issue of deterrence and "three strikes" legislation in California. They conducted an examination of three cities: Los Angeles, San Diego, and San Francisco, and crime rates for 1993-1995. They found the maximum amount of crime that can be expected to be prevented by this policy is one in ten crimes, far below figures forecasters predicted.
Alfred Blumstein, chairman of National Academy of Sciences panels on deterrence and incapacitation, adds that there are some people who simply do not care about their consequences (Tonry, 1998). Those who cannot find their niche in the legitimate economy do not fear an extended stay in prison because the threat of not succeeding by some means is greater than a sentence to the penitentiary.
Implications of ResearchSince much of the proposed and implemented "three strikes" legislation varies across states, since nonviolent and drug-related incidences are being counted as strikes, and since the theory underlying the laws has been negatively appraised, many problems have incurred with "three strikes" policy. In addition, there are several specific issues including cost savings, racial discrimination, and judicial and prosecutorial discretion, which have permeated "three strikes" research and analysis.
According to critics such as Vitiello, "three strikes" laws have done two things. First, they have exarcerbated the racially discriminatory effects of sentencing policy. As a continuation of the "War on Drugs," propaganda many states which have enacted "three strikes" include certain drug-related crimes as a strike. Previous research shows that minorities, particular African-Americans, have been disproportionately incarcerated due to this approach. Under "three strikes" laws, African-Americans have been incarcerated at 13.3 times the rate of whites on drug offenses (Vitiello, 1997). Other evidence shows that in California, African-Americans have constituted 20% of felony defendants, but they have comprised 43% of offenders sentenced under the "three strikes" law (Mauer, 1996).
The second problem with "three strikes" laws is cost. A study done by RAND concluded that California's "three strikes" law will cost an estimated $5.5 billion over the next 25 years (Turner, 1995). In addition, "three strikes" laws create a larger aging prison population by incarcerating offenders who are essentially past their "active criminal careers;" nevertheless, they are in prison because of a third strike. These aged prisoners not only require more care and attention, but they are more expensive costing nearly three times the average prisoner.
Other problems with "three strikes" implementation include "clogging of the courts" and targeting nonviolent offenders. As a result of "three strikes" implementation many courts have become inundated with loads of cases, which lessens their ability to deal with offenders effectively and efficiently. Besides this burden, approximately 80% of cases involving second and third strike sentences have been for nonviolent offenses, including drug possession, petty theft, and burglary (Mauer, 1995).
Lastly, many critics have asserted that "three strikes" laws withdraw discretion for judges to commit offenders to diversion programs, conflicts with the U.S. Constitution (i.e., double jeopardy and ex post facto law), reduces the amount of good-time credits, and requires courts to sentence certain defendants consecutive rather than concurrently.
ConclusionsAccording to experts "three strikes" laws have not had a significant impact on reducing crime. Many studies have shown that reduced crime rates cannot be significantly attributed to the "three strikes" laws (Beres & Griffith, 1998; Stolzenberg and D'Alessio, 1997; Turner, S., 2000). To understand the entire picture, you must take into account other changes that have been occurring including an improved economy, changing drug markers, demographic changes, and strategic policing (King & Mauer, 2001).
In terms of deterrence, the evidence suggests that "three strikes" policy has had modest to little effects. The main objective of this policy, to incarcerate violent offenders, has been neglected for the most part. Most offenders receiving sentences under three strikes have been drug, property, or other non-violent types of offenders. In California, the DOC reported that 57.9% of third strike cases involved non-violent offenses as were 69% of second strike cases (King & Mauer, 2001).
So the question remains is "three strikes" a sensible policy? The majority of the research presents a negative view of the policy, however, some researchers point out that it is difficult to determine because of the downward crime trend occurring nationally and other economic changes taking place since the early 1990s. One consistent projection is that "three strikes" laws will contribute substantially to the aging of the prison system. This poses a serious threat to the correctional system in future years, being that elderly inmates, those 50 and over, require more expenditures for health care and other special needs than a younger prisoner. Current estimates are that it will cost $1.5 million to incarcerate an elderly prisoner for the minimum 25 years, which is the sentence given if convicted on third strike (King & Mauer, 2001).
Recommendations from the ResearchProponents of "three strikes" laws argue that they have been effective in reducing serious crime in states implementing the laws. Critics, on the other hand, point toward other factors that are responsible for the crime reduction and note similar crime drops in the same time periods in states without "three strikes" laws. These opponents argue for a range of alternative actions to address what they view as flaws in the "three strikes" approach. These recommendations include:
Find better cost-effective measures, conduct cost comparisons with other criminal policies.
More research that identifies more precisely, the specific mechanisms that have led to crime reductions in states that have enacted "three strikes" laws (i.e. mandatory minimums, restrictions on parole and early release).
Require that all strikes be committed within a specified period of street time, at least for nonviolent offenses, which will limit "three strikes" laws to high-rate offenders.
Policymakers should craft "three strikes" proposals that are more sensible and narrowly focused-including the most serious crimes-and that permit flexibility-professional discretion by prosecutor, judges, and correctional officials.
Policymakers should consider repealing or better justifying their use of "three strikes" laws. If not repealed, policymakers should include "sunset provisions," which would assure that laws passed in the passion of the moment will not endure for decades (Tonry, 1998).
A closer examination of those states, which have had crime reductions without the use of "three strikes" laws.
Selective release of older low-risk inmates reducing prison population and geriatric costs.
Selective release of inmates convicted of a third strike for nonviolent, drug-related crimes and other crimes such as petty theft, but taking into consideration their previous strikes.
Revise the drug-related strike that incapacitates mostly low-level offenders, which can reduce prison overcrowding with prisoners that do not present a grave social harm and racial disparity.
Explore other methods of limiting freedoms such as electronic monitoring or home detention.
Examine rehabilitation programs and implement those that have worked. In other words look for more ways to rehabilitate offenders than to incarcerate.
References
Beres, L., Griffith, T. (1998). Do three strikes laws make sense? Habitual offender statutes and criminal incapacitation. Georgetown Law Journal, 87 (1): 103-138.
King, R., & Mauer, M. (2001). Aging behind bars: "Three-strikes" seven years later. Washington, D.C.: The Sentencing Project.
LaCourse, Dave. (1994). Three strikes is working in Washington. Journal of Interpersonal Violence, 9:421-424.
Marvell, T., Moody, C. (2001). The lethal effects of three strikes law. Journal of Legal Studies, 30 (1): 89-106.
Mauer, M. (1996). Tree strikes policy is just a quick fix solution. Corrections Today, 58: 23.
Sandoval. J. (1996). Three Strikes is Good Criminal Justice Policy. Corrections Today, 58: 22.
Schafer, J. (1999). The deterrent effect of three strikes law. FBI Law Enforcement Bulletin, 68 (4): 6-10.
Stolzenberg, L., D'Alessio, S. (1997). "Three strikes and you're out": The impact of California's new mandatory sentencing law on serious crime rates. Crime & Delinquency, 43 (4): 457-469.
Tonry, M. (1996). Sentencing matters. Oxford University Press.
Turner, M., Sundt, J., Applegate, B., Cullen, F. (1996). Assessing public support for three strikes and you're out laws: Global versus specific attitudes. Crime & Delinquency, 42 (4): 517-534.
Turner, M., Sundt, J., Applegate, B., Cullen, F. (1995). "Three strikes and you're out" legislation: A national assessment. Federal Probation, 59: 16-35.
Turner, Susan. (2000). Impact of Truth in Sentencing and Three-Strikes Legislation on Crime. Crime and Justice Atlas 2000, NCJRS, p.10-11. Available online: URL: www.usdoj.gov/ncjrs.
Vitiello, M. (1997) Three strikes: Can we return to rationality? The Journal of Criminal Law and Criminology, 87: 395-481.
Wolfgang, M.E., Figlio, R.M., and Sellin, Thornstein (1972). Delinquency in a birth cohort. The University of Chicago Press.
Zimring, F., Hawkins, G., Kamin, S. (2001). Punishment and democracy: Three strikes and you're out in California. New York: Oxford University Press.
Greg Jones, Michael Connelly, Ph.D., and Kate WagnerState Commission on Criminal Sentencing PolicyAugust 2001
IntroductionOver the past seven years, considerable debate has centered on the well-publicized "three strikes and you're out" policy. The underlying notion behind this policy is sometimes referred to as the "Six Percent Solution" (Beres & Griffith, 1998). More specifically, the notion asserts that a small percentage of criminals, roughly 6%, commit approximately 70-80% of the total crimes (Wolfgang, 1972). Therefore, the purpose of the passing of "three strikes" laws was to provide a method for society to attempt to capture this highly active and dangerous group of career criminals, thus reducing crime levels substantially.
Despite the great support and legislation of "three strikes" laws that began in 1993, culminating with the first enactment by California in 1994, many critics feel that this law has not been all it was supposed to be. Much of the criticism and backlash attacks "three strikes" laws as being an ill-advised policy, a quick fix solution to the dynamic problem of crime, a policy with no or at best modest deterrent effect, and lastly, a financial burden to the correctional community and taxpayers. Furthermore, critics say, this law, which currently has been adopted by thirty-seven states, contains many inconsistencies across the states. Some of these inconsistencies include what crimes (violent or nonviolent) actually count as a strike, the possibility of parole or no parole, whether the person should be sentenced as a habitual offender, and whether the offender should receive a mandatory life sentence. In response, some states such as Washington suggest that "three strikes" laws are effective given proper implementation.
The questions of greatest concern, however, most observers agree, are if the "three strikes" laws have had a substantial impact on reducing crime, if it deters crime, and if it is a practical and sensible policy. To address these issues this report will provide a brief overview of the current research on "three strikes" laws in California, and other states. Then it will discuss some of the implications of "three strikes" policies and present recommendations from the literature on the topic.
Research on ImpactA study conducted by Stolzenberg and D'Alessio (1997) examined the impact of California's "three strikes" law on serious crime rates. They studied the 10 largest cities within the state (Anaheim, Fresno, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, Santa Ana) and found that the "three strikes" law did not decrease serious crime or petty theft rates. According to their analysis, preexisting trends such as the declining national crime level accounted for most of the reduction in levels of crime. Furthermore, the reasons they attributed to the minimal impact of the "three strikes" law were: 1) that the current sentencing practices already confine a substantial portion of high-risk offenders, 2) incapacitating offenders at the end of their criminal careers would more than likely not have any type of impact on the overall crime rate, and, 3) juveniles were not affected by the "three strikes" law.
Another article by Susan Turner (2000) found that, according to studies done by RAND, "three strikes" and "truth-in-sentencing" laws have had little impact on crime and arrest rates. In addition, UCR reports showed that states that did not have "three strikes" or "truth in sentencing" laws had lower index crime rates than those that had both types of "get-tough" laws (Turner, 2000). Increased spending on the correctional level was another influence in states that have these laws. Finally, she mentioned that policymakers should expect some more changes in the prison population and should reevaluate and reassess much of the piecemeal legislation that has been done up to this point.
A study by conducted by Beres and Griffith (1998) found that only a modest reduction in crime can be achieved by "three strikes" laws. Their analysis, which focused on the relationship between incapacitation and the crime rate, indicated that the reasoning often used surrounding the "Six Percent Solution" is essentially flawed. First, the original study done by Wolfgang, Figlio, and Sellin (1972) provided little evidence that incarcerating this 6% of career criminal actually solves the crime problem. Rather, it showed that a significant percentage of young males engage in substantial criminal activity at some point during their adolescence years (1998). Secondly, it is humanly impossible to accurately identify this elusive 6% of the male population. The National Academy of Sciences Panel on Criminal Careers and Career Criminals found that selective incapacitation was, in fact, impracticable and empirically flawed because no system of prediction could be developed that could identify high-rate serious offenders in advance with ethically defensible and economically affordable accuracy (Tonry, 1996).
Third, many of these high-rate, criminally active offenders are already in prison regardless of "three strikes" laws and will spend most of their criminal careers there anyway. Taking this into consideration, the only offenders that are left to snare consist mostly of low-rate, non-violent offenders. Fourth, one of the mathematical flaws that most people commit involves social harm and how they calculate the amount of crimes that will be prevented if the current inmates were not imprisoned. This is a common flaw because the average crime rate of current inmates is likely to be much higher than the average crime rate of the additional inmates who would be incarcerated (Beres, 1998). In other words, those offenders already in prison are many of the high rate offenders or part of the 6%, whereas the additional inmates who will be added will consist mostly of lower-rate offenders. Finally, they state that sentencing repeat offenders to longer terms is not necessarily a mistake, but that selective incapacitation (of the 6%) will not have a real impact on the major crime rate.
On the other hand, an article in Corrections Today by Joseph Sandoval (1996) provides some support for "three strikes" laws. He found that as of April, 1996, more than 1600 three-time felons with serious or violent criminal histories, and nearly 16,700 two-time felons with similar backgrounds, had been taken off the streets because of "three strikes" laws. Furthermore, a recent study by Sacramento Bee found that 84% of the "third strike" inmates had been convicted at least once for a violent offense and an average of five felonies overall.
A major criticism of "three strikes" laws is that there is no consistency of legislation and implementation across states that utilize this policy. The most disturbing component concerning "three strikes" laws is the actual "strike" itself. According to a national assessment of "three strikes" laws by Turner et al. (2000), many inconsistencies exist among states that have implemented the statute between those crimes that count as a strike and those that do not. They found that only two crimes out of a total of 247, murder and kidnapping, were consistent in every jurisdiction that enacted a "three strikes and you're out" policy. In addition, only these following seven crimes: murder, kidnapping, robbery, rape/sexual assault/battery, arson, assault/battery, and burglary, were included by at least 50% of the jurisdictions that enacted their policy (Turner, 1995). Some states like Georgia, for example, have a "two strikes" policy that permits offenders convicted of their second offense to be given a life sentence.
Another finding was that many of these jurisdictions included a wide range of nonviolent and drug-related crimes, which has already shown to have some significant implications on certain individuals. Surprisingly, they even found that some of the crimes included in a few states were basically outdated. For example, North Carolina lists train robbery and killing an adversary in a duel as strikes. Other states incorporated white-collar crimes as strikes such as contaminating a public water supply or distributing adulterated or misbranded foods or drugs. Finally, states such as Maryland, California, Connecticut, Wisconsin, and the federal government have gone so far as to include attempts of the crime outlined in the statutes as strikes.
The last line of argument against three strikes policy comes from the judges and prosecutors. It is widely stated that many judges and prosecutors often resist imposing unduly penalties that they believe are unjust, sometimes by deception (Tonry, 1998). This type of activity is often linked with the idea of "court community" where the local judges and prosecutors in a particular area have a common understanding between each other on handling such situations to provide a just and reasonable sentence.
Research on DeterrenceA study by Michael Vitiello (1997) gave partial attention to "three strikes" laws and deterrence in the state of California. In 1994, the major crime rated dropped 4.9% compared to only 2% nationwide. However, Vitiello cautioned against attributing this drop solely to "three strikes" legislation because the overall crime rate was already on the decline for the prior four years. He also argued that, if the "three strikes" law was really a deterrent, one should notice a significant decline in the juvenile crime rate. According to this study, data showed that the juvenile violent crime rate continued to increase after 1994, which made the deterrent effect basically nonexistent, at least in the juvenile spectrum.
Another article by John Schafer (1999) discussed the results of a survey about the "three strikes" law given to a sample of males from a youth center in Lancaster, CA. This survey suggests that when offenders are confronted with the severity of their punishment in specific, personal terms, the law has a deterrent effect, but, if the law is defined in general terms, the deterrent effect wanes (1999). Besides this effect, his research found, interestingly enough, that offenders with children were less likely to be deterred by the "three strikes" law than offenders without children. Lastly, Schafer mentioned that instead of deterring crime, this law may in fact lead to an increase in crime. For instance, if offenders commit a crime increasing their risk of being caught and know they are facing life in prison, they may be propelled to kill victims, witnesses, and police officers to avoid this life sentence.
A similar article entitled The Lethal Effect of Three Strikes Laws (2001) actually looked at this phenomenon. The researchers found using a state-level multiple-time-series design found that "three strikes" laws were associated with 10%-12% more homicides in the short run and 23%-29% more in the long run. Moreover, these effects occurred in almost all 24 states they examined with "three strikes" laws. Finally, they stated that these laws have had a minimal impact on reducing the levels of crime and through deterrence or incapacitation.
An article by Marc Mauer (1996) gave more insight into the "three strikes" debate. He mentioned how many proponents of "three strikes" laws fail to acknowledge that murder rates are declining in cities and states without "three strikes" legislation. For instance, in 1995 the murder rate in New York declined by 25%, while Tennessee's murder rate increased by 42% (Mauer, 1996). The peculiar twist to this statistic is that the state of Tennessee had the "three strikes" law. He also noted that other factors might have impacted California's crime drop since their "three strikes" legislation, such as the demographic changes of young males and a drop in the state unemployment rate. Some proponents are convinced that many offenders have decided to turn their life around simply because of "three strikes" laws. Mauer asked however why offenders would suddenly be "scared straight" by the "three strikes" laws when there exist even harsher policies, such as the death penalty, that has not shown a clear impact.
A recent book by Zimring, Kamins, and Hawkins (2001) examined the issue of deterrence and "three strikes" legislation in California. They conducted an examination of three cities: Los Angeles, San Diego, and San Francisco, and crime rates for 1993-1995. They found the maximum amount of crime that can be expected to be prevented by this policy is one in ten crimes, far below figures forecasters predicted.
Alfred Blumstein, chairman of National Academy of Sciences panels on deterrence and incapacitation, adds that there are some people who simply do not care about their consequences (Tonry, 1998). Those who cannot find their niche in the legitimate economy do not fear an extended stay in prison because the threat of not succeeding by some means is greater than a sentence to the penitentiary.
Implications of ResearchSince much of the proposed and implemented "three strikes" legislation varies across states, since nonviolent and drug-related incidences are being counted as strikes, and since the theory underlying the laws has been negatively appraised, many problems have incurred with "three strikes" policy. In addition, there are several specific issues including cost savings, racial discrimination, and judicial and prosecutorial discretion, which have permeated "three strikes" research and analysis.
According to critics such as Vitiello, "three strikes" laws have done two things. First, they have exarcerbated the racially discriminatory effects of sentencing policy. As a continuation of the "War on Drugs," propaganda many states which have enacted "three strikes" include certain drug-related crimes as a strike. Previous research shows that minorities, particular African-Americans, have been disproportionately incarcerated due to this approach. Under "three strikes" laws, African-Americans have been incarcerated at 13.3 times the rate of whites on drug offenses (Vitiello, 1997). Other evidence shows that in California, African-Americans have constituted 20% of felony defendants, but they have comprised 43% of offenders sentenced under the "three strikes" law (Mauer, 1996).
The second problem with "three strikes" laws is cost. A study done by RAND concluded that California's "three strikes" law will cost an estimated $5.5 billion over the next 25 years (Turner, 1995). In addition, "three strikes" laws create a larger aging prison population by incarcerating offenders who are essentially past their "active criminal careers;" nevertheless, they are in prison because of a third strike. These aged prisoners not only require more care and attention, but they are more expensive costing nearly three times the average prisoner.
Other problems with "three strikes" implementation include "clogging of the courts" and targeting nonviolent offenders. As a result of "three strikes" implementation many courts have become inundated with loads of cases, which lessens their ability to deal with offenders effectively and efficiently. Besides this burden, approximately 80% of cases involving second and third strike sentences have been for nonviolent offenses, including drug possession, petty theft, and burglary (Mauer, 1995).
Lastly, many critics have asserted that "three strikes" laws withdraw discretion for judges to commit offenders to diversion programs, conflicts with the U.S. Constitution (i.e., double jeopardy and ex post facto law), reduces the amount of good-time credits, and requires courts to sentence certain defendants consecutive rather than concurrently.
ConclusionsAccording to experts "three strikes" laws have not had a significant impact on reducing crime. Many studies have shown that reduced crime rates cannot be significantly attributed to the "three strikes" laws (Beres & Griffith, 1998; Stolzenberg and D'Alessio, 1997; Turner, S., 2000). To understand the entire picture, you must take into account other changes that have been occurring including an improved economy, changing drug markers, demographic changes, and strategic policing (King & Mauer, 2001).
In terms of deterrence, the evidence suggests that "three strikes" policy has had modest to little effects. The main objective of this policy, to incarcerate violent offenders, has been neglected for the most part. Most offenders receiving sentences under three strikes have been drug, property, or other non-violent types of offenders. In California, the DOC reported that 57.9% of third strike cases involved non-violent offenses as were 69% of second strike cases (King & Mauer, 2001).
So the question remains is "three strikes" a sensible policy? The majority of the research presents a negative view of the policy, however, some researchers point out that it is difficult to determine because of the downward crime trend occurring nationally and other economic changes taking place since the early 1990s. One consistent projection is that "three strikes" laws will contribute substantially to the aging of the prison system. This poses a serious threat to the correctional system in future years, being that elderly inmates, those 50 and over, require more expenditures for health care and other special needs than a younger prisoner. Current estimates are that it will cost $1.5 million to incarcerate an elderly prisoner for the minimum 25 years, which is the sentence given if convicted on third strike (King & Mauer, 2001).
Recommendations from the ResearchProponents of "three strikes" laws argue that they have been effective in reducing serious crime in states implementing the laws. Critics, on the other hand, point toward other factors that are responsible for the crime reduction and note similar crime drops in the same time periods in states without "three strikes" laws. These opponents argue for a range of alternative actions to address what they view as flaws in the "three strikes" approach. These recommendations include:
Find better cost-effective measures, conduct cost comparisons with other criminal policies.
More research that identifies more precisely, the specific mechanisms that have led to crime reductions in states that have enacted "three strikes" laws (i.e. mandatory minimums, restrictions on parole and early release).
Require that all strikes be committed within a specified period of street time, at least for nonviolent offenses, which will limit "three strikes" laws to high-rate offenders.
Policymakers should craft "three strikes" proposals that are more sensible and narrowly focused-including the most serious crimes-and that permit flexibility-professional discretion by prosecutor, judges, and correctional officials.
Policymakers should consider repealing or better justifying their use of "three strikes" laws. If not repealed, policymakers should include "sunset provisions," which would assure that laws passed in the passion of the moment will not endure for decades (Tonry, 1998).
A closer examination of those states, which have had crime reductions without the use of "three strikes" laws.
Selective release of older low-risk inmates reducing prison population and geriatric costs.
Selective release of inmates convicted of a third strike for nonviolent, drug-related crimes and other crimes such as petty theft, but taking into consideration their previous strikes.
Revise the drug-related strike that incapacitates mostly low-level offenders, which can reduce prison overcrowding with prisoners that do not present a grave social harm and racial disparity.
Explore other methods of limiting freedoms such as electronic monitoring or home detention.
Examine rehabilitation programs and implement those that have worked. In other words look for more ways to rehabilitate offenders than to incarcerate.
References
Beres, L., Griffith, T. (1998). Do three strikes laws make sense? Habitual offender statutes and criminal incapacitation. Georgetown Law Journal, 87 (1): 103-138.
King, R., & Mauer, M. (2001). Aging behind bars: "Three-strikes" seven years later. Washington, D.C.: The Sentencing Project.
LaCourse, Dave. (1994). Three strikes is working in Washington. Journal of Interpersonal Violence, 9:421-424.
Marvell, T., Moody, C. (2001). The lethal effects of three strikes law. Journal of Legal Studies, 30 (1): 89-106.
Mauer, M. (1996). Tree strikes policy is just a quick fix solution. Corrections Today, 58: 23.
Sandoval. J. (1996). Three Strikes is Good Criminal Justice Policy. Corrections Today, 58: 22.
Schafer, J. (1999). The deterrent effect of three strikes law. FBI Law Enforcement Bulletin, 68 (4): 6-10.
Stolzenberg, L., D'Alessio, S. (1997). "Three strikes and you're out": The impact of California's new mandatory sentencing law on serious crime rates. Crime & Delinquency, 43 (4): 457-469.
Tonry, M. (1996). Sentencing matters. Oxford University Press.
Turner, M., Sundt, J., Applegate, B., Cullen, F. (1996). Assessing public support for three strikes and you're out laws: Global versus specific attitudes. Crime & Delinquency, 42 (4): 517-534.
Turner, M., Sundt, J., Applegate, B., Cullen, F. (1995). "Three strikes and you're out" legislation: A national assessment. Federal Probation, 59: 16-35.
Turner, Susan. (2000). Impact of Truth in Sentencing and Three-Strikes Legislation on Crime. Crime and Justice Atlas 2000, NCJRS, p.10-11. Available online: URL: www.usdoj.gov/ncjrs.
Vitiello, M. (1997) Three strikes: Can we return to rationality? The Journal of Criminal Law and Criminology, 87: 395-481.
Wolfgang, M.E., Figlio, R.M., and Sellin, Thornstein (1972). Delinquency in a birth cohort. The University of Chicago Press.
Zimring, F., Hawkins, G., Kamin, S. (2001). Punishment and democracy: Three strikes and you're out in California. New York: Oxford University Press.
Good Article
Long Terms Voided in 2 Petty Thefts
Justice: Court did not reject three-strikes law, but ruling in two cases will affect many others.
By HENRY WEINSTEIN Times Staff Writer
February 8 2002
A federal appeals court Thursday struck down two lengthy sentences imposed under California's three-strikes law, saying that a 25-year-to-life term for petty theft constituted cruel and unusual punishment.
In a 3-0 ruling, the U.S. 9th Circuit Court of Appeals said explicitly that it was not overturning California's three-strikes law against repeat offenders, the toughest and most frequently used statute of its kind in the nation.
However, the decision states that a sentence has to be proportionate to the last crime an individual committed. That principle could undermine the statute because a long sentence would not be permitted solely because the defendant had two prior convictions.
The ruling almost certainly will affect 340 individuals now serving 25-year-to-life terms for petty theft under the state's three-strikes law. And it could also affect a number of the other 6,400 people in California who have received 25-year-to-life terms under the recidivist statute, which was enacted in 1994.
The two men who prevailed Thursday are Earnest Bray Jr., who was convicted in 1994 of shoplifting three videotapes from a Wherehouse store in San Joaquin County, and Richard Napoleon Brown, who was convicted in Long Beach in 1995 of stealing a $25 steering wheel car alarm from a Walgreens store. Bray and Brown both had convictions for prior violent offenses.
Judge Marsha S. Berzon of the 9th Circuit wrote in Thursday's decision that Bray and Brown's sentences were "grossly disproportionate" to the crime and therefore violated the 8th Amendment, which prohibits "cruel and unusual punishment."
The lengthy terms "were contrary to and unreasonable applications of clearly established Supreme Court law" on sentencing, Berzon added.
The court ordered that the two defendants, whose cases were consolidated for appeal, must be resentenced within 60 days or released.
The ruling was the second in three months in which the appeals court has overturned a three-strikes sentence. In the earlier decision, the 9th Circuit ruled 2 to 1 that a 50-year-to-life sentence imposed on Leandro Andrade for stealing videos from two Kmarts in San Bernardino County was grossly disproportionate to the offense.
The new ruling, which is written in somewhat broader language, appears to enhance the prospects that hundreds of inmates serving long terms under the three-strikes law will be able to successfully challenge their sentences.
"Thursday's decision stands for the proposition that the punishment has to fit the crime for which the person is sentenced," said USC law professor Erwin Chemerinsky, who represented the defendants at the 9th Circuit.
"This means that the 340 people serving 25-to-life for petty theft clearly have a basis for relief. Then the question would be what other crimes are so trivial to be treated like petty theft" on a three-strikes challenge, Chemerinsky said.
He said that since the Andrade decision was rendered, many lawyers around the state have been citing it during trials and in state court appeals of three-strike sentences.
Late last month, the California attorney general's office asked the U.S. Supreme Court to review the November ruling, because of its "overarching importance" to state sentencing laws.
On Thursday, a spokeswoman for California Atty. Gen. Bill Lockyer said the office is studying the latest decision but has not decided what its response will be.
"We hope the U.S. Supreme Court will consider the Andrade decision quickly," spokeswoman Hallye Jordan said. The attorney general's office could amend its petition to the Supreme Court, in light of the new decision.
Normally, California law treats petty theft offenses as misdemeanors, punishable by up to six months in county jail and up to a $1,000 fine.
Because Bray and Brown had been convicted of several prior offenses, their thefts were enhanced to felonies under the state penal code. They were then enhanced again under the three-strikes law, which mandates that an offender convicted of two serious or violent felonies faces a 25 year-to-life sentence if convicted of a third felony of any kind.
Stephanie A. Mayoshi, an assistant attorney general, argued to the 9th Circuit that the Bray and Brown cases could be distinguished from the Andrade ruling because the minimum terms were only half as long.
But Berzon, joined by judges Stephen Reinhardt and A. Wallace Tashima, rejected that argument.
Berzon noted that Andrade had been convicted of two separate thefts from two Kmarts and got 25 years to life for each one, adding up to 50 years to life. In contrast, both Bray and Brown had been convicted of one theft each. Consequently, the sentences were functionally equivalent and thus the cases were indistinguishable, Berzon wrote.
"If Andrade's 50-year-to-life sentence for two petty theft convictions was grossly disproportionate, it follows that a 25-year-to-life sentence is grossly disproportionate to one petty theft conviction," the judge emphasized.
Moreover, Berzon suggested that the Bray and Brown cases might be even more inequitable because they ultimately could wind up serving life sentences for one petty theft conviction, whereas if Andrade wound up serving life it would be for two petty theft convictions.
Thursday's decision is also noteworthy because both defendants had been convicted of prior crimes of violence and appeared less sympathetic than Andrade, who had no violent priors. That makes it likely that this ruling will affect more inmates, Chemerinsky said.
Bray was convicted in 1980 on three separate counts of robbery, according to the 9th Circuit decision. The first two convictions stemmed from a 1979 incident in which Bray and a co-defendant stole a purse and a briefcase from the driver of a car.
"When the victim grabbed Bray, his co-defendant, who was brandishing a gun, pointed it at the driver's head and threatened to kill her if she did not release Bray. The victim complied," Berzon noted. Bray's third conviction stemmed from a separate incident in which he and several co-defendants stole a watch from a man who was hit in the face and kicked by one of the co-defendants.
Brown has a total of five serious or violent prior felony convictions, including two counts of second-degree burglary, two counts of assault with a deadly weapon and a robbery, Berzon wrote.
Both Bray and Brown appealed their sentences to a state appeals court and their pleas were rejected in unpublished opinions. The California Supreme Court declined to review either case. Then, the two inmates filed writs of habeas corpus, challenging the constitutionality of their sentences. Federal district court judges rejected their claims and the inmates appealed to the 9th Circuit, setting the stage for Thursday's ruling.
The three-strikes law was approved by California voters in 1994 amid a huge furor over the kidnapping and murder of Polly Klaas, a 12-year-old Petaluma girl. Eventually, Richard Allen Davis, who was on parole at the time of the slaying, was convicted of Klaas' murder and received a death sentence.
Although a number of prosecutors have said that the statute has been a useful deterrent, numerous critics have said it has been used unjustly to hand down severe sentences to individuals who have committed minor crimes.
Secretary of State Bill Jones, who authored the three-strikes law when he was in the Legislature, defended the law and criticized the ruling.
"The court's decision today threatens to put more repeat murderers, robbers, rapists and child molesters back in our neighborhoods," said Jones, who is running for governor in the Republican primary.
Lockyer's spokeswoman said Thursday that he "supports the current three-strikes law," particularly in light of a 1996 California Supreme Court decision which granted trial judges the power to overlook prior convictions in a potential three-strikes case. Judges also have the option of rejecting earlier offenses prosecutors seek to use as first and second strikes.
But Thursday's decision represents "the other shoe dropping" on the three-strikes law, said Franklin E. Zimring, a professor at UC Berkeley's Boalt Hall School of Law.
"This is an indication," Zimring said, "that the Andrade decision was not an outlier, a single case."
Justice: Court did not reject three-strikes law, but ruling in two cases will affect many others.
By HENRY WEINSTEIN Times Staff Writer
February 8 2002
A federal appeals court Thursday struck down two lengthy sentences imposed under California's three-strikes law, saying that a 25-year-to-life term for petty theft constituted cruel and unusual punishment.
In a 3-0 ruling, the U.S. 9th Circuit Court of Appeals said explicitly that it was not overturning California's three-strikes law against repeat offenders, the toughest and most frequently used statute of its kind in the nation.
However, the decision states that a sentence has to be proportionate to the last crime an individual committed. That principle could undermine the statute because a long sentence would not be permitted solely because the defendant had two prior convictions.
The ruling almost certainly will affect 340 individuals now serving 25-year-to-life terms for petty theft under the state's three-strikes law. And it could also affect a number of the other 6,400 people in California who have received 25-year-to-life terms under the recidivist statute, which was enacted in 1994.
The two men who prevailed Thursday are Earnest Bray Jr., who was convicted in 1994 of shoplifting three videotapes from a Wherehouse store in San Joaquin County, and Richard Napoleon Brown, who was convicted in Long Beach in 1995 of stealing a $25 steering wheel car alarm from a Walgreens store. Bray and Brown both had convictions for prior violent offenses.
Judge Marsha S. Berzon of the 9th Circuit wrote in Thursday's decision that Bray and Brown's sentences were "grossly disproportionate" to the crime and therefore violated the 8th Amendment, which prohibits "cruel and unusual punishment."
The lengthy terms "were contrary to and unreasonable applications of clearly established Supreme Court law" on sentencing, Berzon added.
The court ordered that the two defendants, whose cases were consolidated for appeal, must be resentenced within 60 days or released.
The ruling was the second in three months in which the appeals court has overturned a three-strikes sentence. In the earlier decision, the 9th Circuit ruled 2 to 1 that a 50-year-to-life sentence imposed on Leandro Andrade for stealing videos from two Kmarts in San Bernardino County was grossly disproportionate to the offense.
The new ruling, which is written in somewhat broader language, appears to enhance the prospects that hundreds of inmates serving long terms under the three-strikes law will be able to successfully challenge their sentences.
"Thursday's decision stands for the proposition that the punishment has to fit the crime for which the person is sentenced," said USC law professor Erwin Chemerinsky, who represented the defendants at the 9th Circuit.
"This means that the 340 people serving 25-to-life for petty theft clearly have a basis for relief. Then the question would be what other crimes are so trivial to be treated like petty theft" on a three-strikes challenge, Chemerinsky said.
He said that since the Andrade decision was rendered, many lawyers around the state have been citing it during trials and in state court appeals of three-strike sentences.
Late last month, the California attorney general's office asked the U.S. Supreme Court to review the November ruling, because of its "overarching importance" to state sentencing laws.
On Thursday, a spokeswoman for California Atty. Gen. Bill Lockyer said the office is studying the latest decision but has not decided what its response will be.
"We hope the U.S. Supreme Court will consider the Andrade decision quickly," spokeswoman Hallye Jordan said. The attorney general's office could amend its petition to the Supreme Court, in light of the new decision.
Normally, California law treats petty theft offenses as misdemeanors, punishable by up to six months in county jail and up to a $1,000 fine.
Because Bray and Brown had been convicted of several prior offenses, their thefts were enhanced to felonies under the state penal code. They were then enhanced again under the three-strikes law, which mandates that an offender convicted of two serious or violent felonies faces a 25 year-to-life sentence if convicted of a third felony of any kind.
Stephanie A. Mayoshi, an assistant attorney general, argued to the 9th Circuit that the Bray and Brown cases could be distinguished from the Andrade ruling because the minimum terms were only half as long.
But Berzon, joined by judges Stephen Reinhardt and A. Wallace Tashima, rejected that argument.
Berzon noted that Andrade had been convicted of two separate thefts from two Kmarts and got 25 years to life for each one, adding up to 50 years to life. In contrast, both Bray and Brown had been convicted of one theft each. Consequently, the sentences were functionally equivalent and thus the cases were indistinguishable, Berzon wrote.
"If Andrade's 50-year-to-life sentence for two petty theft convictions was grossly disproportionate, it follows that a 25-year-to-life sentence is grossly disproportionate to one petty theft conviction," the judge emphasized.
Moreover, Berzon suggested that the Bray and Brown cases might be even more inequitable because they ultimately could wind up serving life sentences for one petty theft conviction, whereas if Andrade wound up serving life it would be for two petty theft convictions.
Thursday's decision is also noteworthy because both defendants had been convicted of prior crimes of violence and appeared less sympathetic than Andrade, who had no violent priors. That makes it likely that this ruling will affect more inmates, Chemerinsky said.
Bray was convicted in 1980 on three separate counts of robbery, according to the 9th Circuit decision. The first two convictions stemmed from a 1979 incident in which Bray and a co-defendant stole a purse and a briefcase from the driver of a car.
"When the victim grabbed Bray, his co-defendant, who was brandishing a gun, pointed it at the driver's head and threatened to kill her if she did not release Bray. The victim complied," Berzon noted. Bray's third conviction stemmed from a separate incident in which he and several co-defendants stole a watch from a man who was hit in the face and kicked by one of the co-defendants.
Brown has a total of five serious or violent prior felony convictions, including two counts of second-degree burglary, two counts of assault with a deadly weapon and a robbery, Berzon wrote.
Both Bray and Brown appealed their sentences to a state appeals court and their pleas were rejected in unpublished opinions. The California Supreme Court declined to review either case. Then, the two inmates filed writs of habeas corpus, challenging the constitutionality of their sentences. Federal district court judges rejected their claims and the inmates appealed to the 9th Circuit, setting the stage for Thursday's ruling.
The three-strikes law was approved by California voters in 1994 amid a huge furor over the kidnapping and murder of Polly Klaas, a 12-year-old Petaluma girl. Eventually, Richard Allen Davis, who was on parole at the time of the slaying, was convicted of Klaas' murder and received a death sentence.
Although a number of prosecutors have said that the statute has been a useful deterrent, numerous critics have said it has been used unjustly to hand down severe sentences to individuals who have committed minor crimes.
Secretary of State Bill Jones, who authored the three-strikes law when he was in the Legislature, defended the law and criticized the ruling.
"The court's decision today threatens to put more repeat murderers, robbers, rapists and child molesters back in our neighborhoods," said Jones, who is running for governor in the Republican primary.
Lockyer's spokeswoman said Thursday that he "supports the current three-strikes law," particularly in light of a 1996 California Supreme Court decision which granted trial judges the power to overlook prior convictions in a potential three-strikes case. Judges also have the option of rejecting earlier offenses prosecutors seek to use as first and second strikes.
But Thursday's decision represents "the other shoe dropping" on the three-strikes law, said Franklin E. Zimring, a professor at UC Berkeley's Boalt Hall School of Law.
"This is an indication," Zimring said, "that the Andrade decision was not an outlier, a single case."
Tuesday, April 1, 2008
Prop 66
THE INDEPENDENT AND NON-PARTISAN SURVEY
OF PUBLIC OPINION ESTABLISHED IN 1947 AS
THE CALIFORNIA POLL BY MERVIN FIELD
Field Research Corporation
222 Sutter Street, Suite 700
San Francisco, CA 94108-4411
(415) 392-5763 FAX: (415) 434-2541
EMAIL: fieldpoll@field.com
www.field.com/fieldpollonline
Field Research Corporation is an Equal Opportunity / Affirmative Action Employer
THE
FIELD
POLL
COPYRIGHT 2004 BY FIELD RESEARCH CORPORATION. FOR PUBLICATION BY SUBSCRIBERS ONLY.
Release #2129 Release Date: Saturday, August 14, 2004
PROPOSITIONS 66 AND 64
VOTERS APPEAR DISPOSED TO PUT LIMITS
ON STATE’S “THREE STRIKES” LAW.
TORT REFORM PROPOSAL TRAILING.
IMPORTANT: Contract for this service is
subject to revocation if publication or broadcast
takes place before release date or if contents are
divulged to persons outside of subscriber staff
prior to release time. (ISSN 0195-4520)
by Mark DiCamillo and Mervin Field
California voters appear to be quite one-sided in their support of Proposition 66, the initiative that
would put limitations on the state’s “three strikes” criminal sentencing law.
A Field Poll completed July 30 – August 8 found that about four in ten voters (38%) had heard of
Prop. 66 and after all voters were read a summary of the description of Prop. 66 that will appear on
the November ballot, the division of sentiment was 69% Yes, 19% No, and 12% no opinion.
The wording of the summary that was read to voters was as follows:
“Proposition 66 is the “Limitations on Three Strikes Law; Sex Crimes,
Punishment” initiative. It limits the “Three Strikes” law to violent and/or serious
felonies and permits limited re-sentencing under new definitions. It also increases
punishment for specified sex crimes against children. Fiscal impact: Net savings
of up to several hundred million dollars annually, primarily to the prison system
and local jail and court-related costs of potentially more than 10 million dollars
annually. If the election were being held today, would you vote YES or NO on
Proposition 66?”
Support for the initiative is broad-based, with majorities of Democrats and Republicans, men and
women, as well as conservatives and liberals currently on the Yes side.
The Field Poll #2129
Saturday, August 14, 2004 Page 2
Table 1
Voter preferences regarding Proposition 66, the
“Limitations on Three Strikes Law” Initiative
(among likely voters)
Yes No Undecided
Total Statewide – August 69% 19 12
– May 76% 14 10
Party (August)
Democrats 77% 14 9
Republicans 60% 28 12
Non-partisans/others 68% 15 17
Gender (August)
Men 64% 24 12
Women 73% 15 12
Political ideology (August)
Conservative 59% 29 12
Middle-of-the-road 70% 19 11
Liberal 80% 5 15
Note: Wording of the ballot summary in the May survey differed somewhat from the official ballot label summary
which was read to voters in the August measure.
Voter misunderstanding?
After the initiative qualified for the ballot and The Field Poll released its first survey on the
measure in early June, there were some speculation in the news media that voters might not have
fully understood the intent of Prop. 66. In an attempt to determine if there was any
misunderstanding about the initiative in the current survey, a follow up question was added.
The results indicate that the large majority of voters understands the initiative’s main intent.
Three-fourths (74%) correctly say that it is their understanding that, if Prop. 66 were enacted,
criminals whose third strike conviction is for a non-violent or less serious crime would not
automatically get a long prison sentence. This compares to just one in six voters (16%) who
mistakenly believe that under Prop. 66 criminals convicted of a third strike crime of any kind
would still automatically get a long prison sentence.
Large majorities of both those intending to vote Yes and those intending to vote No appear to have
an accurate understanding of the intent of Prop. 66.
The Field Poll #2129
Saturday, August 14, 2004 Page 3
Table 2
Which statement is closer to your understanding of what
Prop. 66 would do if it were to become law?
(among likely voters)
Total
voters
Yes
voters
No
voters
Undecided
voters*
Criminals whose third strike
conviction is for a non-violent or
less serious crime would not
automatically get a long prison
sentence
74% 81% 68% 45%
Criminals convicted of a third strike
crime of any kind would still
automatically get a long prison
sentence
16 15 20 20
Don’t know 10 3 12 35
* Small sample base.
Governor and Attorney General opposition
Voters in this survey were then told that Governor Arnold Schwarzenegger and Attorney General
Bill Lockyer were opposed to Prop. 66 and asked if their opposition would have any affect on their
vote, and if so, in what direction. Almost four in five (78%) said that Schwarzenegger’s and
Lockyer’s opposition would not affect their vote. Among the small group who say they would be
affected, 10% said it would make them more likely to vote No, while 7% said it would make them
more inclined to vote Yes.
Table 3
How does Prop. 66’s opposition by Governor Arnold Schwarzenegger
and Attorney General Bill Lockyer affect your vote?
(among likely voters)
Total
voters
Yes
voters
No
voters
Undecided
voters*
Their opposition makes me
more inclined to vote
Yes 7% 9% 3% 2%
No 10 6 24 4
Has no effect 78 79 72 80
No opinion 5 6 1 14
* Small sample base.
The Field Poll #2129
Saturday, August 14, 2004 Page 4
Prop. 64 tort reform measure
Another initiative on the November ballot, which only 8% of likely voters were aware of in the
current survey, is Proposition 64, the “Limits on Private Enforcement of Unfair Business
Competition Laws” initiative. When read a summary of its official ballot description, 41% of
voters lined up on the No side, 21% were in favor, and 38% were undecided.
The wording of the ballot summary is:
“Proposition 64 is the “Limits on Private Enforcement of Unfair Business
Competition Laws” initiative. It allows individual or class action unfair business
lawsuits only if an actual loss is suffered and states that only government officials
may enforce these laws on the public’s behalf. Unknown state and local fiscal
impact depending on whether it increases or decreases the court work load and
the extent to which diverted funds are replaced. If the election were being held
today, would you vote YES or NO on Proposition 64?”
Table 4
Voter preferences regarding Prop. 64, the Limits on Private
Enforcement of Unfair Business Competition Laws Initiative
(among likely voters)
No Yes Undecided
Total Statewide 41% 21 38
Party
Democrats 39% 24 37
Republicans 40% 25 35
Non-partisans/others 46% 10 44
– 30 –
The Field Poll #2129
Saturday, August 14, 2004 Page 5
Information About the Survey
Sample Details
The findings in this report are based on interviews conducted among a random sample of 500 Californians
likely to vote in the November general election. Interviews were conducted by telephone in English and
Spanish July 30 – August 8, 2004. Sampling was carried out using random digit dial methodology which
gives all voters, including those whose phone number is listed and unlisted, an equal chance of being
contacted. Up to five attempts were made to reach a randomly selected voter at each number dialed. After
the completion of interviewing the larger registered voter sample was weighted to Field Poll estimates of
the state’s total registered voter population.
According to statistical theory, the overall results in this report have a sampling error of +/- 4.5 percentage
points at the 95% confidence level. These are other possible sources of error in any survey in addition to
sampling variability. Different results could occur because of differences in question wording, sequencing
or through omissions or errors in sampling, interviewing or data processing. Extensive efforts were made
to minimize such potential errors.
Questions Asked
Have you seen, read or heard anything about Proposition 66, having to do with placing limits on the state’s
Three Strikes criminal sentencing law?
Proposition 66 is the “Limitations on Three Strikes Law; Sex Crimes, Punishment” initiative. It limits the
“Three Strikes” law to violent and/or serious felonies and permits limited re-sentencing under new
definitions. It also increases punishment for specified sex crimes against children. Fiscal impact: Net
savings of up to several hundred million dollars annually, primarily to the prison system and local jail and
court-related costs of potentially more than 10 million dollars annually. If the election were being held
today, would you vote YES or NO on Proposition 66?
Which of the following two statements is closer to your understanding of what Proposition 66 would do if
it were to become law: (SEE RELEASE FOR CATEGORIES READ)
Governor Arnold Schwarzenegger and Attorney General Bill Lockyer are opposed to Prop. 66. Does their
opposition make you more inclined to vote YES, more inclined to vote NO, or does it have no effect on
how you will vote on Prop. 66?
Have you seen, read or heard anything about Proposition 64, having to do with placing limits on the
enforcement of unfair business competition laws?
Proposition 64 is the “Limits on Private Enforcement of Unfair Business Competition Laws” initiative. It
allows individual or class action unfair business lawsuits only if an actual loss is suffered and states that
only government officials may enforce these laws on the public’s behalf. Unknown state and local fiscal
impact depending on whether it increases or decreases the court work load and the extent to which diverted
funds are replaced. If the election were being held today, would you vote YES or NO on Proposition 64?
OF PUBLIC OPINION ESTABLISHED IN 1947 AS
THE CALIFORNIA POLL BY MERVIN FIELD
Field Research Corporation
222 Sutter Street, Suite 700
San Francisco, CA 94108-4411
(415) 392-5763 FAX: (415) 434-2541
EMAIL: fieldpoll@field.com
www.field.com/fieldpollonline
Field Research Corporation is an Equal Opportunity / Affirmative Action Employer
THE
FIELD
POLL
COPYRIGHT 2004 BY FIELD RESEARCH CORPORATION. FOR PUBLICATION BY SUBSCRIBERS ONLY.
Release #2129 Release Date: Saturday, August 14, 2004
PROPOSITIONS 66 AND 64
VOTERS APPEAR DISPOSED TO PUT LIMITS
ON STATE’S “THREE STRIKES” LAW.
TORT REFORM PROPOSAL TRAILING.
IMPORTANT: Contract for this service is
subject to revocation if publication or broadcast
takes place before release date or if contents are
divulged to persons outside of subscriber staff
prior to release time. (ISSN 0195-4520)
by Mark DiCamillo and Mervin Field
California voters appear to be quite one-sided in their support of Proposition 66, the initiative that
would put limitations on the state’s “three strikes” criminal sentencing law.
A Field Poll completed July 30 – August 8 found that about four in ten voters (38%) had heard of
Prop. 66 and after all voters were read a summary of the description of Prop. 66 that will appear on
the November ballot, the division of sentiment was 69% Yes, 19% No, and 12% no opinion.
The wording of the summary that was read to voters was as follows:
“Proposition 66 is the “Limitations on Three Strikes Law; Sex Crimes,
Punishment” initiative. It limits the “Three Strikes” law to violent and/or serious
felonies and permits limited re-sentencing under new definitions. It also increases
punishment for specified sex crimes against children. Fiscal impact: Net savings
of up to several hundred million dollars annually, primarily to the prison system
and local jail and court-related costs of potentially more than 10 million dollars
annually. If the election were being held today, would you vote YES or NO on
Proposition 66?”
Support for the initiative is broad-based, with majorities of Democrats and Republicans, men and
women, as well as conservatives and liberals currently on the Yes side.
The Field Poll #2129
Saturday, August 14, 2004 Page 2
Table 1
Voter preferences regarding Proposition 66, the
“Limitations on Three Strikes Law” Initiative
(among likely voters)
Yes No Undecided
Total Statewide – August 69% 19 12
– May 76% 14 10
Party (August)
Democrats 77% 14 9
Republicans 60% 28 12
Non-partisans/others 68% 15 17
Gender (August)
Men 64% 24 12
Women 73% 15 12
Political ideology (August)
Conservative 59% 29 12
Middle-of-the-road 70% 19 11
Liberal 80% 5 15
Note: Wording of the ballot summary in the May survey differed somewhat from the official ballot label summary
which was read to voters in the August measure.
Voter misunderstanding?
After the initiative qualified for the ballot and The Field Poll released its first survey on the
measure in early June, there were some speculation in the news media that voters might not have
fully understood the intent of Prop. 66. In an attempt to determine if there was any
misunderstanding about the initiative in the current survey, a follow up question was added.
The results indicate that the large majority of voters understands the initiative’s main intent.
Three-fourths (74%) correctly say that it is their understanding that, if Prop. 66 were enacted,
criminals whose third strike conviction is for a non-violent or less serious crime would not
automatically get a long prison sentence. This compares to just one in six voters (16%) who
mistakenly believe that under Prop. 66 criminals convicted of a third strike crime of any kind
would still automatically get a long prison sentence.
Large majorities of both those intending to vote Yes and those intending to vote No appear to have
an accurate understanding of the intent of Prop. 66.
The Field Poll #2129
Saturday, August 14, 2004 Page 3
Table 2
Which statement is closer to your understanding of what
Prop. 66 would do if it were to become law?
(among likely voters)
Total
voters
Yes
voters
No
voters
Undecided
voters*
Criminals whose third strike
conviction is for a non-violent or
less serious crime would not
automatically get a long prison
sentence
74% 81% 68% 45%
Criminals convicted of a third strike
crime of any kind would still
automatically get a long prison
sentence
16 15 20 20
Don’t know 10 3 12 35
* Small sample base.
Governor and Attorney General opposition
Voters in this survey were then told that Governor Arnold Schwarzenegger and Attorney General
Bill Lockyer were opposed to Prop. 66 and asked if their opposition would have any affect on their
vote, and if so, in what direction. Almost four in five (78%) said that Schwarzenegger’s and
Lockyer’s opposition would not affect their vote. Among the small group who say they would be
affected, 10% said it would make them more likely to vote No, while 7% said it would make them
more inclined to vote Yes.
Table 3
How does Prop. 66’s opposition by Governor Arnold Schwarzenegger
and Attorney General Bill Lockyer affect your vote?
(among likely voters)
Total
voters
Yes
voters
No
voters
Undecided
voters*
Their opposition makes me
more inclined to vote
Yes 7% 9% 3% 2%
No 10 6 24 4
Has no effect 78 79 72 80
No opinion 5 6 1 14
* Small sample base.
The Field Poll #2129
Saturday, August 14, 2004 Page 4
Prop. 64 tort reform measure
Another initiative on the November ballot, which only 8% of likely voters were aware of in the
current survey, is Proposition 64, the “Limits on Private Enforcement of Unfair Business
Competition Laws” initiative. When read a summary of its official ballot description, 41% of
voters lined up on the No side, 21% were in favor, and 38% were undecided.
The wording of the ballot summary is:
“Proposition 64 is the “Limits on Private Enforcement of Unfair Business
Competition Laws” initiative. It allows individual or class action unfair business
lawsuits only if an actual loss is suffered and states that only government officials
may enforce these laws on the public’s behalf. Unknown state and local fiscal
impact depending on whether it increases or decreases the court work load and
the extent to which diverted funds are replaced. If the election were being held
today, would you vote YES or NO on Proposition 64?”
Table 4
Voter preferences regarding Prop. 64, the Limits on Private
Enforcement of Unfair Business Competition Laws Initiative
(among likely voters)
No Yes Undecided
Total Statewide 41% 21 38
Party
Democrats 39% 24 37
Republicans 40% 25 35
Non-partisans/others 46% 10 44
– 30 –
The Field Poll #2129
Saturday, August 14, 2004 Page 5
Information About the Survey
Sample Details
The findings in this report are based on interviews conducted among a random sample of 500 Californians
likely to vote in the November general election. Interviews were conducted by telephone in English and
Spanish July 30 – August 8, 2004. Sampling was carried out using random digit dial methodology which
gives all voters, including those whose phone number is listed and unlisted, an equal chance of being
contacted. Up to five attempts were made to reach a randomly selected voter at each number dialed. After
the completion of interviewing the larger registered voter sample was weighted to Field Poll estimates of
the state’s total registered voter population.
According to statistical theory, the overall results in this report have a sampling error of +/- 4.5 percentage
points at the 95% confidence level. These are other possible sources of error in any survey in addition to
sampling variability. Different results could occur because of differences in question wording, sequencing
or through omissions or errors in sampling, interviewing or data processing. Extensive efforts were made
to minimize such potential errors.
Questions Asked
Have you seen, read or heard anything about Proposition 66, having to do with placing limits on the state’s
Three Strikes criminal sentencing law?
Proposition 66 is the “Limitations on Three Strikes Law; Sex Crimes, Punishment” initiative. It limits the
“Three Strikes” law to violent and/or serious felonies and permits limited re-sentencing under new
definitions. It also increases punishment for specified sex crimes against children. Fiscal impact: Net
savings of up to several hundred million dollars annually, primarily to the prison system and local jail and
court-related costs of potentially more than 10 million dollars annually. If the election were being held
today, would you vote YES or NO on Proposition 66?
Which of the following two statements is closer to your understanding of what Proposition 66 would do if
it were to become law: (SEE RELEASE FOR CATEGORIES READ)
Governor Arnold Schwarzenegger and Attorney General Bill Lockyer are opposed to Prop. 66. Does their
opposition make you more inclined to vote YES, more inclined to vote NO, or does it have no effect on
how you will vote on Prop. 66?
Have you seen, read or heard anything about Proposition 64, having to do with placing limits on the
enforcement of unfair business competition laws?
Proposition 64 is the “Limits on Private Enforcement of Unfair Business Competition Laws” initiative. It
allows individual or class action unfair business lawsuits only if an actual loss is suffered and states that
only government officials may enforce these laws on the public’s behalf. Unknown state and local fiscal
impact depending on whether it increases or decreases the court work load and the extent to which diverted
funds are replaced. If the election were being held today, would you vote YES or NO on Proposition 64?
A rare escape from 3-strikes law July 26, 2004
ISAAC RAMIREZ is a very lucky man. He's one of the few Californians to succeed in blunting the full force of California's "three strikes" juggernaut that has imposed life sentences on hundreds of Californians for relatively minor crimes, at an enormous cost to the taxpayer.
Ramirez's crime: stealing a $199 VCR in 1996 from a Sears store near San Bernardino. That's probably not the type of crime most voters had in mind when they passed California's harsh three strikes law in 1994 in response to the vicious murder of 12-year-old Polly Klaas.
Without the three strikes law, Ramirez, now 42, would have been charged with a misdemeanor, and served a maximum of six months in jail. Instead, the shoplifting incident -- Ramirez's "third strike" -- earned him a sentence of 25 years to life. "I saw people doing much less time for more serious offenses like murder and manslaughter," he told us. "The whole thing was unfair and ridiculous."
He taught himself law in prison, and, representing himself, filed a writ of habeas corpus, charging that his sentence violated the 8th Amendment of the U.S. Constitution barring "cruel and unusual punishment." Remarkably, the Ninth Circuit Court of Appeals in San Francisco agreed in April that his sentence was "grossly disproportionate" to the crimes he committed. It ordered him released after 5 1/2 years behind bars.
Ramirez's misfortune was that five years before the Sears incident -- and long before the "three strikes" law went into effect -- he had pleaded guilty to two other shoplifting charges: once when he tried to steal meat from a Lucky Store, and another when he attempted to steal a television set from Kmart.
Although he was unarmed in both cases, he was charged with taking personal property "by means of force and fear" -- a violent felony under the "three strikes" law. But Ramirez's actions bore no resemblance to the rap sheetof Polly Klaas' murderer, Richard Allen Davis. The fact that he was on the streets with his history of brutality became a rallying cry for passage of "three strikes."
In the Lucky Store incident, the getaway car, driven by a third person, nicked a security guard's foot, causing what the Ninth Circuit court described as "a minor injury." In the Kmart case, Ramirez pushed the security guard as he ran out of the store. "It is doubtful that California's 'three strikes' law was ever intended to apply to a nonviolent, three-time shoplifter such as Ramirez," the court found. Without its intervention, Ramirez would have had to serve a minimum of 25 years behind bars. At an annual cost of $31,000, the minimum cost to the taxpayer would have been $750,000.
Nearly two-thirds of the 7,373 "three strikes" inmates serving 25-year-to- life sentences as of March this year were convicted for nonviolent offenses, some as minor as those committed by Ramirez. At a cost approaching $1 million to incarcerate each of them, Californians must ask whether this is an expense the state can afford, especially as it grapples with perhaps the worst budget crisis in its history.
The advocacy group Justice Policy Institute is the only organization to have tried to estimate how much it costs to enforce. Between March 1994 and September 2003, the organization calculates that the law has added an additional 269,134 prison years to inmates' sentences -- at a cost of $8.1 billion. Of that amount, $4.7 billion is paying for 143,439 additional years inmates are serving for nonviolent offenses.
California spends an ever increasing share of its revenues on its prison system. A major factor in driving up costs has been the tenfold growth in the number of inmates incarcerated under the "three strikes" law -- from 4,408 in 1994 to 42,322 in 2004. That's one out of four California inmates.
These days, a relieved Ramirez works as a maintenance worker at the New Hope Family Worship Center near Riverside where he also runs its prison ministry. "I feel my prayers have come true, that a miracle has happened, but I feel my work isn't done yet," he says. "There are so many others that have cases like mine, and no one really cares about them."
For most Californians, caring is not the issue. A more basic question is whether it makes sense to spend billions of dollars keeping someone like Isaac Ramirez behind bars for decades. We don't think it does.
This article appeared on page B - 6 of the San Francisco Chronicle
Ramirez's crime: stealing a $199 VCR in 1996 from a Sears store near San Bernardino. That's probably not the type of crime most voters had in mind when they passed California's harsh three strikes law in 1994 in response to the vicious murder of 12-year-old Polly Klaas.
Without the three strikes law, Ramirez, now 42, would have been charged with a misdemeanor, and served a maximum of six months in jail. Instead, the shoplifting incident -- Ramirez's "third strike" -- earned him a sentence of 25 years to life. "I saw people doing much less time for more serious offenses like murder and manslaughter," he told us. "The whole thing was unfair and ridiculous."
He taught himself law in prison, and, representing himself, filed a writ of habeas corpus, charging that his sentence violated the 8th Amendment of the U.S. Constitution barring "cruel and unusual punishment." Remarkably, the Ninth Circuit Court of Appeals in San Francisco agreed in April that his sentence was "grossly disproportionate" to the crimes he committed. It ordered him released after 5 1/2 years behind bars.
Ramirez's misfortune was that five years before the Sears incident -- and long before the "three strikes" law went into effect -- he had pleaded guilty to two other shoplifting charges: once when he tried to steal meat from a Lucky Store, and another when he attempted to steal a television set from Kmart.
Although he was unarmed in both cases, he was charged with taking personal property "by means of force and fear" -- a violent felony under the "three strikes" law. But Ramirez's actions bore no resemblance to the rap sheetof Polly Klaas' murderer, Richard Allen Davis. The fact that he was on the streets with his history of brutality became a rallying cry for passage of "three strikes."
In the Lucky Store incident, the getaway car, driven by a third person, nicked a security guard's foot, causing what the Ninth Circuit court described as "a minor injury." In the Kmart case, Ramirez pushed the security guard as he ran out of the store. "It is doubtful that California's 'three strikes' law was ever intended to apply to a nonviolent, three-time shoplifter such as Ramirez," the court found. Without its intervention, Ramirez would have had to serve a minimum of 25 years behind bars. At an annual cost of $31,000, the minimum cost to the taxpayer would have been $750,000.
Nearly two-thirds of the 7,373 "three strikes" inmates serving 25-year-to- life sentences as of March this year were convicted for nonviolent offenses, some as minor as those committed by Ramirez. At a cost approaching $1 million to incarcerate each of them, Californians must ask whether this is an expense the state can afford, especially as it grapples with perhaps the worst budget crisis in its history.
The advocacy group Justice Policy Institute is the only organization to have tried to estimate how much it costs to enforce. Between March 1994 and September 2003, the organization calculates that the law has added an additional 269,134 prison years to inmates' sentences -- at a cost of $8.1 billion. Of that amount, $4.7 billion is paying for 143,439 additional years inmates are serving for nonviolent offenses.
California spends an ever increasing share of its revenues on its prison system. A major factor in driving up costs has been the tenfold growth in the number of inmates incarcerated under the "three strikes" law -- from 4,408 in 1994 to 42,322 in 2004. That's one out of four California inmates.
These days, a relieved Ramirez works as a maintenance worker at the New Hope Family Worship Center near Riverside where he also runs its prison ministry. "I feel my prayers have come true, that a miracle has happened, but I feel my work isn't done yet," he says. "There are so many others that have cases like mine, and no one really cares about them."
For most Californians, caring is not the issue. A more basic question is whether it makes sense to spend billions of dollars keeping someone like Isaac Ramirez behind bars for decades. We don't think it does.
This article appeared on page B - 6 of the San Francisco Chronicle
Debate between the Klass family regarding the Three Strike Law
Paper: San Diego Union-Tribune, The (CA)
Title: `3 strikes' campaign splits Klaas family
Victim's grandfather, father strongly differ on Prop. 66 changes
Date: July 14, 2004
The tragedy of his daughter's murder thrust a grieving Marc Klaas onto the public stage nearly 11 years ago. Now the tough anti-crime law forever linked to Polly Klaas' death has triggered a feud between Marc and his father, Joe Klaas.
They are two of the most prominent voices in a bitter campaign over whether to modify the "three strikes" sentencing law, which was fueled by anger over the 12-year-old girl's slaying in October 1993. Their disagreement over Proposition 66 on the November ballot is in some ways a fight over the political legacy of Polly's killing.
Once united against the original three-strikes law, Marc and Joe Klaas now are so divided on the issue that they aren't speaking to each other.
Marc Klaas believes the nation's toughest three-strikes law works well.
" `Three strikes' is where it should be," he said. "Crime has gone down and none of the dire predictions about it have come true."
Joe Klaas has campaigned for years to change the law. He's now serving as the spokesman for the ballot measure that would amend the law by requiring that second- and third-strike felonies be either violent or serious.
Under the current law, defendants with one serious or violent felony conviction have their sentences doubled if they commit any new felony. Those with two convictions face 25 years to life for their next felony, regardless of its severity.
Joe Klaas believes the law is unjust and costly. The money spent locking up nonviolent criminals could fund other services, he contends.
"This state is really strapped," he said. "They are closing libraries. They are closing day-care centers. People don't want that."
Proposition 66, which had strong public support in a poll last month, would impose a penalty of 25 years to life only if the third felony is a serious or violent crime. It would also reduce the number of crimes that qualify for strikes and increase sentences for child molesters.
The measure would allow thousands of offenders to have their sentences reduced and save the state hundreds of millions of dollars, according to the nonpartisan legislative analyst.
Ten years ago, the three-strikes law was passed amid a politically charged atmosphere and public outrage over violent crime.
In 1993, the slaying of Polly Klaas, kidnapped during a slumber party at her Petaluma home, seized the nation's attention and served as a flash point for public concern over violent crime.
Hundreds of volunteers helped in the search for the missing child. Eventually, Richard Allen Davis, a repeat violent offender, was captured, tried and convicted for her murder. Since then, he has been sentenced to death.
Just after his daughter's body was found, Marc Klaas teamed up with Mike Reynolds, whose daughter, Kimber Reynolds, had been killed nearly 18 months earlier.
Reynolds was working hard to pass the three-strikes law.
Klaas endorsed the measure, prompting thousands of volunteers to gather signatures to qualify the initiative in 1994. Nearly 100,000 of the 800,000 signatures the measure needed came from residents of Sonoma County, where Polly lived.
Within a few months, the Klaas family broke with Reynolds. They believed his version would force the state to spend too much money locking away nonviolent criminals, leaving less money for other services and programs.
Marc and Joe Klaas toured the state to speak against the measure.
They were joined in their opposition by an unlikely ally, the California District Attorneys Association. The group favored an alternative that would have targeted violent offenders. They even named the law, with Marc Klaas' blessing, the Polly Klaas Memorial Habitual Offender Reform Act.
By this time, momentum had swung against the Klaas family. The Legislature passed the law favored by Reynolds, then-Gov. Pete Wilson and the prison guards union.
In November 1994, voters approved the law by 72 percent to 28 percent.
Reynolds, a wedding photographer from Fresno, took his campaign nationwide. Now 24 states and the federal government have three-strikes laws.
But Reynolds said none of those laws is as strong as the one passed in California because they all require strikes to be violent and serious crimes. The California law has added years to the sentences of more than 58,000 criminals, he said.
In California, a petty thief with two strikes can get a 25-years-to-life sentence in some cases, forcing the criminal to wait longer for parole than someone convicted of second-degree murder, which carries a 15-to-life sentence. In San Diego, Steve Elias was sentenced to 25 years to life in prison for stealing a printer at a hospital.
Elias is among the 357 inmates serving a third-strike sentence for petty theft. An additional 678 are serving such sentences for drug possession and 235 for auto theft, according to the Department of Corrections.
"I don't think we ought to be locking people up for stealing golf clubs. What kind of justice is that?" said Joe Klaas, referring to another publicized case.
Several initiatives to modify the three-strikes law have failed to qualify for the ballot, doomed by the lack of money to hire signature gatherers.
Joe Klaas said he is thrilled that the measure is on the ballot and that it gained support from 76 percent of voters surveyed in the nonpartisan Field Poll in June.
"I've been working on this for 10 years. The word finally got out," he said.
But Marc Klaas said he's horrified.
During the past 10 years, the former owner of a car-rental franchise has become a full-time advocate. He heads the Klaas Kids foundation, based in Sausalito, that helps promote child safety by supporting programs such as Amber Alert, which notifies the public about child abductions.
He now supports the three-strikes law he once opposed.
Court decisions have made it easier for judges and prosecutors to use discretion so pizza thievesalso a highly publicized casedon't end up in prison for life, he said.
Further, he was persuaded by a study of DNA samples in Virginia, which requires samples from all felons. Among the matches for unsolved crimes the state has found, 60 percent come from inmates convicted of violent felonies and 40 percent from nonviolent offenders.
Those results convinced Klaas that many nonviolent felons have also committed violent crimes. "The fact that they get busted for shoplifting and stealing pizza means they have a propensity for all types of crime," he said.
Klaas also dislikes a provision in Proposition 66 that would allow those convicted under the old law to apply for reduced sentences.
Opponents say that could lead to the release of 26,000 repeat offenders, including second-strikers. Backers of the measure contend that it applies only to about 4,000 three-strikes criminals whose last conviction was nonviolent.
Reynolds believes Marc Klaas' change of heart shows great integrity.
"It takes a real man to admit he's wrong," he said. "We're talking serious courage. I've got to hand it to the guy."
Marc Klaas isn't the only one to switch positions.
The California District Attorneys Association, which once opposed the law, now supports it.
San Diego District Attorney Bonnie Dumanis said she has come full circle on the three-strikes law. After initially calling the law too rigid, she said she saw firsthand as a judge that it worked. It gave offenders an incentive to go to drug treatment, and it was applied only to those with long criminal records, she said.
"I saw that a judge has the ability to exercise discretion and do the right thing," Dumanis said.
Marc Klaas said he plans to stay involved in the campaign opposing the new ballot measure to protect his daughter's legacy.
"The last thing I told my father about this is to never, ever use my daughter's name," Marc Klaas said. "I just don't want it to be part of her legacy that 26,000 bad boys are released on the streets and there's more little girls like Polly and more dads like me. Who wants to be part of that?"
Joe Klaas said he is honoring his son's request not to use Polly's name in the campaign.
In the past, he had said the law dishonors his granddaughter by equating her murder with the theft of a stereo from a home. Both crimes count as strikes.
In the campaign, both sides are using heated rhetoric that appears to deepen the rift between father and son. Opponents call the measure the most dangerous piece of legislation to come before voters in decades.
Joe Klaas, in a recent newspaper article, referred to three strikes as an "al-Qaeda-type" law.
Marc Klaas took offense to the comment. "Is he suggesting that me and the others are supporters of bin Laden?" he asked. "I can't even talk to my father about this."
Taking a swing at
`three strikes'
Proposition 66 on the Nov. 2 ballot would modify California's "three strikes" sentencing law, passed in 1994.
Its key provisions would:
Require a felony that triggers the second and third strike to be a violent or serious crime instead of any felony, as under current law. A second strike calls for the doubling of a sentence, while a third strike leads to a 25-years-to-life sentence.
Eliminate residential burglary from the list of serious felonies that qualify as strikes, except when prosecutors prove someone was in the home.
Allow prosecutors to count only one strike per prosecution instead of one strike per conviction, as current law requires.
Increase penalties for child molesters.
Bill Ainsworth: bill.ainsworth@uniontrib.com
Caption:
3 PICS
1 CHART
Caption:
1. Joe Klaas (left) and Marc Klaas, shown outside a courthouse in 1996, have found little common ground recently. 2. Taking a swing at `three strikes' 3. Polly Klaas 4. Richard Allen Davis
1. File photo / Associated Press
Copyright 2004 Union-Tribune Publishing Co.
Author: Bill Ainsworth
Section: NEWS
Page: A-1
Dateline: SACRAMENTO
Copyright 2004 Union-Tribune Publishing Co.
Title: `3 strikes' campaign splits Klaas family
Victim's grandfather, father strongly differ on Prop. 66 changes
Date: July 14, 2004
The tragedy of his daughter's murder thrust a grieving Marc Klaas onto the public stage nearly 11 years ago. Now the tough anti-crime law forever linked to Polly Klaas' death has triggered a feud between Marc and his father, Joe Klaas.
They are two of the most prominent voices in a bitter campaign over whether to modify the "three strikes" sentencing law, which was fueled by anger over the 12-year-old girl's slaying in October 1993. Their disagreement over Proposition 66 on the November ballot is in some ways a fight over the political legacy of Polly's killing.
Once united against the original three-strikes law, Marc and Joe Klaas now are so divided on the issue that they aren't speaking to each other.
Marc Klaas believes the nation's toughest three-strikes law works well.
" `Three strikes' is where it should be," he said. "Crime has gone down and none of the dire predictions about it have come true."
Joe Klaas has campaigned for years to change the law. He's now serving as the spokesman for the ballot measure that would amend the law by requiring that second- and third-strike felonies be either violent or serious.
Under the current law, defendants with one serious or violent felony conviction have their sentences doubled if they commit any new felony. Those with two convictions face 25 years to life for their next felony, regardless of its severity.
Joe Klaas believes the law is unjust and costly. The money spent locking up nonviolent criminals could fund other services, he contends.
"This state is really strapped," he said. "They are closing libraries. They are closing day-care centers. People don't want that."
Proposition 66, which had strong public support in a poll last month, would impose a penalty of 25 years to life only if the third felony is a serious or violent crime. It would also reduce the number of crimes that qualify for strikes and increase sentences for child molesters.
The measure would allow thousands of offenders to have their sentences reduced and save the state hundreds of millions of dollars, according to the nonpartisan legislative analyst.
Ten years ago, the three-strikes law was passed amid a politically charged atmosphere and public outrage over violent crime.
In 1993, the slaying of Polly Klaas, kidnapped during a slumber party at her Petaluma home, seized the nation's attention and served as a flash point for public concern over violent crime.
Hundreds of volunteers helped in the search for the missing child. Eventually, Richard Allen Davis, a repeat violent offender, was captured, tried and convicted for her murder. Since then, he has been sentenced to death.
Just after his daughter's body was found, Marc Klaas teamed up with Mike Reynolds, whose daughter, Kimber Reynolds, had been killed nearly 18 months earlier.
Reynolds was working hard to pass the three-strikes law.
Klaas endorsed the measure, prompting thousands of volunteers to gather signatures to qualify the initiative in 1994. Nearly 100,000 of the 800,000 signatures the measure needed came from residents of Sonoma County, where Polly lived.
Within a few months, the Klaas family broke with Reynolds. They believed his version would force the state to spend too much money locking away nonviolent criminals, leaving less money for other services and programs.
Marc and Joe Klaas toured the state to speak against the measure.
They were joined in their opposition by an unlikely ally, the California District Attorneys Association. The group favored an alternative that would have targeted violent offenders. They even named the law, with Marc Klaas' blessing, the Polly Klaas Memorial Habitual Offender Reform Act.
By this time, momentum had swung against the Klaas family. The Legislature passed the law favored by Reynolds, then-Gov. Pete Wilson and the prison guards union.
In November 1994, voters approved the law by 72 percent to 28 percent.
Reynolds, a wedding photographer from Fresno, took his campaign nationwide. Now 24 states and the federal government have three-strikes laws.
But Reynolds said none of those laws is as strong as the one passed in California because they all require strikes to be violent and serious crimes. The California law has added years to the sentences of more than 58,000 criminals, he said.
In California, a petty thief with two strikes can get a 25-years-to-life sentence in some cases, forcing the criminal to wait longer for parole than someone convicted of second-degree murder, which carries a 15-to-life sentence. In San Diego, Steve Elias was sentenced to 25 years to life in prison for stealing a printer at a hospital.
Elias is among the 357 inmates serving a third-strike sentence for petty theft. An additional 678 are serving such sentences for drug possession and 235 for auto theft, according to the Department of Corrections.
"I don't think we ought to be locking people up for stealing golf clubs. What kind of justice is that?" said Joe Klaas, referring to another publicized case.
Several initiatives to modify the three-strikes law have failed to qualify for the ballot, doomed by the lack of money to hire signature gatherers.
Joe Klaas said he is thrilled that the measure is on the ballot and that it gained support from 76 percent of voters surveyed in the nonpartisan Field Poll in June.
"I've been working on this for 10 years. The word finally got out," he said.
But Marc Klaas said he's horrified.
During the past 10 years, the former owner of a car-rental franchise has become a full-time advocate. He heads the Klaas Kids foundation, based in Sausalito, that helps promote child safety by supporting programs such as Amber Alert, which notifies the public about child abductions.
He now supports the three-strikes law he once opposed.
Court decisions have made it easier for judges and prosecutors to use discretion so pizza thievesalso a highly publicized casedon't end up in prison for life, he said.
Further, he was persuaded by a study of DNA samples in Virginia, which requires samples from all felons. Among the matches for unsolved crimes the state has found, 60 percent come from inmates convicted of violent felonies and 40 percent from nonviolent offenders.
Those results convinced Klaas that many nonviolent felons have also committed violent crimes. "The fact that they get busted for shoplifting and stealing pizza means they have a propensity for all types of crime," he said.
Klaas also dislikes a provision in Proposition 66 that would allow those convicted under the old law to apply for reduced sentences.
Opponents say that could lead to the release of 26,000 repeat offenders, including second-strikers. Backers of the measure contend that it applies only to about 4,000 three-strikes criminals whose last conviction was nonviolent.
Reynolds believes Marc Klaas' change of heart shows great integrity.
"It takes a real man to admit he's wrong," he said. "We're talking serious courage. I've got to hand it to the guy."
Marc Klaas isn't the only one to switch positions.
The California District Attorneys Association, which once opposed the law, now supports it.
San Diego District Attorney Bonnie Dumanis said she has come full circle on the three-strikes law. After initially calling the law too rigid, she said she saw firsthand as a judge that it worked. It gave offenders an incentive to go to drug treatment, and it was applied only to those with long criminal records, she said.
"I saw that a judge has the ability to exercise discretion and do the right thing," Dumanis said.
Marc Klaas said he plans to stay involved in the campaign opposing the new ballot measure to protect his daughter's legacy.
"The last thing I told my father about this is to never, ever use my daughter's name," Marc Klaas said. "I just don't want it to be part of her legacy that 26,000 bad boys are released on the streets and there's more little girls like Polly and more dads like me. Who wants to be part of that?"
Joe Klaas said he is honoring his son's request not to use Polly's name in the campaign.
In the past, he had said the law dishonors his granddaughter by equating her murder with the theft of a stereo from a home. Both crimes count as strikes.
In the campaign, both sides are using heated rhetoric that appears to deepen the rift between father and son. Opponents call the measure the most dangerous piece of legislation to come before voters in decades.
Joe Klaas, in a recent newspaper article, referred to three strikes as an "al-Qaeda-type" law.
Marc Klaas took offense to the comment. "Is he suggesting that me and the others are supporters of bin Laden?" he asked. "I can't even talk to my father about this."
Taking a swing at
`three strikes'
Proposition 66 on the Nov. 2 ballot would modify California's "three strikes" sentencing law, passed in 1994.
Its key provisions would:
Require a felony that triggers the second and third strike to be a violent or serious crime instead of any felony, as under current law. A second strike calls for the doubling of a sentence, while a third strike leads to a 25-years-to-life sentence.
Eliminate residential burglary from the list of serious felonies that qualify as strikes, except when prosecutors prove someone was in the home.
Allow prosecutors to count only one strike per prosecution instead of one strike per conviction, as current law requires.
Increase penalties for child molesters.
Bill Ainsworth: bill.ainsworth@uniontrib.com
Caption:
3 PICS
1 CHART
Caption:
1. Joe Klaas (left) and Marc Klaas, shown outside a courthouse in 1996, have found little common ground recently. 2. Taking a swing at `three strikes' 3. Polly Klaas 4. Richard Allen Davis
1. File photo / Associated Press
Copyright 2004 Union-Tribune Publishing Co.
Author: Bill Ainsworth
Section: NEWS
Page: A-1
Dateline: SACRAMENTO
Copyright 2004 Union-Tribune Publishing Co.
LARGE MAJORITY SUPPORTS EASING
THE INDEPENDENT AND NON-PARTISAN SURVEY
OF PUBLIC OPINION ESTABLISHED IN 1947 AS
THE CALIFORNIA POLL BY MERVIN FIELD
Field Research Corporation
222 Sutter Street, Suite 700
San Francisco, CA 94108-4411
(415) 392-5763 FAX: (415) 434-2541
EMAIL: fieldpoll@field.com
www.field.com/fieldpollonline
Field Research Corporation is an Equal Opportunity / Affirmative Action Employer
THE
FIELD
POLL
COPYRIGHT 2004 BY FIELD RESEARCH CORPORATION. FOR PUBLICATION BY SUBSCRIBERS ONLY.
Release #2121 Release Date: Thursday, June 10, 2004
LARGE MAJORITY SUPPORTS EASING OF
THREE STRIKES LAW. TELEPHONE SURTAX
TO FUND EMERGENCY SERVICES AND
OPEN PRIMARY LAW ALSO FAVORED, BUT
BY NARROWER MARGINS.
IMPORTANT: Contract for this service is
subject to revocation if publication or broadcast
takes place before release date or if contents are
divulged to persons outside of subscriber staff
prior to release time. (ISSN 0195-4520)
by Mark DiCamillo and Mervin Field
Among the long list of fourteen statewide propositions that have qualified for the November
general election ballot, three widely diverse measures are likely to generate considerable attention
and interest.
One would change the existing “three strikes” criminal sentencing law. This initiative calls for
amending the law so that repeat offenders would only face 25 years to life if they commit a serious
or violent felony on their third conviction. It would also re-define the violent felony offense as
inflicting “great bodily injury” and would permit courts to retroactively reduce penalties imposed
on people already imprisoned under the existing three strikes statute.
A second initiative to be voted on in November would place a 3 percent surcharge on telephone
bills that would raise an estimated $550 million for emergency rooms, trauma centers and other
emergency services provided at community clinics and hospitals.
A third initiative would open up primary elections for state and federal candidates to all voters
regardless of their party registration. The names of all candidates for an office would appear
together on a single primary election ballot. If none receives an outright majority, the two top vote
getters, regardless of party, would then face off in a general election match-up.
The Field Poll, in its most recent survey completed late May, assessed voters’ initial
predispositions to each of these propositions by reading a summary of its official ballot description
prepared by the Attorney General’s office.
The Field Poll #2121
Thursday, June 10, 2004 Page 2
Revising the “three strikes” criminal sentencing law
The “three strikes” revision law was posed to voters as follows:
“This initiative would amend the three strikes law to require increased sentences after a third
offense only when the current conviction is for a specified violent or serious felony. Only prior
convictions for specified violent or serious felonies would qualify for second and third strike
sentence increases, and allows for re-sentencing of persons if prior convictions used to increase
sentences no longer qualify as violent or serious felonies. It also increases punishment for
specified sex crimes against children. Fiscal impact: unknown but significant savings to the state
ranging from several tens of millions to several hundreds of millions of dollars annually. If the
election were being held today, would you vote YES or NO on this proposition?”
By a greater than five to one margin (76% to 14%) voters react favorably to the proposed
initiative. Very little differences in sentiment are apparent among each partisan subgroup.
Table 1
Initial voter preferences toward the statewide proposition
to revise the “Three Strikes” law
(among likely voters)
Yes No Undecided
Statewide 76% 14 10
Party
Democrats 80% 8 12
Republicans 74% 17 9
Non-partisans/others* 74% 20 6
* Small sample base.
Telephone surtax for emergency care
This is how this initiative was described to voters in this survey:
“This proposition provides for emergency personnel training and equipment reimbursement for
uncompensated emergency physician care, community clinic care, emergency telephone service
improvements and to hospitals for emergency services. It would be funded by adding a 3 per cent
surcharge on telephone use within California, with a cap of 50 cents for residential users per month.
Fiscal impact: Increased revenues of about 550 million dollars annually. If the election were being held
today, would you vote YES or NO on this proposition?”
Overall, 51% of likely voters indicate they are inclined to vote YES on this proposal and 38% say they
would vote NO. There is a decided partisan division in voter sentiments. Democrats favor the telephone
surtax by a two to one margin (61% to 30%). On the other hand, a small plurality of Republicans – 46%
NO and 41% YES – line up against the proposition. Non-partisans and others are slightly in favor of the
proposal, 48% to 39%.
The Field Poll #2121
Thursday, June 10, 2004 Page 3
Table 2
Initial voter preferences on the telephone surcharge for
emergency care ballot proposition
(among likely voters)
Yes No Undecided
Statewide 51% 38 11
Party
Democrats 61% 30 9
Republicans 41% 46 13
Non-partisans/others* 48% 39 13
* Small sample base.
Open primary initiative
The wording of the ballot summary posed to voters on the open primary initiative was as follows:
“This proposition would require that primary elections for state and federal candidate offices be
open to all voters regardless of party registration. The two candidates getting the most votes for
an office in the primary, whether or not from the same party, would then be listed on the general
election ballot. If a candidate receives a majority of the votes cast in the primary, he or she would
be elected. It also requires party consent to allow identification of candidates’ party on the
general election ballot. If the election were being held today, would you vote YES or NO on this
proposition?”
By slightly greater than a five to four margin (50% to 37%) voters are initially supportive of this
proposition. Non-partisans and those affiliated with parties other than the two major parties
strongly back the measure – 60% YES and 35% NO. Democrats also are initially supportive of the
open primary idea but by a smaller 48% to 31% margin. Republicans are about evenly divided –
46% YES and 45% NO.
Table 3
Initial voter preferences on the open primary ballot proposition
(among likely voters)
Yes No Undecided
Statewide 50% 37 13
Party
Democrats 48% 31 21
Republicans 46% 45 9
Non-partisans/others 60% 35 5
* Small sample base.
– 30 –
The Field Poll #2121
Thursday, June 10, 2004 Page 4
Information About the Survey
Sample Details
The findings in this report are based on a cross-section sampling of 647 likely voters in the November
statewide election. Interviews were conducted by telephone in English and Spanish May 18-24, 2004. Up
to five attempts were made to reach a randomly selected voter at each number dialed. After the completion
of interviewing, the larger registered voter sample was weighted to Field Poll estimates of the state’s total
registered voter population. In order to cover a broad range of issues and still minimize respondent fatigue,
the overall sample was divided into two random subsamples of 341 and 306 likely voters each when
measuring these three initiatives.
According to statistical theory, results in this report have a sampling error of +/- 5.8 percentage points at
the 95% confidence level. There are other possible sources of error in any survey in addition to sampling
variability. Different results could occur because of differences in question wording, sequencing or
through omissions or errors in sampling, interviewing or data processing. Extensive efforts were made to
minimize such potential errors.
Questions Asked
This initiative would amend the three strikes law to require increased sentences after a third offense only
when the current conviction is for a specified violent or serious felony. Only prior convictions for specified
violent or serious felonies would qualify for second and third strike sentence increases, and allows for resentencing
of persons if prior convictions used to increase sentences no longer qualify as violent or serious
felonies. It also increases punishment for specified sex crimes against children. Fiscal impact: unknown
but significant savings to the state ranging from several tens of millions to several hundreds of millions of
dollars annually. If the election were being held today, would you vote yes or no on this proposition?
This proposition provides for emergency personnel training and equipment reimbursement for
uncompensated emergency physician care, community clinic care, emergency telephone service
improvements and to hospitals for emergency services. It would be funded by adding a 3 per cent
surcharge on telephone use within California, with a cap of 50 cents for residential users per month. Fiscal
impact: Increased revenues of about 550 million dollars annually. If the election were being held today,
would you vote yes or no on this proposition?
This proposition would require that primary elections for state and federal candidate offices be open to all
voters regardless of party registration. The two candidates getting the most votes for an office in the
primary, whether or not from the same party, would then be listed on the general election ballot. If a
candidate receives a majority of the votes cast in the primary, he or she would be elected. It also requires
party consent to allow identification of candidates’ party on the general election ballot. If the election were
being held today, would you vote yes or no on this proposition?
OF PUBLIC OPINION ESTABLISHED IN 1947 AS
THE CALIFORNIA POLL BY MERVIN FIELD
Field Research Corporation
222 Sutter Street, Suite 700
San Francisco, CA 94108-4411
(415) 392-5763 FAX: (415) 434-2541
EMAIL: fieldpoll@field.com
www.field.com/fieldpollonline
Field Research Corporation is an Equal Opportunity / Affirmative Action Employer
THE
FIELD
POLL
COPYRIGHT 2004 BY FIELD RESEARCH CORPORATION. FOR PUBLICATION BY SUBSCRIBERS ONLY.
Release #2121 Release Date: Thursday, June 10, 2004
LARGE MAJORITY SUPPORTS EASING OF
THREE STRIKES LAW. TELEPHONE SURTAX
TO FUND EMERGENCY SERVICES AND
OPEN PRIMARY LAW ALSO FAVORED, BUT
BY NARROWER MARGINS.
IMPORTANT: Contract for this service is
subject to revocation if publication or broadcast
takes place before release date or if contents are
divulged to persons outside of subscriber staff
prior to release time. (ISSN 0195-4520)
by Mark DiCamillo and Mervin Field
Among the long list of fourteen statewide propositions that have qualified for the November
general election ballot, three widely diverse measures are likely to generate considerable attention
and interest.
One would change the existing “three strikes” criminal sentencing law. This initiative calls for
amending the law so that repeat offenders would only face 25 years to life if they commit a serious
or violent felony on their third conviction. It would also re-define the violent felony offense as
inflicting “great bodily injury” and would permit courts to retroactively reduce penalties imposed
on people already imprisoned under the existing three strikes statute.
A second initiative to be voted on in November would place a 3 percent surcharge on telephone
bills that would raise an estimated $550 million for emergency rooms, trauma centers and other
emergency services provided at community clinics and hospitals.
A third initiative would open up primary elections for state and federal candidates to all voters
regardless of their party registration. The names of all candidates for an office would appear
together on a single primary election ballot. If none receives an outright majority, the two top vote
getters, regardless of party, would then face off in a general election match-up.
The Field Poll, in its most recent survey completed late May, assessed voters’ initial
predispositions to each of these propositions by reading a summary of its official ballot description
prepared by the Attorney General’s office.
The Field Poll #2121
Thursday, June 10, 2004 Page 2
Revising the “three strikes” criminal sentencing law
The “three strikes” revision law was posed to voters as follows:
“This initiative would amend the three strikes law to require increased sentences after a third
offense only when the current conviction is for a specified violent or serious felony. Only prior
convictions for specified violent or serious felonies would qualify for second and third strike
sentence increases, and allows for re-sentencing of persons if prior convictions used to increase
sentences no longer qualify as violent or serious felonies. It also increases punishment for
specified sex crimes against children. Fiscal impact: unknown but significant savings to the state
ranging from several tens of millions to several hundreds of millions of dollars annually. If the
election were being held today, would you vote YES or NO on this proposition?”
By a greater than five to one margin (76% to 14%) voters react favorably to the proposed
initiative. Very little differences in sentiment are apparent among each partisan subgroup.
Table 1
Initial voter preferences toward the statewide proposition
to revise the “Three Strikes” law
(among likely voters)
Yes No Undecided
Statewide 76% 14 10
Party
Democrats 80% 8 12
Republicans 74% 17 9
Non-partisans/others* 74% 20 6
* Small sample base.
Telephone surtax for emergency care
This is how this initiative was described to voters in this survey:
“This proposition provides for emergency personnel training and equipment reimbursement for
uncompensated emergency physician care, community clinic care, emergency telephone service
improvements and to hospitals for emergency services. It would be funded by adding a 3 per cent
surcharge on telephone use within California, with a cap of 50 cents for residential users per month.
Fiscal impact: Increased revenues of about 550 million dollars annually. If the election were being held
today, would you vote YES or NO on this proposition?”
Overall, 51% of likely voters indicate they are inclined to vote YES on this proposal and 38% say they
would vote NO. There is a decided partisan division in voter sentiments. Democrats favor the telephone
surtax by a two to one margin (61% to 30%). On the other hand, a small plurality of Republicans – 46%
NO and 41% YES – line up against the proposition. Non-partisans and others are slightly in favor of the
proposal, 48% to 39%.
The Field Poll #2121
Thursday, June 10, 2004 Page 3
Table 2
Initial voter preferences on the telephone surcharge for
emergency care ballot proposition
(among likely voters)
Yes No Undecided
Statewide 51% 38 11
Party
Democrats 61% 30 9
Republicans 41% 46 13
Non-partisans/others* 48% 39 13
* Small sample base.
Open primary initiative
The wording of the ballot summary posed to voters on the open primary initiative was as follows:
“This proposition would require that primary elections for state and federal candidate offices be
open to all voters regardless of party registration. The two candidates getting the most votes for
an office in the primary, whether or not from the same party, would then be listed on the general
election ballot. If a candidate receives a majority of the votes cast in the primary, he or she would
be elected. It also requires party consent to allow identification of candidates’ party on the
general election ballot. If the election were being held today, would you vote YES or NO on this
proposition?”
By slightly greater than a five to four margin (50% to 37%) voters are initially supportive of this
proposition. Non-partisans and those affiliated with parties other than the two major parties
strongly back the measure – 60% YES and 35% NO. Democrats also are initially supportive of the
open primary idea but by a smaller 48% to 31% margin. Republicans are about evenly divided –
46% YES and 45% NO.
Table 3
Initial voter preferences on the open primary ballot proposition
(among likely voters)
Yes No Undecided
Statewide 50% 37 13
Party
Democrats 48% 31 21
Republicans 46% 45 9
Non-partisans/others 60% 35 5
* Small sample base.
– 30 –
The Field Poll #2121
Thursday, June 10, 2004 Page 4
Information About the Survey
Sample Details
The findings in this report are based on a cross-section sampling of 647 likely voters in the November
statewide election. Interviews were conducted by telephone in English and Spanish May 18-24, 2004. Up
to five attempts were made to reach a randomly selected voter at each number dialed. After the completion
of interviewing, the larger registered voter sample was weighted to Field Poll estimates of the state’s total
registered voter population. In order to cover a broad range of issues and still minimize respondent fatigue,
the overall sample was divided into two random subsamples of 341 and 306 likely voters each when
measuring these three initiatives.
According to statistical theory, results in this report have a sampling error of +/- 5.8 percentage points at
the 95% confidence level. There are other possible sources of error in any survey in addition to sampling
variability. Different results could occur because of differences in question wording, sequencing or
through omissions or errors in sampling, interviewing or data processing. Extensive efforts were made to
minimize such potential errors.
Questions Asked
This initiative would amend the three strikes law to require increased sentences after a third offense only
when the current conviction is for a specified violent or serious felony. Only prior convictions for specified
violent or serious felonies would qualify for second and third strike sentence increases, and allows for resentencing
of persons if prior convictions used to increase sentences no longer qualify as violent or serious
felonies. It also increases punishment for specified sex crimes against children. Fiscal impact: unknown
but significant savings to the state ranging from several tens of millions to several hundreds of millions of
dollars annually. If the election were being held today, would you vote yes or no on this proposition?
This proposition provides for emergency personnel training and equipment reimbursement for
uncompensated emergency physician care, community clinic care, emergency telephone service
improvements and to hospitals for emergency services. It would be funded by adding a 3 per cent
surcharge on telephone use within California, with a cap of 50 cents for residential users per month. Fiscal
impact: Increased revenues of about 550 million dollars annually. If the election were being held today,
would you vote yes or no on this proposition?
This proposition would require that primary elections for state and federal candidate offices be open to all
voters regardless of party registration. The two candidates getting the most votes for an office in the
primary, whether or not from the same party, would then be listed on the general election ballot. If a
candidate receives a majority of the votes cast in the primary, he or she would be elected. It also requires
party consent to allow identification of candidates’ party on the general election ballot. If the election were
being held today, would you vote yes or no on this proposition?
KLAAS FAMILY CRITICIZES 'THREE STRIKE' LAW
Paper: Daily News of Los Angeles (CA)
Title: KLAAS FAMILY CRITICIZES 'THREE STRIKE' LAW
Date: March 10, 1994
Polly Klaas' father and grandfather called California's new anti-crime law a politically motivated mistake and urged Gov. Pete Wilson to sign a rival bill to replace it.
Speaking on behalf of the Polly Klaas Foundation, Marc and Joseph Klaas told a Capitol press conference Wednesday that the new law costs too much, penalizes nonviolent felons too severely and is not tough enough on violent criminals like Richard Allen Davis, accused of kidnapping and killing the 13- year-old Petaluma girl.
"The Polly Klaas Foundation is not interested in spending $15 billion to
put burglars away for life," said Joe Klaas, Polly's grandfather.
The new law calls for a minimum sentence of 25 years to life for any conviction on a third felony charge if the prior two convictions were for
violent or serious felonies.
As an alternative, the Klaases urged Wilson to sign a bill by Assemblyman Richard Rainey, R-Walnut Creek, that would exclude nonviolent felonies such as burglary - thus saving an estimated 70 percent of the $21 billion in prison construction costs anticipated by 2027 because of the new law.
They added that the Rainey bill is tougher on third-time violent felons
because it would put them away for life without the possibility of parole, instead of a minimum of 20 years without parole under the new law, which was written by Assemblyman Bill Jones, R-Fresno.
The Klaases' statements marked an odd turn because it was Polly's slaying, allegedly by career criminal Davis, that caused the public outrage that led to the speedy passage of "three strikes."
Joe Klaas said that he was acquainted with a young man who had two teen- age burglary convictions before straightening out and that he did not want his friend put away for life if he ever passed a bad check. "The governor's use of Polly's name to pass (Assembly Bill) 971 is a cynical act," he said.
Marc Klaas, Polly's father, was less critical of Wilson, although he answered "yes, sir" when a reporter asked if he believed that the governor had signed the Jones bill for political reasons.
"I was very, very moved when he spoke at Polly's service," said Marc. ''I think the governor's a fine man. I just want him to consider signing the Rainey bill."
Wilson's press secretary, Sean Walsh, said the governor had not signed the bill for political motivations but had been a consistent advocate of anti- crime legislation during his three years in office.
Copyright (c) 1994 Daily News of Los Angeles
Author: Vlae Kersher San Francisco Chronicle
Section: NEWS
Page: N8
Dateline: SACRAMENTO
Copyright (c) 1994 Daily News of Los Angeles
Title: KLAAS FAMILY CRITICIZES 'THREE STRIKE' LAW
Date: March 10, 1994
Polly Klaas' father and grandfather called California's new anti-crime law a politically motivated mistake and urged Gov. Pete Wilson to sign a rival bill to replace it.
Speaking on behalf of the Polly Klaas Foundation, Marc and Joseph Klaas told a Capitol press conference Wednesday that the new law costs too much, penalizes nonviolent felons too severely and is not tough enough on violent criminals like Richard Allen Davis, accused of kidnapping and killing the 13- year-old Petaluma girl.
"The Polly Klaas Foundation is not interested in spending $15 billion to
put burglars away for life," said Joe Klaas, Polly's grandfather.
The new law calls for a minimum sentence of 25 years to life for any conviction on a third felony charge if the prior two convictions were for
violent or serious felonies.
As an alternative, the Klaases urged Wilson to sign a bill by Assemblyman Richard Rainey, R-Walnut Creek, that would exclude nonviolent felonies such as burglary - thus saving an estimated 70 percent of the $21 billion in prison construction costs anticipated by 2027 because of the new law.
They added that the Rainey bill is tougher on third-time violent felons
because it would put them away for life without the possibility of parole, instead of a minimum of 20 years without parole under the new law, which was written by Assemblyman Bill Jones, R-Fresno.
The Klaases' statements marked an odd turn because it was Polly's slaying, allegedly by career criminal Davis, that caused the public outrage that led to the speedy passage of "three strikes."
Joe Klaas said that he was acquainted with a young man who had two teen- age burglary convictions before straightening out and that he did not want his friend put away for life if he ever passed a bad check. "The governor's use of Polly's name to pass (Assembly Bill) 971 is a cynical act," he said.
Marc Klaas, Polly's father, was less critical of Wilson, although he answered "yes, sir" when a reporter asked if he believed that the governor had signed the Jones bill for political reasons.
"I was very, very moved when he spoke at Polly's service," said Marc. ''I think the governor's a fine man. I just want him to consider signing the Rainey bill."
Wilson's press secretary, Sean Walsh, said the governor had not signed the bill for political motivations but had been a consistent advocate of anti- crime legislation during his three years in office.
Copyright (c) 1994 Daily News of Los Angeles
Author: Vlae Kersher San Francisco Chronicle
Section: NEWS
Page: N8
Dateline: SACRAMENTO
Copyright (c) 1994 Daily News of Los Angeles
Proposition 21
Nonpartisan Pros & Cons of
PROPOSITION 21
JUVENILE CRIME.
Initiative Statute
THE QUESTION
Should the California juvenile justice system and California criminal laws be changed to increase punishment for certain crimes and increase the number of juveniles that can be prosecuted, sentenced and incarcerated as adults?
THE SITUATION
Most juvenile criminal cases are currently handled by the juvenile justice system. With approval from the juvenile justice system, some serious offenders may be tried as adults. However, current law prohibits juveniles from being housed with adult offenders, so most juveniles convicted in adult court are placed in a juvenile facility until they reach age 18.
There are approximately 100,000 juvenile offenders annually on probation in California. The majority of them are on formal probation, which requires that they appear before the court to resolve their cases. For most informal probation cases, no court hearing is held because the probation department can directly impose needed sanctions. After completion of informal probation, there is no record of the juvenile crime.
Juvenile criminal records are presently kept confidential, with some exceptions for juveniles convicted of felonies or charged with serious felonies. Current law regarding gang-related crime allows for sentencing up to three years.
THE PROPOSAL
Proposition 21 would require that serious juvenile offenders be treated more as adult offenders, with changes in which courts would try their cases, where they are housed, and the type of probation and confidentiality available to them. Additionally, it would increase the punishment for certain adult felonies and include them as "strikes" under the Three Strikes law.
Proposition 21 would:
· require adult trials for juveniles 14 years or older charged with specified offenses
· eliminate informal probation, and further limit confidentiality for juveniles who are charged with or convicted of specified felonies
· require that certain juvenile offenders be held in local or state correctional facilities rather than juvenile facilities
· designate additional crimes as violent and serious, thereby making offenders subject to longer sentences
· further increase punishment for gang-related offenses, and allow for the death penalty for gang-related murder
· provide indeterminate life sentences for home-invasion robbery, carjacking, witness intimidation and drive-by shootings
· authorize wiretapping for gang activities, and require persons convicted of gang-related crimes to register with law enforcement
FISCAL EFFECT
According to the Legislative Analyst, Proposition 21 would result in ongoing state costs of more than $330 million annually, due mostly to higher costs in the adult court and prison system. The state would also incur one-time costs of about $750 million for construction of additional incarceration facilities.
Potential ongoing costs to local governments are estimated to be between $20 million and more than $100 million annually, with potential one-time local costs ranging from $200 to $300 million. The initiative does not provide for resources to pay these costs.
SUPPORTERS SAY
· The "three strikes" law has contributed to a decline in adult crime, while juvenile crime continues to be serious and needs to be addressed.
· Law enforcement must have more power in prosecuting and convicting juvenile offenders for serious crimes and in dealing with gang members.
OPPONENTS SAY
· Department of Justice statistics show that serious juvenile crime has steadily declined in recent years, and California already has tough laws against gangs and youth crime.
· Proposition 21 carries a high price tag; more jails and prisons will need to be built, taking money away from other government services and current efforts to prevent violence.
PROPOSITION 21
JUVENILE CRIME.
Initiative Statute
THE QUESTION
Should the California juvenile justice system and California criminal laws be changed to increase punishment for certain crimes and increase the number of juveniles that can be prosecuted, sentenced and incarcerated as adults?
THE SITUATION
Most juvenile criminal cases are currently handled by the juvenile justice system. With approval from the juvenile justice system, some serious offenders may be tried as adults. However, current law prohibits juveniles from being housed with adult offenders, so most juveniles convicted in adult court are placed in a juvenile facility until they reach age 18.
There are approximately 100,000 juvenile offenders annually on probation in California. The majority of them are on formal probation, which requires that they appear before the court to resolve their cases. For most informal probation cases, no court hearing is held because the probation department can directly impose needed sanctions. After completion of informal probation, there is no record of the juvenile crime.
Juvenile criminal records are presently kept confidential, with some exceptions for juveniles convicted of felonies or charged with serious felonies. Current law regarding gang-related crime allows for sentencing up to three years.
THE PROPOSAL
Proposition 21 would require that serious juvenile offenders be treated more as adult offenders, with changes in which courts would try their cases, where they are housed, and the type of probation and confidentiality available to them. Additionally, it would increase the punishment for certain adult felonies and include them as "strikes" under the Three Strikes law.
Proposition 21 would:
· require adult trials for juveniles 14 years or older charged with specified offenses
· eliminate informal probation, and further limit confidentiality for juveniles who are charged with or convicted of specified felonies
· require that certain juvenile offenders be held in local or state correctional facilities rather than juvenile facilities
· designate additional crimes as violent and serious, thereby making offenders subject to longer sentences
· further increase punishment for gang-related offenses, and allow for the death penalty for gang-related murder
· provide indeterminate life sentences for home-invasion robbery, carjacking, witness intimidation and drive-by shootings
· authorize wiretapping for gang activities, and require persons convicted of gang-related crimes to register with law enforcement
FISCAL EFFECT
According to the Legislative Analyst, Proposition 21 would result in ongoing state costs of more than $330 million annually, due mostly to higher costs in the adult court and prison system. The state would also incur one-time costs of about $750 million for construction of additional incarceration facilities.
Potential ongoing costs to local governments are estimated to be between $20 million and more than $100 million annually, with potential one-time local costs ranging from $200 to $300 million. The initiative does not provide for resources to pay these costs.
SUPPORTERS SAY
· The "three strikes" law has contributed to a decline in adult crime, while juvenile crime continues to be serious and needs to be addressed.
· Law enforcement must have more power in prosecuting and convicting juvenile offenders for serious crimes and in dealing with gang members.
OPPONENTS SAY
· Department of Justice statistics show that serious juvenile crime has steadily declined in recent years, and California already has tough laws against gangs and youth crime.
· Proposition 21 carries a high price tag; more jails and prisons will need to be built, taking money away from other government services and current efforts to prevent violence.
Persuasive Objectives
Persuasive Objectives
The purpose of persuasive writing is generally to bring about attitudinal and/or behavioural change in the readers. Writers must first try to identify the readers' current position, then decide if they want to:
shape readers' attitudes on a topic about which they know little or have not given serious thought (e.g., convince them that drinking water should/should not be fluoridated)
reinforce existing attitudes about which they would like readers to feel even more strongly (e.g., convince them that they should be vigilant in their concern for high quality health care)
reverse attitudes they want readers to abandon (e.g., convince them to like something which they now dislike or persuade them that a problem exists where they feel everything is fine).
Planning Persuasive Strategies
Persuasive writers must plan the strategies they will use to gain reader support for the actions they recommend and the positions they advocate. Possible persuasive strategies include: emphasizing benefits for the readers, addressing readers' concerns, showing sound reasoning, and presenting reliable evidence.
Emphasizing Readers' Benefits
The writer explains to readers how they will benefit from performing the action, taking the position, or purchasing the product recommended. If the targeted readers are members of an organization, the writer might stress organizational objectives and organizational growth needs.
Addressing Readers' Concerns
It is always a good strategy for persuasive writers to try to predict what the readers' responses will be. They should try to counteract any negative thoughts or arguments that could possibly arise in their readers' minds.
Showing Sound Reasoning
Sound reasoning is the persuasive writer's best weapon. In many cases, it is not enough merely to identify the benefits of taking a position or an action. The writer needs to persuade readers that the decisions or actions recommended will actually bring about benefits, and explain why (e.g., the new equipment recommended will reduce costs because ...; the product modifications recommended will boost sales because ...).
Sound reasoning is essential when writers are drawing conclusions from a group of facts. Writers must persuade readers that the conclusions drawn are justified in the light of real evidence.
The Reasoning Process
In order to have confidence in the writer, readers must understand the following: the writer's claim, the evidence, and the line of reasoning.
The claim is the position the writer wants readers to accept.
The evidence consists of observations, facts, and other information provided in support of the claim.
The line of reasoning is the connecting link between the claim and the evidence-the reasons given for believing that the evidence proves the claim.
Presenting Reliable Evidence
Reliable evidence is the kind of evidence readers are willing to accept. This varies, depending on the field. For example, in many business situations, personal observations and anecdotes by knowledgeable individuals are accepted as reliable evidence. In scientific fields, certain experimental procedures are accepted as reliable, whereas common wisdom and ordinary observations are not. A writer needs to use common sense to determine what type of evidence is needed.
Note: Persuasive writing is an area in which students should pay particular attention to ethical considerations. Persuasion can be self-serving and manipulative. Students should be reminded to consider their readers' needs, and to build a case using facts and logic rather than unethical methods.
Organizing to Create a Positive Response
It is not only the variety and amount of information that is critical in a communication, but also the way in which readers process that information. As a persuasive writer, you must carefully choose the organizational pattern which best suits your purpose. You must also ensure that all the parts of your persuasive piece fit together tightly.
Direct Pattern of Organization
In a direct pattern of organization, the writer's main point is stated first. Evidence and other related information are given afterwards. For example, if a writer is recommending that a company make a particular purchase, he or she would begin with the recommendation, and present the arguments in favour of the purchase.
The direct organizational pattern works well when your readers' initial response is all important (e.g., you have worked out a solution to a problem, or you have good news). The direct pattern also works well when you are recommending a course of action, or presenting an analysis which you expect your readers to view favourably.
Indirect Pattern of Organization
An indirect pattern of organization postpones the "bottom line" statement until all the evidence and related information have been presented. You would first discuss the situation; then, make your recommendations after presenting your arguments. By using an indirect pattern, the writer can prepare readers for the recommendations about to be made (e.g., by discussing goals and strategies beforehand). The indirect pattern is particularly useful when you are conveying information which your readers might view as threatening. The indirect pattern avoids the risk of inciting readers' initial negative reactions. However, it can frustrate the reader who wants to know the "bottom line" first.
Choosing an Appropriate Voice
The voice you choose to write in is an important element of your persuasive strategy; it represents both the role you assign yourself and the role you assign your readers. For example, if you intend to write for your peers, but you assume the voice of a superior authority, your readers may resent their implied role as inferiors. If your audience responds to your voice in a negative way, it will not receive your message openly.
Establishing Your Credibility
Your credibility is the belief your readers have regarding whether you are a good source of information and ideas. When people believe you are credible, they are more likely to accept the things you say. If people do not find you credible, they may refuse to consider your ideas seriously, no matter how soundly you present your case.
The purpose of persuasive writing is generally to bring about attitudinal and/or behavioural change in the readers. Writers must first try to identify the readers' current position, then decide if they want to:
shape readers' attitudes on a topic about which they know little or have not given serious thought (e.g., convince them that drinking water should/should not be fluoridated)
reinforce existing attitudes about which they would like readers to feel even more strongly (e.g., convince them that they should be vigilant in their concern for high quality health care)
reverse attitudes they want readers to abandon (e.g., convince them to like something which they now dislike or persuade them that a problem exists where they feel everything is fine).
Planning Persuasive Strategies
Persuasive writers must plan the strategies they will use to gain reader support for the actions they recommend and the positions they advocate. Possible persuasive strategies include: emphasizing benefits for the readers, addressing readers' concerns, showing sound reasoning, and presenting reliable evidence.
Emphasizing Readers' Benefits
The writer explains to readers how they will benefit from performing the action, taking the position, or purchasing the product recommended. If the targeted readers are members of an organization, the writer might stress organizational objectives and organizational growth needs.
Addressing Readers' Concerns
It is always a good strategy for persuasive writers to try to predict what the readers' responses will be. They should try to counteract any negative thoughts or arguments that could possibly arise in their readers' minds.
Showing Sound Reasoning
Sound reasoning is the persuasive writer's best weapon. In many cases, it is not enough merely to identify the benefits of taking a position or an action. The writer needs to persuade readers that the decisions or actions recommended will actually bring about benefits, and explain why (e.g., the new equipment recommended will reduce costs because ...; the product modifications recommended will boost sales because ...).
Sound reasoning is essential when writers are drawing conclusions from a group of facts. Writers must persuade readers that the conclusions drawn are justified in the light of real evidence.
The Reasoning Process
In order to have confidence in the writer, readers must understand the following: the writer's claim, the evidence, and the line of reasoning.
The claim is the position the writer wants readers to accept.
The evidence consists of observations, facts, and other information provided in support of the claim.
The line of reasoning is the connecting link between the claim and the evidence-the reasons given for believing that the evidence proves the claim.
Presenting Reliable Evidence
Reliable evidence is the kind of evidence readers are willing to accept. This varies, depending on the field. For example, in many business situations, personal observations and anecdotes by knowledgeable individuals are accepted as reliable evidence. In scientific fields, certain experimental procedures are accepted as reliable, whereas common wisdom and ordinary observations are not. A writer needs to use common sense to determine what type of evidence is needed.
Note: Persuasive writing is an area in which students should pay particular attention to ethical considerations. Persuasion can be self-serving and manipulative. Students should be reminded to consider their readers' needs, and to build a case using facts and logic rather than unethical methods.
Organizing to Create a Positive Response
It is not only the variety and amount of information that is critical in a communication, but also the way in which readers process that information. As a persuasive writer, you must carefully choose the organizational pattern which best suits your purpose. You must also ensure that all the parts of your persuasive piece fit together tightly.
Direct Pattern of Organization
In a direct pattern of organization, the writer's main point is stated first. Evidence and other related information are given afterwards. For example, if a writer is recommending that a company make a particular purchase, he or she would begin with the recommendation, and present the arguments in favour of the purchase.
The direct organizational pattern works well when your readers' initial response is all important (e.g., you have worked out a solution to a problem, or you have good news). The direct pattern also works well when you are recommending a course of action, or presenting an analysis which you expect your readers to view favourably.
Indirect Pattern of Organization
An indirect pattern of organization postpones the "bottom line" statement until all the evidence and related information have been presented. You would first discuss the situation; then, make your recommendations after presenting your arguments. By using an indirect pattern, the writer can prepare readers for the recommendations about to be made (e.g., by discussing goals and strategies beforehand). The indirect pattern is particularly useful when you are conveying information which your readers might view as threatening. The indirect pattern avoids the risk of inciting readers' initial negative reactions. However, it can frustrate the reader who wants to know the "bottom line" first.
Choosing an Appropriate Voice
The voice you choose to write in is an important element of your persuasive strategy; it represents both the role you assign yourself and the role you assign your readers. For example, if you intend to write for your peers, but you assume the voice of a superior authority, your readers may resent their implied role as inferiors. If your audience responds to your voice in a negative way, it will not receive your message openly.
Establishing Your Credibility
Your credibility is the belief your readers have regarding whether you are a good source of information and ideas. When people believe you are credible, they are more likely to accept the things you say. If people do not find you credible, they may refuse to consider your ideas seriously, no matter how soundly you present your case.
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