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A Three-Strikes Fix Isn't Dead

November 07, 2004

Proposition 66's defeat should not represent the end of efforts to correct the injustices in California's three- strikes law, but a start. Gov. Arnold Schwarzenegger's eleventh-hour fear-mongering dramatically spun voters against the measure. But Wednesday, the governor signaled that he might be open to making the narrow fixes this broad-brush sentencing law needs. Should he act, it will be the first display of leadership after a decade of demagoguery over this law.

Two dozen states and the federal government have passed "three strikes and you're out" laws, but only in California can any felony, even a petty theft, trigger a 25-year-to-life sentence. Everyone has heard the stories -- of the guy who swiped a slice of pizza and the father who pinched diapers for his kids. Of California's 7,300 third-strikers, 4,200 are like these lifers, put away for relatively minor offenses. Their "three hots and a cot" cost taxpayers $31,000 a year each.

Proposition 66 would have brought California law into line with other states, reserving the harshest punishment for repeat criminals whose third felony was a violent or serious one. Polls found that most Californians saw that as fair and cost-effective -- until the governor took to the airwaves.

The measure also directed judges to resentence third-strikers whose felonies would no longer automatically justify life behind bars. Some who had already served years for nonserious or nonviolent crimes would probably have been released. That would have been appropriate. Less defensible, as this editorial page noted, was the proposition's redefinition of felonies considered a third strike. Burglary and arson, under some circumstances, would no longer have been serious enough for the maximum penalty. District attorneys persuaded the governor that these changes made the measure too lenient.

In late photo ops and TV ads, Schwarzenegger marshaled former governors -- Democrats and Republicans -- who feverishly insisted that if Proposition 66 passed, the prison doors would swing open, flooding the streets with killers. Those bipartisan but distorted appeals scared voters, and the measure tanked, losing 53% to 47%.

In the wake of its defeat, Schwarzenegger seems to realize that the status quo is no good either, and has promised to confer with the attorney general and lawmakers to "see if there's anything that ought to be adjusted."

That's more than Pete Wilson or Gray Davis did even as the law's inequities became obvious. Schwarzenegger should follow through now.

By putting his considerable clout behind positive change, instead of more scare tactics, the governor could push timid legislators to pass the modest trims that would finally bring fairness to this harsh law.

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