Prop 36: Amending California’s “Three Strikes” Law

Adjusting sentencing guidelines under three strikes will help alleviate prison overcrowding and help California’s budget.

In 1994, California voters approved a law that was rather revolutionary in its time……as Californians are wont to do.  We’re trendsetters in that way.  The purpose of the “three strikes” law was a noble one:  Deter violent crime—particularly from repeat offenders—by making each subsequent conviction even more costly.

According to the California Legislative Analyst’s Office, under the original 1994 law, a felon with two prior serious or violent convictions who is subsequently convicted of a third—his or her “third strike”—would be subject to a mandatory sentence of 25 years to life imprisonment.  Even a second strike conviction would carry a sentence that is double the term that would otherwise be required by law.

Three strikes was a law that was intended to take violent offenders off of California’s streets.  As the LAO’s report puts it, it was intended to reduce crime in two ways:

First, extended sentences, also referred to as sentence enhancements, would remove repeat felons from society for longer periods of time, thereby restricting their ability to commit additional crimes. Second, the threat of such long sentences would discourage some offenders from committing new crimes.

A person with two violent or serious prior convictions could be sent to prison for the rest of his or her life for a third offense considered by the State to be a non-serious or non-violent crime, such as receiving stolen property or drug possession.

The law itself has become a political football of sorts, being touted by Conservatives as necessary in order to show felons just exactly how tough California is on crime.  For many moderates and liberals it has become an example of a corrections system run amok, doling out life sentences for relatively minor offenses and costing the state tens, even hundreds of millions of dollars each year that could be spent more effectively elsewhere.  Many argue that three strikes has led to the financial ruin of California.

Source: LAO

The effectiveness of three strikes can be debated from here ‘til eternity.  It’s easy to find multiple studies that tell us how ineffective the law has been in deterring crime, and just as easy to find just as many studies that say what a smashing success three strikes has been.  The one thing we can be absolutely certain of is that three strikes has led to the massive overcrowding of California’s prison system, placing an enormous financial burden on the state.

In May, 2011, the United States Supreme Court ordered California to reduce its prison population by 33,000 inmates from 143,000 to 110,000, still well over the designed capacity of 80,000.  The lawsuit that led to the court’s decision alleged that the severe overcrowding led to conditions—particularly relating to medical care and treatment—that amounted to cruel and unusual punishment, a violation of the inmate’s rights under the eighth amendment.  The Supreme Court obviously agreed.  The state has two years to comply with the ruling.

According to another Legislative Analyst’s report, in 2009 the cost of housing one person in the California prison system came to over $47,000 per year.  Multiply that by the 143,000 prisoners in the system and you get a taxpayer expenditure of $6.7 billion per year on the prison system.  The prison realignment being instituted by Governor Jerry Brown and the California Legislature as a result of the ruling calls for lower level offenders—those with sentences of three years or less—to be transferred to local or county jails in the jurisdiction responsible for their prosecution in the first place.

That will alleviate some of the overcrowding in the prisons, and save the state some money.  Current law places a cap on the amount of money the state will reimburse local authorities for the incarceration of inmates at $77.17 per day, a total of just over $28,000 per year.  That will save the state a sizeable chunk of change, but since the cost of housing inmates varies in California from county to county, it has the potential to blow up some local budgets.

Source: LAO

There can be no argument that three strikes has been hugely responsible for the sharp rise in the prison inmate population since 1994.  The LAO found that as of 2004, “strikers” (those serving time in prison for either their second or third strike) made up 26% of the total prison population in California.  That’s 43,000 inmates as of December 31st, 2004, that were serving time under the auspices of three strikes.  Undoubtedly those jailed with either their second or third strike would have been arrested anyway, but because of three strikes, they are serving double the time or more compared to what they would normally serve under the law.

In this light, sentencing a petty thief or an addict convicted of drug possession to life imprisonment seems fairly ludicrous and fantastically expensive for the State of California.

Prop 36 proposes to make changes to, but not do away with, California’s current three strikes law.  Prop 36 changes the sentencing guidelines for third strike offenders.  No longer will a third striker receive a mandatory 25 years to life sentence.  Instead, a third striker convicted of a non-violent, non-serious offense would receive a sentence that is double that normally required by law (similar to a second strike offense).  For example, an offense that would normally carry a two year sentence would automatically morph into a four year sentence.  Violent or sexual third strike felonies would still carry the mandatory 25-to-life sentence.  That would include some drug and gun related felonies.

Prop 36 also allows for the resentencing of current inmates serving time for a non-violent, non-serious third strike.  It doesn’t guarantee their release, but it does guarantee that a court would consider a resentencing should the inmate meet certain criteria.  Lots of things to consider, including prior offenses, behavior while in prison, participation in rehab programs, etc.  Current third strikers (those currently serving prison terms for a third strike) would still be required to serve twice the amount of time normally called for before they could be considered for release.

Overall Prop 36 would help California in two ways:  It would reduce the prison population, thus reducing the overcrowding and help the state comply with the Supreme Court ruling.  It would also save the state, according to the LAO, between $70 million and $90 million per year over the next two decades.  But at the same time it does nothing to diminish how seriously California and its residents treat and react to serious criminal offenses.  Violent offenders will be treated no differently than they would have been prior to Prop 36, should it be passed by the voters.

California instituted three strikes with the best of intentions.  But as they say, “the best laid plans of mice and men often go awry.”  California’s three strikes law has gone horribly awry, and is in desperate need of a makeover.  Prop 36 is a fair and reasonable way to deal with serious criminals.  A life sentence for a relatively minor offense is ridiculous, and it’s costing Californians tens of millions of dollars.  Prop 36 still treats criminals with a firm hand, yet it will alleviate some of the heavy financial burden the state currently faces.  California voters should vote “yes” on 36.

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Andy Cohen

Andy spent 15 years working in the highest levels of the San Diego professional sports world, including both the Padres and the Chargers. He began his foray into writing while a volunteer for Francine Busby's 2010 Congressional campaign, eventually becoming a contributor to the now defunct SDNN. He has reported on local and national politics for both the OB Rag and the San Diego Free Press. When not reporting news and events, he offers political and policy commentary from a liberal perspective, occasionally turning back to his sports roots. While he does not hide his more liberal political bent, Andy always strives for fairness in the telling of a story.


  1. avatarbob dorn says

    Seems like the takeaway is, “third strike” prisoners serving out 25 years to life for non-violent crimes will have their sentences reduced and be sent back to their counties for jailing during that reduced term. Given that a hard-right majority in the US Supreme Court has ordered the state to do something to lower its expenses and relieve jail crowding this might only be a first step in slowing down the growth of the Imprisonment Culture, and scaring away the for-profit prison corporations.

    • avatarAndy Cohen says

      I dunno about the effect being having third strikers sent back to their locale of conviction. As I pointed out, only those convicted of minor offenses and serving short prison terms (two to three years or less) will be held in local jails for the entirety of their sentence. Since a third strike under Prop 36 will carry a mandatory double sentence, it’s unlikely that many of them will be remanded to the local level. The prison realignment plan really has nothing to do with three strikes. Prop 36 is being presented in addition to the state’s realignment plan, which will remain in place whether 36 passes or not. It’s my point of view, however, that 36 can only help the current situation.

  2. avatarFrank Courser says

    Three Strikes reform is a welcome sign of relief for California taxpayers that have seen prison spending explode over the last three decades,growing from 400 million in 1980 to 10.6 billion in 2008. About 25% of the prison population are strikers both 2nd and 3rd,roughly 40,000 inmates all serving either double the sentence or 25 years to life.California’s version is the toughest in the nation,so tough we incarcerate 4 times as many people than all the other Three Strike states combined. DA’s in certain counties,not all, tripped over one another to use this new power resulting in some very draconian sentences,690 people serving life for simple drug possession,385 got life for shoplifting,another 181 for receiving stolen property. Prop 36 will bring back some sane proportionality to sentencing by only allowing a life sentence if the third strike is serious or violent and allowing those without a violent past such as murder,rape or child molestation a re-sentencing hearing. It will save California $100 million dollars each year and help reduce prison overcrowding that became so bad ,the federal courts had to step in and order a reduction. Prop 36 will save us money without compromising public safety. I support a YES vote on 36

  3. avatar says

    No on 36

    It is a scam, fraud, swindle. For instance, Prop. 36 would not release Santos Reyes early from his 26-year to life sentence for cheating on a driving test.

    The main money source (1 million so far) for this proposition comes from a Stanford Law professor. It is my opinion that he is trying to attach his name to “Three Strikes” for future political aspirations. If you look carefully at Prop 36 it throws some 3 strikers under the bus, just to get a amended 3 strikes pass the voters. Shameful! If you’re not going to do it right, don’t do it at all.

    I am a prison reform activist who has decided to remain homeless until we get real prison reform. By that, I mean effort towards more rehabilitation services on the outside as well as a better effort to release those who do not belong behind bars.

    • avatarFrank Courser says

      So Allen is suggesting we should continue on spending billions on Three Strikes inmates who committed petty crimes such as Drug possession,shoplifting and receiving stolen property? Allen thinks almost 4,000 people should remain in prison until voters agree with his version to amend or abolish the law? No Allen,it is not perfect and many non violent offenders will remain in prison, But until you raise the funds, file an initiative,gain the needed endorsements and educate the public about your plan, I fear you will be homeless for some time. At least this is a first step in the right direction! Many Thanks to Professor Mills and those at Stanford who are making this happen! Yes on 36 ,it’s the right thing to do!

    • avatar says

      You are massively uninformed about the Prop 36 initiative and how it will positively impact the current incarcerated population and the overall state budget. Prop 36 directly addresses non violent third strike cases, and they still require judicial review. Obviously, you have never had interaction with those that have been dealt with a huge injustice in our courts. I have interaction with men impacted by this law every week, and these men should be given proper consideration, and not be subjected to unreasonable penalties.

      • avatarallen Jones says

        Do the math. Prop. 36 says that it will reduce the prison cost by “$100 million per…” IF 3000 prisoners are given a chance at the beginning of the passsage of this proposition and the cost to house these prisoners is currently about $156 million for all of the 3000, Prop. 36 supporters are suggestting that the judges who agreed to send these 3000 to prison are going to just sign off on 2000? Yeah right! What about the other 5000 petty convictions and let’s not forget the second strikers who are also caught up in this mess.

  4. avatar says

    Nice try Frank. But quit inflating the numbers. On my website, I have a link to FACTS and they state that up to 3000 prisoners will have a “Chance” to go back to court and allow a judge rule on whether they should be released.

    In addition, I do have a better plan where YOU get to say who is released. It is called California Clemency Boards and I promise to have it funded by me who has no political asperations in 2014. If I am wrong and Prop. 36 does pass and Santos Reyes is released from prison under Prop. 36, who knows I might be your next neighbor because I will end my protest. And still spend millions to get my idea before the voters.

    Stay tuned!

  5. avatarJulie Lifshay says

    Mr. Jones,
    In reading about Mr. Reyes’ case on Wikipedia, it says “Reyes qualified for a Three Strikes enhancement because of two prior convictions: one for residential burglary as a juvenile in 1981, and a second for armed robbery in 1987.” If these were is only two prior strikes, he would be eligible for re-sentencing if Prop 36 passes.

    What is your issue then?

    Thank you,


  6. avatarJEC says

    There is evidence that 3-strikes helped create the largest prison system in the world, the California Department of Corrections (sic). There is evidence budget cuts compromised the integrity of the department giving inmates incredible control, turning the idea of corrections on its head. What would happen if each criminal law came with an invoice assessing the taxpayers the cost of the law, payable every year, forever? Prop 36 isn’t perfect, but it’s better than nothing.

  7. avatar says

    July my issue is that Prop. 36 would allow a person like Reyes to go back to a judge. If that judge is in Riverside I have a problem with that. If it is in another county it is still not a guarantee that he would be released. Of course I am following this case because if he is released, I will stop living in my truck.

    I am still voting against Prop. 36 because I know this game all to well. The reason I did not support Prop 66 was because the language inserted by a lawyer of the main backer was intended to help his own son win early release. Now I do not trust the motive of a Stanford professor. If this man is smart enough to be a professor he can do better then Prop. 36. I know I can and I am uneducated.

  8. avatarJEC says

    Allen, do you think self-righteousness sells well? You sir appear to be a victim of the perfect. The only point that I can get from your statements is that Prop 36 doesn’t go far enough. My pov – After Prop 36 is passed and people relax about the results then take the next step. Remember how to eat an elephant Allen? A bite at a time. -30-

    • avatarallen Jones says

      No I do not believe “self-righteousness sells well.” That is partly why I have not bought into Prop. 36. In addition, you should search the Bayview newspaper. Look in the archives for a recent article by Death Row inmate Kevin Cooper. I am firmly against the death penalty. However, after reading what this inmate had to say on the subject, I cannot vote to end the death penalty out of respect for this death row inmate. Now if I was self-righteous I would not have changed my position on Prop. 34, which I have. I am now voting no on Prop. 34.