Oct. 3 2012 09:47 AM

Prop. 36 steps up to the plate, eight years after Prop. 66

Though Bonnie Dumanis doesn’t support Prop. 36, she says the way she applies the Three Strikes law is similar to what’s proposed in the ballot measure.
Photo by Kelly Davis

It's a case study in powerful campaign advertising: Against a black backdrop, wearing a dark suit, Arnold Schwarzenegger walks by mug shots of guys you wouldn't want to meet in a dark alley.

"Murderers, rapists, child molesters," he says. "Twenty-six-thousand dangerous criminals will be released from prison under Proposition 66."

The 15-second ad aired in late October of 2004, part of an 11th-hour radio-and-TV campaign to kill the ballot measure that sought to amend California's Three Strikes law.

"They'd figure out weird ways to buy 10- or 15-second ads because all the ads were purchased," says Joe Mathews, a former Los Angeles Times reporter who wrote an election post-mortem about Prop. 66's remarkable defeat. In just two weeks, it went from having the support of 65 percent of likely voters, an Oct. 13 Field Poll showed, to losing by six points.

As Mathews and others reported, it was wealthy Southern California businessman and Schwarzenegger backer Henry Nicholas who fueled the fight, spending more than $3.5 million the week before the election to defeat the measure. His money allowed the No on 66 campaign to buy TV and radio ads for the first time. Nicholas sought to give the ads appeal beyond conservative voters by enlisting help from friends in hard-rock bands Korn and Orgy. Most powerful, though, was the specter of a horde of criminals being released into the streets. Though the claim had been called "patently false" by a Sacramento judge, opponents hammered away.

"The case for Three Strikes itself, which is stupid, is very powerful emotionally and very powerful politically," longtime political consultant Larry Remer says. "The case for amending Three Strikes, which is smart and persuasive, has no emotional power at all."

On Nov. 6, voters will get another chance to amend Three Strikes, with Prop. 36, though this measure's significantly different from its predecessor.

Passed by voters in 1994—fueled by the murder of Polly Klaas by repeat offender Richard Allen Davis—the law requires that anyone who's previously committed two violent or serious felonies be sentenced to 25 years to life—with no chance for parole until 25 years—for any new felony.

While other states have three-strikes laws, none are as harsh as California's. Opponents point to folks sentenced under the law who have long histories of drug addiction, like Leandro Andrade, a heroin addict who was retroactively handed his first and second strikes—for burglaries in 1983—and whose third strike was stealing $150 in video tapes from a Kmart.

"Under Three Strikes, they can't go to the parole board before 25 years, so somebody commits a burglary and is an addict—that person's there for 25 years with no hope," says Geri Silva, executive director of Families to Amend California's Three Strikes. "Or robbery, purse snatching. I'm not saying these are laudable things, but, generally, people commit these kinds of crimes because they're addicts."

Prop. 66 would've required that the third strike be a violent or serious felony and allowed anyone sentenced to life under Three Strikes to request a resentencing hearing if their third strike was nonviolent and nonserious. The initiative's proponents argued that only 4,000 inmates—not the 26,000 opponents claimed—would be eligible for reconsideration.

Prop. 36, authored by two Stanford law professors, is far narrower: An offender with two strikes whose third crime is a nonserious, nonviolent felony would receive a prison sentence twice the usual term for that offense. If the person has certain drug, sex or gun crimes in his past, he wouldn't be eligible for the shorter sentence.

The Legislative Analyst's Office estimates that Prop. 36 could save between $70 million and $90 million annually in prison costs.

At an informational hearing two weeks ago with members of the Legislature's Assembly and Senate Public Safety Committees, opponents—Sacramento County Sheriff Scott Jones, Sutter County District Attorney Carl Adams and Mike Reynolds, who authored the Three Strikes law—argued that if passed, Prop. 36 would tie up courts with re-hearings and compromise public safety. Someone who commits multiple crimes, Adams argued, is bound to commit more.

"The issue in Prop. 36 is not sentencing someone for their most recent criminal activity," he said. "The issue in Prop. 36 is sentencing someone for their history of serious criminal activity. It is, if I may use the phrase, a lifetime-achievement award."

According to the most recent campaign-finance reports, No on 36 has raised only $100,000—from one source, the Peace Officers Research Association of California. Yes on 36 has raised just over $2.3 million, nearly all of it from liberal philanthropist George Soros and Stanford University Professor David Mills. The campaign spent roughly $1.5 million on signature-gathering to put the measure on the ballot.

Aside from the legislative hearing, there's been very little public debate on the measure, and both sides have been relatively quiet.

According to an L.A. Times poll, 66 percent of likely voters favor the measure and 20 percent oppose it.

Mathews says that reminds him of Prop. 66.

"Assuming no Henry Nicholas-like figure—including maybe Henry Nicholas— jumps into this," he says, "what we're seeing with Prop. 36 is how Prop. 66 would have ended without the intervention of Nicholas and Gov. [Pete] Wilson and all those folks. I think its polling pattern is almost identical. People don't think about it; it's not a subject of big scrutiny."

Remer says that the lack of a public vetting—through ads from both sides, through debates—has the potential to leave a ballot measure vulnerable to a last-minute attack.

"I can just tell you, from all my years in campaigning and measuring public opinion on these kinds of issues, is that they're highly, highly emotional, and if the other side has any money at all to get a message out, it's going to un-do that lead. It's not fair to say that it's ahead until that happens. It's ahead because it hasn't happened yet."

Since spearheading Marsy's Law, the 2008 victim's-rights measure named after his sister, who was killed by her ex-boyfriend in 1983, Nicholas has had little involvement in politics, spending most of his time heading up his charitable foundation. In 2008, he was indicted on felony securities fraud and drug-trafficking charges. Though the charges were ultimately thrown out, the indictments were brutal, alleging that Nicholas slipped drugs into tech executives' drinks, built an underground sex lair in his Laguna Hills mansion and once smoked so much pot on his private jet that the plane's captain had to put on an oxygen mask.

CityBeat unsuccessfully attempted to contact Nicholas for this story.

Silva points out that Nicholas had vowed in 2004 to challenge any future attempts to amend Three Strikes. His name is on the opposition argument in the state's official voter guide. But, Silva says, what's there to challenge? At the legislative hearing, representatives for San Francisco District Attorney George Gascon and Los Angeles County District Attorney Steve Cooley testified in support of the law, saying it's not much different from how they currently handle three-strikes cases.

Though San Diego County District Attorney Bonnie Dumanis doesn't support Prop. 36, she says the way Cooley and Gascon approach the law isn't much different from her approach.

"We have a policy that we look at each case, like I would if I were a judge, to see what's fair and equitable."

Elsa Chen, a Santa Clara University professor of public policy who testified at the hearing, said there's inconsistency from county to county in how Three Strikes is applied. According to her research, for instance, black defendants are 76-percent more likely than white defendants to get a third strike for property crimes 

"Discretion is exercised very widely but not uniformly," Chen said. "Prop. 36 would increase consistency by leaving far less room for variation in the application of the third-strike sentence."

"I think [opponents'] arguments carry such very little weight," Silva says. "Now we have even more statistics on our side to show that… we haven't had an increase in violent crime with these policies [like Prop. 36]…. Prop. 36 is Cooley's policy in L.A. So, all it would do would be to take his policy and write it into law." 

Email kellyd@sdcitybeat.com or follow her on Twitter at @citybeatkelly.


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