Foul Justice

“The difference in California is Three Strikes,” says Reynolds. “If the economy had anything to do with crime, crime should have been going up like a bullet during these terrible last few years.” In fact, crime has been going up in Los Angeles County; Reynolds lays that at the door of District Attorney Steve Cooley, who refuses to use the law to prosecute lesser nonviolent and drug offenses. “They’ve got criminals down there who know the D.A. doesn’t have the balls to prosecute them,” Reynolds huffs.

And as for the cost of keeping prisoners locked up, “There’s also a cost to letting them out,” says Reynolds. He estimates that Three Strikes has prevented millions of crimes from being committed, saving the state’s residents billions.

Three Strikes swept into law at a time when fear of crime was a national obsession, heated to the boiling point by the murder of Polly Klaas, a 12-year-old Petaluma girl kidnapped from her bedroom by veteran criminal Richard Allen Davis. From the first, critics have decried it as overly broad. No fewer than nine bills have been introduced in the state Assembly to moderate Three Strikes — each one killed or vetoed. The law

has also run the gauntlet in the courts. Though a federal appeals court deemed it unconstitutional, the U.S. Supreme Court overruled it, declaring last year that the 25-to-life sentences given to a man who stole nine videocassettes and another who filched three golf clubs did not constitute “cruel and unusual punishment.”

Meanwhile, however, district attorneys in San Francisco, Los Angeles and other counties — who have broad discretion as to whether to try lesser offenses as strikes — have simply stopped applying the law so much, reserving it only for more serious cases. While former Los Angeles County D.A. Gil Garcetti famously tried in 1995 to get an ex-con sent up for life for stealing a slice of pizza, his successor, Steve Cooley, has made a very public point of applying the law more selectively. In 1996, 559 people were convicted of third strikes; by 2001, under Cooley, that number had dropped to 192.

This November, California voters may get the chance to make Cooley’s de facto approach into de jure law. With the support of FACTS, the ACLU and other groups, an Orange County–based outfit called Citizens Against Violent Crime (CAVC) is gathering signatures to place on the ballot an initiative that would make only violent and specific serious crimes count as strikes. It would also allow inmates convicted of minor offenses to appeal their second- or third-strike sentences, and would boost penalties for adults who molest children.

“Our goal is not to eliminate the law but to make it balanced and fair,” says CAVC vice-chair Jim Benson, a former baseball-card-and-collectibles shop owner and onetime state Assembly candidate for Ross Perot’s Reform Party. Benson voted for Three Strikes in 1994, but says he didn’t realize what its real impact would be. “A lot of us thought we were voting for a law targeting violent, heinous criminals like Richard Allen Davis, not someone who steals a loaf of bread from a food pantry.”

With funding from a Sacramento insurance businessman, Benson says the group has already collected nearly enough signatures to guarantee it a spot on the ballot. He’s confident of victory if the measure gets to the voters: A poll commissioned by CAVC and FACTS last year found that nearly two-thirds of those surveyed supported amending Three Strikes so that it would apply only to violent felonies.

They’re not the only ones rethinking harsh sentencing statutes. Over the past three years, some half-dozen other states have either abolished or limited their own mandatory sentencing laws, primarily because they can no longer afford to keep so many people locked up in these bleak fiscal times. California has already embraced the same logic, though not yet that tactic; the state has announced plans to soften the rules of the parole system, with an eye toward lessening the number of offenders who wind up back behind bars.

Moreover, Schwarzenegger is the first governor in many years who is not beholden to the powerful state prison guards’ union. That union helped bankroll the Three Strikes initiative in the first place, and doled out millions to Governors Wilson and Davis, ensuring that neither man would ever support measures that might reduce the state’s prison population and thereby jeopardize guards’ jobs. But Schwarzenegger didn’t get a dime from them, and so might be open to reforms that they oppose. He has already shown a willingness to look a bit softer on prisoners than his predecessors; he recently allowed the parole of two aging convicted murderers, something Davis swore he would never allow.

“Davis felt vulnerable as a centrist Democrat to being called soft on crime,” says Christopher Calhoun, deputy director of public policy with the ACLU of Southern California. “Arnold may have the ‘Nixon goes to China’ cover that’s required.”

Such talk, of course, makes Mike Reynolds apoplectic. “You’re going to see a wholesale bloodbath if this passes,” he says, predicting it will mean the release of thousands of cons and the encouragement of countless criminals.