Negotiating Three Strikes

When an ebullient Governor Arnold Schwarzenegger held a Nov. 3 news conference to comment on the elections and all the ballot initiatives that his star power had helped make and break, among the broken was Proposition 66, the initiative to reform California's Three Strikes law.

The measure was defeated handily, 53 percent to 47 percent, when it had once looked like an easy winner. The reform measure enjoyed a 41-point lead in some polls until the governor took a last-minute central role in crushing it. For one thing, he pulled in former Governor Pete Wilson, who wrangled an Orange County billionaire to pour in $1.5 million. Then the movie action-hero-turned-governor also starred in a seemingly endless loop of scare-tactic television commercials – using a configuration of "facts" so skewed that a superior court judge had ruled they couldn't be used in the official ballot arguments.

So it was a little surprising that Schwarzenegger announced at his post-election press conference an interest in changing the controversial California law, which, unlike any other in the country, counts any felony – not merely those considered by law to be serious or violent – as a third strike requiring a 25-to-life sentence.

"I'm going to have conversations with Attorney General Bill Lockyer and you know, with the legislators," the governor declared to the assembled press corps, promising to "look into the Three Strikes system and see if there is anything that ought to be adjusted." And indeed, last week a spokesman for the attorney general's office confirmed that initial conversations between the offices of Lockyer and Schwarzenegger had begun.

But the attorney general's spokesman was emphatic about just how preliminary the discussion has been thus far. It's just one indication of just how difficult it may be to get Three Strikes legislation "adjusted," as the governor puts it. Any changes – from tinkering to turning the statute upside-down – must again go on the ballot, because Three Strikes was initially passed as a statutory initiative.

"That presents a unique sort of problem," said Nathan Barankin, Lockyer's communications director. "The legislature can't just pass a bill the governor signs. Any changes would have to be ratified by the people."

But even getting reform through the legislature – the first step toward the ballot – could be tricky, given how gun-shy politicos are about being seen as weak about crime. Assemblywoman Jackie Goldberg has carried reform legislation that tracks closely with Proposition 66 reforms for several sessions now, and each time the bill has been killed by inaction. Legislative timidity was doubtless ratcheted up by the results of the election and the way it has increased Schwarzenegger's political influence.

Despite fear-mongering by the opposition, Proposition 66 would not have flung open prison doors for child molesters and thugs, as the Schwarzenegger commercials warned. The initiative would have amended the law so that the third strike had to be a violent or serious felony – averting injustice in the future, as supporters saw it.

Another reform crucial to those already incarcerated: Proposition 66 would have permitted third strikers an appeal process that could enable them to be tried for the crime that constituted the third strike instead of receiving an automatic life sentence on strike three. "You'd go back to the same court, and it's set aside as a strike, and the person can be sentenced for the real thing," Goldberg explained in a phone interview. "It could be a third strike, or not," depending on the crime.

This last detail – providing a chance at a new trial and reduced or altered sentence for those already doing 25-to-life under the Three Strikes law – is non-negotiable for Families to Amend California's Three Strikes, or FACTS. "There's no way we can support anything that doesn't include retroactivity," said Geri Silva, FACTS's executive director.