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October 27, 2004

Yes On 66

Proposition 66 amends California's Three Strikes Law to reduce the number and types of felonies which count as strikes.

If 66 passes, as I hope it does, pproximately 4100 convicts will be eligible for resentencing. If they are accepted, they waive double jeopardy, which means prosecutors can bring up anything in their past. Although the opponents bring up egregious examples of convicts that 'would go free', it's clear that prosecutors and judges have plenty of latitude.

Latitude is the primary reason I support 66, and it's interesting now that Federal sentencing guidelines will be under review soon. I like my judges to be individuals, not hamstrung by rules that reduce the discretion of their judgement.

The second reason I vote for 66 is as old as the concept of justice itself. Our system presumes innocence until proven guilty because of the principle that it is better to let a guilty man go free than to imprison an innocent man. If we are imprisoning harshly those who are guilty of petty crimes, then we are violating that principle of liberty. California's three strikes law is the toughest in the nation. We alone imprison 4 times as many as 21 other states who have similar laws. Prop 66 will cut that rate in half.

That's good enough for me.

Posted by mbowen at October 27, 2004 09:55 AM

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One Mind Changed on Proposition 66 from Patterico's Pontifications
If you are for Proposition 66, I have two posts for you to read. Both are by our friend and fellow Bear Flagger Cobb. For what it's worth, Cobb is a black man from Los Angeles. He is a conservative,... [Read More]

Tracked on October 30, 2004 01:51 PM


You're wrong, Cobb, on multiple levels. First, contrary to popular hype, petty offenders don't get 25 to life under the three strikes law. Only felony convictions qualify for second or third strike enhancements, and then only when the first and/or second priors are "violent" or "serious" felonies. The apocryphal story about the "pizza guy" is a lot more complicated than most people think, and in any event, he's been out of prison for years.

You say that 4,100 convicts will be released under Prop 66. That's actually the most optimistic scenario, as it assumes only third strikers will be eligible for re-sentencing. In fact, the law is so poorly drafted that it could be read to allow resentencing of second-strikers, as well, and maybe even of first strikers whose offenses are currently considered "violent" or "serious" but would not be under Prop 66's watered down definitions of the same (note that the watered down definition just "happens" to benefit inmate Richard Keenan, who is the son of major donor Jerry Keenan). So the real number of early releases, most in a matter of months, could be as high as 26,000. We just don't know.

Let's take a look at a few of the 4,100 who will definitely be eligible for early release:

  1. Charles Rothenberg, who burned his six-year old son nearly to death in 1983. His third strike is forgery/fraud.
  2. Joseph Noble, a serial child molester who admitted to getting sadistic pleasure from the pain he inflicts on small girls. His last "nonviolent" offense was exposing himself to small children on a schoolyard.
  3. Steven Mathews, who has murdered one person, kidnapped another, attempted to murder yet another, raped his own mother, and committed too many more offenses to list. His third, "nonviolent" offense? Being caught drunk with a machete and geological hammer with "fag finder reminder" inscripted on it.
  4. Andrew Abernathy, who tortured animals to death and forced his sister to play Russian Rouletee as a youth, and stabbed two people nearly to death in his early adult years. His third, "nonviolent" offense was to club, stab and decapitate his dog Marie, to get back at his ex-girlfriend of the same name.
  5. Kenneth Parnell, a serial child molester and kidnapper, whose long term kidnapping of Steven Staynor may have been a big part of the reason his victim's brother, Cary, went on to become a serial killer himself in the late 1990s. Parnell's third, "nonviolent" offense was to attempt to purchase a young boy for $500.

I don't think those people should be let out, do you? They will be, though, if this horrible initiative passes. And no, prosecutors won't have "plenty of latitude" to stop it. In most cases, they won't have any at all. They'll simply have to turn these monsters loose, wait for them to prey on someoen else, and then prosecute them all over again. Precisely the sort of "revolving door justice" Prop 184 has been so successful in curbing.

You are right that California's existing three strikes law is the toughest in the nation, but I fail to see why you assume that somehow makes it a bad thing. Crime rates dropped a good deal throughout the nation in the 1990s, but California's rate dropped faster than most, and Prop 184 was a big part of the reason. For all the things going wrong in California, why change one of the few things that's going right?

Posted by: Xrlq at October 27, 2004 02:38 PM

The legislative analyst and the judge in the case have both said that only third strikers qualify. No second strikers will be eligible for review, period. Language to that effect has been stricken from opponents campaign material by a judge.

The 4100 are eligible for sentencing review and forfeit immunity to double jeopardy which means every DA worth a dime gets to throw the book at them all over again, if they're not lazy. Nobody simply walks out of prison simply because the initiative passes. In one or two counties DAs are already preparing for the cases they may have to deal with.

If any of the lunatics and cretins you mention get out of prison, it will be the fault of the DAs for not following up. These kinds of snafus happen, just as they have happened with disbarred DAs and new DNA evidence - everybody in the courts know that the convictions of many felons might be overturned on appeal. This is the same kind of review, except no convictions will be overturned - just sentences possibly reduced.

Furthermore, the new law does not limit judges from applying harsh sentences to new crooks, it gives them more leeway. They know what they've been sentencing for the last 10 years, they're not going to suddenly forget it. But where they have the opportunity to be lenient and are not hamstrung, then they can. I trust judges that much, don't you?

Posted by: Cobb at October 27, 2004 02:51 PM

Your "period" is really a question mark. The initiative is horribly drafted, and is ambiguous as to whether second-strikers are eligible for resentencing or not. Law Professor Erwin Chemerinsky, no fan of the three strikes law himself, has acknowledged as much, as have the L.A. Public Defenders who are already drafting briefs to exploit the ambiguity that supposedly doesn't exist. If - no, when - a second striker seeks re-sentencing under Prop 66, the courts will not be bound by past pronouncements of the legislative analyst or a Superior Court judge. Only appellate decisions are binding on future cases, and this one wasn't.

I don't know why you think any D.A. would be able to prevent the early release of the five thugs I mentioned by name, or of the 4,100 to 26,000 I didn't, most of whom have three very serious felonies under their belts, and all of whom have at least two. Two of the five individuals I named, Mathews and Parnell, are also cited in the ballot argument as individuals who will inevitably be released if the intiative passes. The proponents of Prop 66 don't even attempt to rebut that claim; instead, they argued that these guys should be released because they "have served sentences for violent crimes BUT are now incarcerated for nonviolent offenses." Which is true, technically speaking, if a child molester attempting to purchase a young boy is your idea of a "nonviolent" offense.

Posted by: Xrlq at October 27, 2004 04:27 PM

I do trust judges to be appropriately lenient, when warranted. They have that flexibility now. What Prop 66 does is take away their ability NOT to be lenient.

Posted by: Xrlq at October 27, 2004 04:42 PM

If any of the lunatics and cretins you mention get out of prison, it will be the fault of the DAs for not following up.

With all due respect, Cobb, that's just flat wrong. If these individuals committed more serious crimes that were dismissed in return for a plea bargain, and if the statute of limitations has not run, then they can be retried for the more serious crimes. But in most cases, there is no more serious crime available. Someone like Mathews, who possessed a machete, cannot receive more than three years for that crime, new trial or no. And he must serve only 1/2 of that three-year sentence. This means Mathews and thousands like him will be released, with no alternatives available. You need to understand this very plainly.

This is going to sound harsh, but it's the straight truth: If these cretins get out, it's not the fault of DAs. It's your fault, and the fault of everyone else who votes for this proposition. You may decide it's worth the cost -- but don't try to blame anyone but yourself and the other pro-66 voters.

Also, don't bet the farm that 22,000 second-strikers will not get out. I agree that that is the better interpretation of the proposition -- but defense attorneys across the state are preparing briefs arguing that the very ambiguous language, which I am guessing you haven't read (I have), may apply to second-strikers. They have a decent argument. If you want to read the painful details of the argument, I took readers through it back in August.

The judge who said opponents are wrong is evidently not very smart and doesn't see the argument -- but he doesn't have the final say, Supreme Court judges do, and they'll see it. If it's ambiguous, second strikers get out. And Erwin Chemerinsky says the language is ambiguous on this point.

Furthermore, the new law does not limit judges from applying harsh sentences to new crooks, it gives them more leeway.

Wrong again. Resentencing is mandatory. What you just described is the current state of the law. Under a Cal. Supreme Court decision called Romero, every trial judge in the state has the power to review 3x sentences, and every third-striker in the state has had his sentence reviewed by a judge. If you have heard horror stories, my guess is that you don't know the facts of the criminal's history, while the judge did. So if you really trust judges, the obvious answer is a no vote.

Posted by: Patterico at October 27, 2004 04:48 PM

I don't understand how current questionable convicts under three strikes are not defacto subject to a 'second bite of the apple' as their sentences are reviewed. The principle in play is whether or not the recidivism is related to the guy's criminality. Somebody who goes from robbing banks down to robbing his neighbors is still a robber. Surely judges will see that. I also don't understand what fraction of those eligible for review are the most heinous criminals.

My assumption is that the overwhelming majority of those convicts eligible for review will have been caught in a web that ordinarily would not have been so harsh. I'm thinking that the guy who does 2 B&Es and gets caught for felony possession is typical of the crooks that get off light and for 4000 of these guys it's reasonable to let off 100 of the baddies, considering that baddies of those sorts get out of jail eventually anyway.

So let me know how many murderers and rapists get out of jail in an average year in California regardless of 3 Strikes and I'll have some perspective.

I'm going to read some details and look at more law-blogging on this one.

Posted by: Cobb at October 27, 2004 05:15 PM

Extrapolating from a Sacramento Bee study looking at 233 typical third-strike felons in detail, including many in for "petty" felonies, I calculated that the felons to be released are likely collectively responsible for over 21,000 felonies in the aggregate -- including over 5,800 robberies, over 4,700 burglaries, over 300 homicides, over 160 attempted murders, and over 1600 sexual assaults and child molestations.

Is my calculation correct? I don't know for sure. But it's not all people in for nonviolent burglaries.

Posted by: Patterico at October 28, 2004 06:59 AM

My question is: why not write a law that does what you thought this one does: let out the people who really did get screwed (there are some) while leaving judges some discretion to keep in the truly dangerous -- something this law most assuredly does not do.

That's the problem with initiatives. You gotta take 'em or leave 'em. This is a problem best fixed by the legislature with a more balanced approach.

Posted by: Patterico at October 28, 2004 07:04 AM

Posted by: Cobb at October 28, 2004 09:24 AM

Except that you don't, really. Californians who really want all three strikes to be violent or serious, but don't want to flood the streets with predators like the ones I identified above, do have a third option. Vote no on 66 now, and come back with a cleaner, better drafted amendment in a future election. It's not an either-or, except in the same sense that an up or down yea or nay vote in the Legislature is.

Posted by: Xrlq at October 28, 2004 10:58 AM

I suppose I can live with that. Again, I want legislators and judges to be more responsible and do their damned jobs. Initiatives let them hide.

Posted by: Cobb at October 28, 2004 12:53 PM

So, can we count on your "no" vote?

After all, if we can change just one person's vote -- well, we're still totally screwed. But I'd consider it progress nevertheless.

Posted by: Patterico at October 29, 2004 12:53 PM

Yes, you can count on a no vote. I recognize the difference between activity and progress. And I am, after all, conservative.

It's difficult for me to stand in opposition to all the governors, DAs and attorneys general when I have doubts, and I have doubts. I'm not afraid of the egregious cases and I think that campaign tactic just doesn't work.

I still don't know the numbers, but I'll take a pass. In fact few of the rest of the propositions have much clarity to them, though I'll review more when I have time.

I should have paid more attention earlier as I did with the elections at large issue which I'll vote down, but even reading the legislative analysis for that one is confusing.

Posted by: Cobb at October 29, 2004 01:22 PM