Bob-bi-lu
10-14-2004, 07:48 PM
Three-strikes measure might free many more prisoners
DAVID KRAVETS
Posted on Thu, Oct. 14, 2004
Associated Press
SAN FRANCISCO - Ambiguity in the text of a ballot measure that would soften the nation's toughest three-strikes law might free thousands more California prisoners than supporters have advertised.
Proposition 66 would limit "strikes" to violent and serious felonies - a change that also retroactively reduces the sentences of about 4,000 prisoners now serving mandatory life terms after nonviolent or less-serious third strikes.
The measure has the support of nearly two-thirds of likely voters in California, with solid backing from both conservatives and liberals, according to a Field Poll released Wednesday.
But what many voters might not realize is that a single phrase in the reform measure could lead to the release of 26,000 prisoners overall - almost 16 percent of the inmate population.
Supporters of the proposition say a more widespread prisoner release was not their intention - but some public defenders are already plotting to exploit the language to get their clients out of prison if the measure passes Nov. 2.
The phrase in question, appearing deep inside the 20-page measure, says sentence reductions are "not limited to" third strikers serving life terms for an offense that would no longer be considered a strike under the proposed changes.
Some legal scholars, prosecutors and defense attorneys agree that the phrase could lead to reduced sentences for more than five times as many inmates as the proponents intended.
"There's obviously ambiguity here," said Erwin Chemerinsky, a Duke University legal scholar who unsuccessfully argued to the U.S. Supreme Court that the 1994 three-strikes law produced unconstitutionally cruel and unusual sentences.
The 1994 law mandated 25-to-life sentences in most cases for offenders with two previous convictions for serious or violent felonies, even when the third felony is nonviolent or relatively minor, such as shoplifting.
The law also doubled sentences for "strike two" felonies, no matter how serious, for people with a previous serious or violent felony conviction.
California's largest group of defense attorneys - the Los Angeles County Public Defender's Office - is quietly planning to argue in court that the change also applies to second-strike convictions.
If voters approve Proposition 66, all "strikes" must be serious or violent felonies, like rape, murder, kidnapping, robbery and a number of other major crimes.
That means some third-strike prisoners will get out of jail immediately. The question supporters didn't anticipate is whether it does the same for second-strikers already serving extra time.
"You know that's going to be the focal point of the argument if and when this thing passes," said John Vacca, Los Angeles County's assistant public defender. "I think there are a variety of reasons we can and would make the argument that it applies to a second-strike case."
Based on Corrections Department data, about 4,000 third-strikers serving life terms for shoplifting, petty drug offenses, burglaries, bad-check writing and other nonviolent third strikes would be released or have their terms dramatically reduced.
Supporters say that is not the case for second-strikers already serving enhanced terms - and that anyone who claims it does is employing scare tactics.
Jim Benson, who spearheaded the drive to get Proposition 66 on the ballot, said the "not limited to" language was simply meant to ensure that when judges consider sentence reductions for third-strikers, the measure's text didn't omit any felony that would no longer count as a strike.
"If you start making all-inclusive lists, you may miss something," he said. "In a state full of lawyers, there's going to be litigation no matter what you do."
Sandy Harrison, a spokesman for the Fix Three Strikes campaign, which has raised more than $2 million to promote the measure, said the conflict is bogus and involves "boilerplate language."
"They'll lose if they challenge it," he said.
But some legal scholars see a real problem.
"Certainly, a judge is going to be troubled by blue-penciling out 'not limited to.' The words are there for a purpose, to expand the list," said Douglas Kmiec, a Pepperdine University School of Law legal scholar. "The big question is to expand the list to what?"
Proposition 66's main opponent, Attorney General Bill Lockyer, says the language clearly means Proposition 66 "affects second strikers."
"They're able to get their terms reduced," Locker said. He also said as much in California's official voter information guide, warning that 26,000 inmates are eligible for resentencing.
Would Lockyer, the state's top prosecutor, allow that to happen?
"I'm not going to talk about what argument we are going to make two years from now," he said.
The state's top sentencing expert, Chuck Nickel, a San Diego County prosecutor who writes sentencing manuals for the California District Attorney's Association, also said it applies to second strike defendants.
"I don't know a persuasive argument on the other side," he said. "I believe that two strikers and three strikers will be equally included."
The state's nonpartisan offices of the Legislative Analyst and Legislative Counsel, however, dispute that.
The Legislative Analyst tells the electorate in the voter pamphlet that the public would save hundreds of millions of dollars in prison costs, and that only those serving at least a 25-to-life term for a third strike that would no longer count as a strike are eligible for a sentence reduction.
Brian Brown, who studied the measure for the Legislative Analyst to reach that conclusion, said Proposition 66, "as we read it, seems fairly clear that only third strikers are eligible."
---
Editors: David Kravets has been covering state and federal courts for more than a decade.
DAVID KRAVETS
Posted on Thu, Oct. 14, 2004
Associated Press
SAN FRANCISCO - Ambiguity in the text of a ballot measure that would soften the nation's toughest three-strikes law might free thousands more California prisoners than supporters have advertised.
Proposition 66 would limit "strikes" to violent and serious felonies - a change that also retroactively reduces the sentences of about 4,000 prisoners now serving mandatory life terms after nonviolent or less-serious third strikes.
The measure has the support of nearly two-thirds of likely voters in California, with solid backing from both conservatives and liberals, according to a Field Poll released Wednesday.
But what many voters might not realize is that a single phrase in the reform measure could lead to the release of 26,000 prisoners overall - almost 16 percent of the inmate population.
Supporters of the proposition say a more widespread prisoner release was not their intention - but some public defenders are already plotting to exploit the language to get their clients out of prison if the measure passes Nov. 2.
The phrase in question, appearing deep inside the 20-page measure, says sentence reductions are "not limited to" third strikers serving life terms for an offense that would no longer be considered a strike under the proposed changes.
Some legal scholars, prosecutors and defense attorneys agree that the phrase could lead to reduced sentences for more than five times as many inmates as the proponents intended.
"There's obviously ambiguity here," said Erwin Chemerinsky, a Duke University legal scholar who unsuccessfully argued to the U.S. Supreme Court that the 1994 three-strikes law produced unconstitutionally cruel and unusual sentences.
The 1994 law mandated 25-to-life sentences in most cases for offenders with two previous convictions for serious or violent felonies, even when the third felony is nonviolent or relatively minor, such as shoplifting.
The law also doubled sentences for "strike two" felonies, no matter how serious, for people with a previous serious or violent felony conviction.
California's largest group of defense attorneys - the Los Angeles County Public Defender's Office - is quietly planning to argue in court that the change also applies to second-strike convictions.
If voters approve Proposition 66, all "strikes" must be serious or violent felonies, like rape, murder, kidnapping, robbery and a number of other major crimes.
That means some third-strike prisoners will get out of jail immediately. The question supporters didn't anticipate is whether it does the same for second-strikers already serving extra time.
"You know that's going to be the focal point of the argument if and when this thing passes," said John Vacca, Los Angeles County's assistant public defender. "I think there are a variety of reasons we can and would make the argument that it applies to a second-strike case."
Based on Corrections Department data, about 4,000 third-strikers serving life terms for shoplifting, petty drug offenses, burglaries, bad-check writing and other nonviolent third strikes would be released or have their terms dramatically reduced.
Supporters say that is not the case for second-strikers already serving enhanced terms - and that anyone who claims it does is employing scare tactics.
Jim Benson, who spearheaded the drive to get Proposition 66 on the ballot, said the "not limited to" language was simply meant to ensure that when judges consider sentence reductions for third-strikers, the measure's text didn't omit any felony that would no longer count as a strike.
"If you start making all-inclusive lists, you may miss something," he said. "In a state full of lawyers, there's going to be litigation no matter what you do."
Sandy Harrison, a spokesman for the Fix Three Strikes campaign, which has raised more than $2 million to promote the measure, said the conflict is bogus and involves "boilerplate language."
"They'll lose if they challenge it," he said.
But some legal scholars see a real problem.
"Certainly, a judge is going to be troubled by blue-penciling out 'not limited to.' The words are there for a purpose, to expand the list," said Douglas Kmiec, a Pepperdine University School of Law legal scholar. "The big question is to expand the list to what?"
Proposition 66's main opponent, Attorney General Bill Lockyer, says the language clearly means Proposition 66 "affects second strikers."
"They're able to get their terms reduced," Locker said. He also said as much in California's official voter information guide, warning that 26,000 inmates are eligible for resentencing.
Would Lockyer, the state's top prosecutor, allow that to happen?
"I'm not going to talk about what argument we are going to make two years from now," he said.
The state's top sentencing expert, Chuck Nickel, a San Diego County prosecutor who writes sentencing manuals for the California District Attorney's Association, also said it applies to second strike defendants.
"I don't know a persuasive argument on the other side," he said. "I believe that two strikers and three strikers will be equally included."
The state's nonpartisan offices of the Legislative Analyst and Legislative Counsel, however, dispute that.
The Legislative Analyst tells the electorate in the voter pamphlet that the public would save hundreds of millions of dollars in prison costs, and that only those serving at least a 25-to-life term for a third strike that would no longer count as a strike are eligible for a sentence reduction.
Brian Brown, who studied the measure for the Legislative Analyst to reach that conclusion, said Proposition 66, "as we read it, seems fairly clear that only third strikers are eligible."
---
Editors: David Kravets has been covering state and federal courts for more than a decade.