Judges should take action

The defeat last month of Proposition 66, which would have amended the “three strikes” sentencing law, shows that voters without the time or, perhaps, the inclination to become well informed can be led by the emotional appeals of a charismatic figure to vote the wrong way on a very important issue.

Voters enacted this law by initiative 10 years ago in the wake of the kidnap and murder of 12-year-old Polly Klaas. It provided that any felony, not just a violent act, could constitute the third strike that would send a defendant to prison for 25 years to life.

The law has proved too draconian because “wobblers,” misdemeanors that can be charged as felonies at the discretion of the prosecutor, too often became third strikes allowed by the judge. A good example of this injustice is petty theft, which with a prior can become a felony and thus a strike. Reformers qualified the proposition because wobblers are ruining far too many lives and costing far too much money—$33,152 per inmate per year.

Indeed, the Sentencing Project, a national, nonprofit prison advocacy group, reported earlier this year that just 35 percent of three-strikers were serving time for crimes against people. The other 65 percent had committed nonviolent drug and property crimes. The Sentencing Project forecasts 30,000 three-strike prisoners, almost a third of all inmates in California’s 33 prisons, in 20 years.

The average third-striker is now 36 years old, so our crowded prisons face a big future problem in how to deal with the costly needs of a geriatric population.

Proposition 66 sought to modify the law so that the third strike had to be a serious or violent felony. Polls showed the initiative a big winner until less than two weeks before the election, when Gov. Schwarzenegger turned his star power against it, which encouraged the wealthy and powerful prison guards union to jump into the fight.

The resulting media blitz focused on the theme that if passed the amended law would release thousands of predatory criminals, an unwarranted interpretative twist that resulted in the most dramatic voter turnaround in the state’s political history.

The state Legislature should right this grievous wrong but never will because no legislator wants to be labeled "soft on crime." If there’s to be justice, judges will need to provide it by rejecting over-zealous prosecution charges on wobblers, thus holding them to misdemeanor status. Judges, who play God daily, need to do the humane thing: come down on the defendant’s side of the justice scales whenever possible.