In 1998, Bernice Cubie got caught with $10 worth of cocaine. Since it was her third offense, although she had never hurt anyone, she was sentenced to up to life in prison under California's Three Strikes law. Now 59 years old, Cubie has served more than 14 years in prison at a cost to California taxpayers of around $700,000 dollars.
Shane Taylor is another California Three Strikes lifer. He's also been behind bars since 1998, when he was convicted and sentenced to life for possession 0.14 grams of methamphetamine. His previous two convictions were for burglaries days apart in which nothing was taken but a checkbook, and police recovered that before any money was withdrawn.
The judge who sentenced Taylor now regrets that decision and speaks out publicly in favor of his release. So does the district attorney who prosecuted him under the Three Strikes law. But although he has already served 13 years in prison for little more than a tenth of a gram of meth, he won't be eligible for parole for another dozen years.
That is, unless California voters next month approve Proposition 36, a measure designed to amend the Three Strikes law so that only prisoners whose third strike was a "serious" or "violent" offense under California statute would be subject to life imprisonment. In addition to modifying future Three Strikes sentencing, the measure would also impose some retroactivity, allowing prisoners currently serving Three Strikes life sentences to seek a judicial order to reduce those sentences to no more than twice the sentence for a first offender.
Proposition 36 could save the cash-strapped state $100 million a year, according to the Legislative Analyst's Office. Between the prospect of budgetary savings and the desire to undo egregious sentences imposed on small-time, nonviolent offenders, including many drug offenders, the measure looks likely to appeal to California voters.
According to a bevy of recent polls, Proposition 36 appears to be sitting pretty. A September California Business Roundtable poll had it winning 72% to 19%, a September Los Angeles Times poll had it winning 65% to 20%, and an October Business Roundtable poll had it winning by 72% to 20% in a survey that included strong support, likely support, and leaning toward. The lone outlier was a September SurveyUSA poll that had Prop 36 with 43%, with 23% opposed and a whopping 34% undecided, but even in that poll, support for the measure was nearly double opposition.
"Things are looking pretty positive," Yes on 36 spokesman Dan Newman reluctantly conceded. "Most of the public polling has it around 70%, and people are voting now. We've built an unprecedentedly broad and deep coalition with support from law enforcement leaders, civil rights groups, the district attorneys of big cities, and fiscal conservatives like Grover Norquist."
Indeed, the campaign's list of endorsements is impressive, and includes Los Angeles Mayor Villaraigosa, Los Angeles County District Attorney Steve Cooley, and LAPD Chief Charlie Beck and former Chief Bill Bratton. Also on board are San Francisco DA George Gascoigne and Santa Clara County DA Jeff Rosen, along with several dozen other law enforcement and elected officials.
"The state should not allow the misallocation of limited penal resources by having life prison sentences for those who do not pose a serious criminal threat to society. The punishment should fit the crime," said Cooley.
Somewhat more head-turning is support from conservatives, such as Norquist and his Americans for Tax Reform. It's about the money, said Newman.
"Conservatives support this largely for fiscal reasons," he explained. "They don't like seeing us waste $100 million a year at a time of looming fiscal crisis. This is money that could be used for schools or to prevent crime."
Not everyone supports the initiative. Mike Reynolds, the author of the original Three Strikes legislation, wrote that initiative after his teenage daughter was shot and killed by a repeat offender in an attempted purse snatching in Fresno. He says that $100 million a year is a small price to pay to keep dangerous offenders locked up.
"Three Strikes passed and California's crime rate dropped in half," said Reynolds. "There is no way we should change something that has been so successful," he argued. "The reductions in crime have really saved the state an enormous amount of money and increased our quality of life. You have half the chance of being a violent crime victim than before Three Strikes."
But attributing the drop in crime in California to the Three Strikes law may be a stretch. Violent crime rates have been dropping around the country for the past two decades -- in states with and without harsh sentencing mechanisms. Criminologists are divided on the causes of the drop.
"The initiative campaign is quick to point out their support from law enforcement, but only three of 58 district attorneys, one sitting police chief, and one retired chief support it," Reynolds said. "Virtually all major agencies in the state are against this. Everything with a badge and a uniform short of the Cub Scouts is against this thing. I've never seen such a full court press."
But despite all that supposed law enforcement enmity, there has been very little opposition presence this year. That's a change from 2004, when Proposition 64, which also would have amended the Three Strikes law, looked set to pass until the final weeks, when Gov. Schwarzenegger and actor Martin Sheen helped law enforcement raise a late clamor and send the initiative down to defeat.
Reynolds' opposition to Three Strikes reform is understandable given his personal history, said Newman, but it shouldn't get in the way of smart public policy.
"I'm sorry for the unbelievably tragic loss he suffered," he said. "It's the worst thing anyone could have to go through, and I can't imagine the pain and suffering that must bring, but for folks who want to prevent serious and violent crimes in the future, the best way to do that is to ensure that law enforcement resources are focused on those dangerous and violent criminals. We are facing dual challenges of fiscal crisis and prison overcrowding," Newman continued. "We have to be smart and make some wise decisions in terms of how we deal with this. Will we release someone who recently committed a violent crime or will we release someone who got caught with a joint 30 years ago and is now in a wheelchair?"
California voters are already making their choice through early voting. We will know how they feel when the final votes are tallied on election day.