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October 24, 2004 - The New York Times

California Rethinking '3-Strikes' Sentencing

By Dean E. Murphy

Return to Drug War News: Don't Miss Archive

SAN FRANCISCO - Public outrage over the murder of Polly Klaas, a 12-year-old who had been kidnapped from her bedroom by a man who had repeatedly committed violent crimes, was the driving force behind California's passage 10 years ago of the country's harshest "three strikes" sentencing law.

Now the Klaas family is at the center of an election battle over an initiative that would significantly scale back parts of the 1994 law. This time, Polly's father and grandfather are on opposite sides of an impassioned campaign that criminal justice experts say reflects a broad rethinking of the nation's tough-on-crime legislation of a decade ago.

"The politics of crime and punishment has calmed down," said Franklin Zimring, a law professor at the University of California, Berkeley, and author of a book about the three-strikes law. "It isn't that people are less punitive; they are less concerned."

One of the most significant changes proposed in the ballot measure, known as Proposition 66, would put California more in line with the 24 other states that have three-strikes laws. The change would restrict so-called third-strike offenses for repeated felons, which require a 25-year-to-life sentence, to serious or violent crimes.

Currently, even crimes not defined as serious or violent can count as a third strike, leading to instances in which multiple offenders have received the maximum penalty for committing crimes like shoplifting or possessing small amounts of narcotics. Last year, the United States Supreme Court rejected constitutional challenges to sentences of 25 years without parole for a man who stole three golf clubs from a pro shop and 50 years without parole for another man for stealing children's videotapes from a Kmart store.

The changes proposed in Proposition 66 infuriate Polly Klaas's father, Marc Klaas, founder of the KlaasKids Foundation, a nonprofit group that focuses on crimes against children. He appears in a television advertisement, expected to be broadcast next week, which features a rape victim worrying about her rapist's going free under Proposition 66.

"I don't want my family legacy to have anything to do with this," Mr. Klaas said in a telephone interview. He said he was so angry about his father's involvement on the proponents' side that he forbade him from using Polly's name in the campaign.

"For them to use this, our family tragedy, for their own political agenda is just terribly unfair," he said. "I think my father has made a huge mistake here. I don't know. It may even be an unforgivable mistake here, quite frankly. I just can't believe my father is allowing himself to be the token victim in this."

His father, Joe Klaas, 84, said the proposed revisions were long overdue and in the interest of justice. While honoring his son's request not to invoke his granddaughter's name, Joe Klaas has emerged as the most listened-to proponent of the ballot measure, in large part because of his family's suffering from Polly's kidnapping and murder in 1993. A campaign official described him as a "stud grandpa" who has been tirelessly flying across the state.

"The three-strikes law needs fixing," the elder Mr. Klaas said. "Everybody thought they were voting to put violent criminals away. It has taken 10 years to get the word out and educate the public."

The Klaas family schism mirrors a philosophical divide across California over the three-strikes law as an array of liberal advocacy and criminal justice groups, backed by money from people like George Soros, clash with law enforcement officials, the measure's main opponents.

Mr. Soros, the philanthropist and financier, has contributed $150,000 to the campaign, as have both Peter B. Lewis, chairman of the Progressive Corporation insurance company, and John G. Sperling, founder of the University of Phoenix. The three also supported a successful ballot measure in 2000, which requires many nonviolent drug offenders to be sent into treatment instead of prison.

The biggest donor has been a Sacramento businessman, Jerry Keenan, who contributed $1.9 million toward the signature-gathering effort and $800,000 toward the initiative's passage, according to campaign finance reports. Mr. Keenan's son, Richard, is serving an eight-year prison term for vehicular manslaughter stemming from the deaths of two of his passengers when he crashed his car in 1999 after drinking beer and smoking marijuana. Though application of the law to his case is complicated, it is possible Richard Keenan's sentence would be reduced if Proposition 66 passes.

On the other side, Gov. Arnold Schwarzenegger, Attorney General Bill Lockyer and every district attorney in the state have lined up in defense of the existing statute. The politically influential correctional officers' union also backs the law, having donated $150,000 to the cause.

Opponents argue that the law has contributed to the steep decline in crime across the state since 1994. Though prosecutors have the discretion to invoke the law, they say they need that option to lock up dangerous criminals, even those caught for relatively minor crimes. The law has been applied sporadically and unevenly, with some counties, like San Francisco, virtually ignoring it, and others, like Fresno County, relying more heavily upon it, but none of the state's 58 district attorneys want to forfeit it.

In a campaign appearance on Wednesday, Mr. Schwarzenegger said Proposition 66 "is a danger to public safety and it threatens our neighborhoods." In a Republican Party voting guide mailed this week, defeating Proposition 66 was listed as one of Mr. Schwarzenegger's top election priorities.

But even with the popular governor against it, opinion polls show passage of the measure leading among likely voters of both parties. A Field Poll early this month indicated the measure was comfortably ahead, with the support of 65 percent of likely voters. A recent Los Angeles Times poll put support at 3 to 1.

Professor Zimring said the surveys pointed to a remarkable shift in public perceptions about a law that only a few years ago was considered politically off limits. Though critics have long argued the law was flawed, too costly and overreaching, tinkering with it in the crime-sensitive 1990's was out of the question.

"Any two-sided debate about three strikes is a real novelty in California," Professor Zimring said. "The fact that we are having this kind of conversation is already evidence of an enormous sea change in criminal justice."

While most attention in the Proposition 66 campaign has focused on so-called third-strikers - the felons convicted of a third offense - data compiled by the Policy and Evaluation Division of the Department of Corrections show the 1994 law has had a greater impact on second-strike offenders.

The law doubled the sentences of second-strikers and made it more difficult for them to qualify for parole. The data show that of the 42,920 inmates serving sentences under the three-strikes law as of June 30, 35,462 were second-strikers.

Proposition 66 would make life easier for some of the second-strikers. The requirement that third-strike offenses be serious or violent felonies would also apply to second-strike offenses. The measure would reduce the number of felonies considered as violent or serious. Taken off the list would be crimes like burglary of an unoccupied residence and taking part in felonies committed by a criminal street gang.

Mr. Schwarzenegger and other opponents of the measure have focused on a provision that would apply the law retroactively to prisoners serving an indeterminate life sentence for crimes that were not violent or serious. Proponents estimate passage of the measure would lead to the reconsideration of 4,000 or so sentences, while opponents suggest as many as 26,000 prisoners, including many convicted on second strikes, could be eligible for early release.

Marc Klaas calls the retroactive provision a "get-out-of-jail-free card" for some of the state's most hardened criminals. He said many residents feared that released criminals could strike again.

"Each one of these fellows is going to move next door to somebody," he said. "My father lives in a gated community. None of these guys are going to end up next to him. But I don't live in a gated community and most people don't."

The elder Mr. Klaas said opponents were using scare tactics by raising the specter of criminals on the loose.

"I am not worried about one of them moving in next to him," Joe Klaas said of his son, "because all along we have been talking about nonviolent offenders."

Copyright 2004 The New York Times Company

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