McGeorge School of Law

Proposition 66

Proposition 66:
Limitations on Three Strikes Law.

By Reuben Nocos

Copyright © 2004 by University of the McGeorge School of Law

JD, McGeorge School of Law, University of the Pacific
to be conferred May 2005
B.A., Criminal Justice, San Francisco State University, 2000

 

Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Issues
V. Public Policy Considerations
VI. Conclusion

I. Executive Summary

Ten years ago, California’s political atmosphere focused on the issue of violent crimes. Several publicized murders outraged the public, including the fatal shooting of Kimberly Reynolds by two career felons. Dan Morain, A Father’s Bittersweet Crusade, L.A. Times A1, (Mar. 7, 1994). In response to his daughter’s violent murder, Mike Reynolds [hereinafter Reynolds] approached the Legislature and petitioned his Assemblyman, Bill Jones, to author a bill to strengthen criminal sentencing laws. Id. at A1. After the Legislature killed his bill at the committee level, Reynolds sought another route. Id. He submitted a proposition directly to the people of California. Id. However, with no political and financial support for the voter initiative, he faced considerable challenges. Id.

In October 1993, after the kidnapping and murder of Polly Klaas by repeat felon, Richard Allen Davis, Polly’s father, Marc Klaas, and the California Prison Guards Union added their support to Proposition 184, Reynolds’ “Three Strikes” initiative. Institute of Governmental Studies, University of California, Hot Topic, Proposition 66: Limitation on “Three Strikes” Law http://www.igs.berkeley.edu/library/htThreeStrikesProp66.htm (accessed Oct. 3, 2004). Reynolds’ campaign took off and the public offered their support by providing the signatures required to put the initiative on the ballot. Morain, L.A. Times (Mar. 7, 1994) at A1. Because of rising public pressure concerning the increase in violent crimes, Assemblymen Bill Jones and Jim Costa introduced AB 971 in March 1993. Id. On March 7, 1994, Governor Pete Wilson signed the bill, which is nearly identical to Proposition 184. History of Assembly Bill 971 (Jones) http://www.leginfo.ca.gov/pub/93-94/bill/asm/ab_0951-1000/ab_971_bill_history (accessed Oct. 3, 2004).

On November 1994, the California people overwhelmingly voted for Proposition 184 and enacted the “Three Strikes” law. Cal. Prop. 184 (1994) http://holmes.uchastings.edu/ (accessed Sept. 11, 2004). Proposition 184, now codified in California Penal Code § 1170.12, requires a sentence enhancement that doubles the punishment for a convicted felon’s second felony conviction. Cal. Penal Code Ann. § 1170.12 (West 2004). The sister provision to Proposition 184 passed by the Legislature amended California Penal Code section 667. Cal. Penal Code Ann. § 667 (West 1999). The current law imposes longer prison sentences for an offender who had prior convictions for crimes classified as either serious or violent. Legislative Analyst’s Office, Fiscal Analysis of The Three Strikes and Child Protection Act of 2004 http://www.lao.ca.gov/ballot/2003/030952.htm (accessed Oct. 3, 2004). A person who committed one prior violent or serious offense (the “first strike”) and who committed any new felony could receive twice the normal prison term for the new felony (the “second strike”). Cal. Penal Code Ann. §§ 667(e)(1) (West 1999) and 1170.12(c)(1) (West 2004). A person who committed two or more prior violent or serious felonies (a “second-striker”) and then committed any new felony (the “third strike”) would automatically receive an indeterminate sentence of twenty-five years to life in prison. Id. at §§ 667(e)(2)(A) and 1170.12(c)(2)(A).

After the proposition became law, defendants challenged their third-strike sentences in California and federal courts. Michael Vitiello, California’s Three Strikes Law and We’re Out: Was Judicial Activism California’s Best Hope?, 37 U.C. Davis L. Rev. 1025, 1053 (2004). Defendants alleged that their three strikes sentences violated the California and the U.S. Constitution’s prohibition against cruel and unusual punishment. Id. at 1054. However, the California Supreme Court and state appellate courts have held that the law does not violate the state constitution. Id. Similarly, the U.S. Supreme Court rejected claims that the law violates the U.S. Constitution. Id. at 1058. In fact, both the U.S. Supreme Court and California Supreme Court have said that successful challenges to prison sentences under the law will be exceedingly rare. Id.

Several debates surrounding the issue of increased prison costs and inmate populations have surfaced since the passage of the “Three Strikes” law. Institute of Governmental Studies, University of California, Hot Topic, Proposition 66: Limitation on “Three Strikes” Law http://www.igs.berkeley.edu/library/htThreeStrikesProp66.htm (accessed Oct. 3, 2004). The California prison system, the biggest in the United States, has a budget of over 5.3 billion dollars a year. Department of Finance, California State Budget (2004-05) http://www.dof.ca.gov/HTML/Budgt04-05/Enacted/State_Budget_2004-05w.pdf (accessed Oct. 3, 2004). The prison system currently has a population of over 161,000 inmates. Institute of Governmental Studies http://www.igs.berkeley.edu/library/htThreeStrikesProp66.htm (accessed Oct. 3, 2004). Critics and Opponents of the “Three Strikes” law claim that more than half of the individuals sentenced under the current law were convicted of non-violent offenses. Id. They argue that these people clog the prisons costing the state millions of dollars annually. Id.

One of the Opponents of “Three Strikes” is the political action committee Citizens Against Violent Crime [hereinafter CAVC] headed by Jim Benson. CAVC, financed by Sacramento businessman Jerry Keenan, spearheaded the initiative statute, Proposition 66. Institute of Governmental Studies, University of California, Hot Topic, Proposition 66: Limitation on “Three Strikes” Law http://www.igs.berkeley.edu/library/htThreeStrikesProp66.htm (accessed Oct. 3, 2004). CAVC claims that Proposition 66 would “save the state as much as 700 million dollars a year in prison operating costs, and more than a billion dollars for construction of new prisons.” Citizens Against Violent Crime, Introduction to the Initiative http://www.amend3strikes.org/introduction.htm (accessed Oct. 3, 2004).

Proposition 66, the “Three Strikes and Child Protection Act of 2004,” would amend and limit the current “Three Strikes” law by requiring increased sentences “only when current [sic] conviction is for specified violent and/or serious felony.” California Secretary of the State, California Official Voter Information Guide, Official Title and Summary, Proposition 66 (2004). The initiative would redefine violent and serious felonies by requiring that “only prior convictions for specified violent and/or serious felonies, brought and tried separately, would qualify for second and third ‘strike’ sentence increases.” Id. Moreover, the changes would allow “conditional re-sentencing of persons with sentences increased under ‘Three Strikes’ Law if previous sentencing offenses, resulting in the currently charged felony/felonies, would no longer qualify as violent and/or serious felonies.” Id. The initiative would also increase sentences for specified sex crimes against children. Id.

This paper reviews the background for Proposition 66 and the existing “Three Strikes” law, raises drafting and constitutional issues, and concludes with public policy considerations.

II. The Law

A. Existing Law

California citizens enacted Proposition 184 when they overwhelmingly voted for the initiative in November 1994. Proposition 184, codified in California Penal Code § 1170.12, provided enhancements to sentences of individuals convicted of prior felonies. The equivalent of Proposition 184, Assembly Bill 971, was signed into law by Governor Pete Wilson on March 7, 1994. Assembly Bill 971 amended California Penal Code § 667. The substantively identical statutes both make up the current “Three Strikes” law.

The “Three Strikes” law operates on past felonies that are “serious” or “violent” as defined in California Penal Code §§ 1192.7(c) and 667.5(c), respectively. Represented violent felonies include murder, rape, kidnapping, sodomy by force, arson, robbery, carjacking and any burglary of the first degree. Cal. Penal Code Ann. § 667.5(c) (West 1999). Serious felonies include selling illegal drugs to minors, oral copulation by force, lewd acts with a child under 14 years old and intimidation of witnesses. Id. at § 1192.7(c). There is also some general overlap between “serious” and “violent” felonies.

Under the current law, a defendant with one or more prior convictions for a serious and/or violent felony (“strikes”) receives a sentence enhancement upon being convicted of any felony. Id. at §§ 667(d)(1) and 1192.7(c). When an individual with a prior strike (a “second-striker”) is convicted of any felony (the “second strike”), the sentencing court must impose a sentence that is twice as long as the defendant would have received otherwise. Id. at §§ 667(e)(1) and 1170.12(c)(1). An individual with two prior strikes (a “third-striker”) convicted of any felony (the “third strike”) receives a mandatory “indeterminate term of life imprisonment with a minimum term.” Id. at §§ 667(e)(2) and 1170.12(c)(2)(A). This indeterminate term is calculated using formulas specified in the statute. Id. A defendant receiving this indeterminate term for the third strike must be sentenced to a term of no less than twenty-five years to life. Id. A defendant receiving this indeterminate term will not be eligible for parole until he has served his entire mandatory minimum term (i.e., at least twenty-five years). In re Cervera, 24 Cal. 4th 1073, 1081 (2001).

A defendant’s second strike need not be for a serious or violent felony to receive the enhanced sentence as long as the prior conviction was for a serious or violent felony. Similarly, a defendant’s third strike need not be for a violent or serious felony conviction as long as the previous felony convictions qualify as strikes. In addition, a defendant may be considered to have two prior strikes if the individual was convicted of both qualifying felonies in a single judicial proceeding (e.g., a trial). People v. Askey, 49 Cal. App. 4th 381, 386 (1996).

Serious or violent felony convictions prior to the “Three Strikes” law’s enactment in 1994 can also be charged as strikes. People v. Kinsey, 40 Cal. App. 4th 1621, 1631 (1995). Additionally, a defendant’s equivalent serious and/or violent felony conviction in another jurisdiction may count as a strike. Cal. Penal Code Ann. §§ 667(d)(2) (West 1999) and 1170.12(b)(2) (West 2004). Moreover, certain felony convictions a defendant received as a juvenile may also count as strikes. Id. at §§667(d)(3) and 1170.12(b)(3).

While the “Three Strikes” law imposes enhanced sentences and grants prosecutors and judges wide discretion to file charges and impose penalties, respectively, certain statutory provisions and case law may be favorable to defendants. The statute allows prosecutors to move to dismiss a prior felony conviction so that it will not be counted as a strike. Cal. Penal Code Ann. §§ 667(f)(2) (West 1999), 1170.12(d)(2) (West 2004). Moreover, trial courts have the power to dismiss a prior felony strike count. People v. Superior Court (Romero), 13 Cal. 4th 497, 529 (1996).

B. Effects of Proposition 66.

If passed by voters, Proposition 66 will make substantial changes to the current “Three Strikes” law. The initiative proposes amendments to Penal Code sections 289, 667, 667.1, 667.5, 1170.12 and 1192.7, as well as section 707 of the Welfare and Institutions Code. Citizens Against Violent Crime, Text of the Initiative Measure Submitted to the Attorney General http://www.amend3strikes.org/textoftheinitiative.pdf (accessed Aug. 29, 2004). The stated purposes of the proposition are to: (1) continue to protect the people from criminals who commit serious and/or violent crimes; (2) to ensure greater punishment and prison sentences for those previously convicted of serious and/or violent felonies, and who commit another serious and/or violent felony; (3) to require that no more than one strike be prosecuted for each criminal act and to conform the burglary and arson statutes; and (4) to protect children from dangerous sex offenders. Id.

Section 4 of Proposition 66 amends California Penal Code § 289 to allow for increased prison sentences for defendants convicted of sexual penetration with a child under fourteen years of age and the defendant is more than ten years younger than the offender. Citizens Against Violent Crime, The Three Strikes and Child Protection Act of 2004 at § 4 http://www.amend3strikes.org/textoftheinitiative.pdf (accessed Aug. 29, 2004). Current law provides prison sentences of three, six or eight years for such offense. Cal. Penal Code Ann. § 289(j) (West 2003). Section 4 increases the sentences to six, eight and twelve years. Citizens Against Violent Crime, The Three Strikes and Child Protection Act of 2004 at § 4 http://www.amend3strikes.org/textoftheinitiative.pdf (accessed Aug. 29, 2004).

The proposed initiative adds “oral copulation” as an offense that mandates the increased prison sentence under Penal Code § 289(j). Id. The initiative also mandates that a person guilty of the offenses under § 289(j) will receive counseling during the imprisonment and at least one year following release. Id. Finally, section 4 provides that a second conviction of the offense involving sexual penetration or oral copulation with a child under fourteen years of age requires a sentence of twenty-five years to life. Id.

Sections 5 and 8 propose amendments to California Penal Code §§ 667 and 1170.12, respectively. Citizens Against Violent Crime, The Three Strikes and Child Protection Act of 2004 at §§ 5, 8 http://www.amend3strikes.org/textoftheinitiative.pdf (accessed August 29, 2004). The initiative changes the wording to the original “Three Strikes” law to require that a defendant may be subjected to the longer sentences mandated by the current law only if the conviction for the new crime (i.e., a second or third strike) was for a serious and/or violent felony. Id. Additionally, Proposition 66 requires that prior strike offenses must have been brought and tried separately from the new offense that triggers the sentence enhancement. Id.

The initiative also seeks to make changes to the felonies listed as serious and/or violent in the California Penal Code. Sections 7 and 9 propose amendments to California Penal Code §§ 667.5 and 1192.7, respectively. Citizens Against Violent Crime, The Three Strikes and Child Protection Act of 2004 at §§ 7, 9 http://www.amend3strikes.org/textoftheinitiative.pdf (accessed Aug. 29, 2004). Sections 7 and 9 add the phrases “specifically intends to personally” and “in which the defendant acts to personally inflict great bodily injury” to Penal Code §§ 667.5(c)(8) and 1192.7(c)(8), respectively, to require that a defendant must intend to personally injure a victim for this listed felony to be considered “violent” under the proposed law. Id. at §§ 7, 9. Section 9 also proposes to amend California Penal Code § 1192.7(c) by removing from the list of serious and violent felonies the following offenses: attempted burglary, conspiracy to commit assault, and felony offenses that violate California Penal Code § 186.22. Id. at § 9. Penal Code § 186.22 makes it a felony for a person to actively engage in criminal street gang and to promote felonious criminal conduct by members of that gang. Cal. Penal Code Ann. § 186.22 (West 2004).

Section 10 proposes to amend California Welfare and Institutions Code by removing “[a]ny offense described in section 1203.09 of the Penal Code” as one of the listed offenses that counts as a “strike” if committed by a minor that is sixteen years or older at the time of the offense. Citizens Against Violent Crime, The Three Strikes and Child Protection Act of 2004 at § 10 http://www.ss.ca.gov/elections/bp_nov04/prop_66_text_of_proposed_law.pdf (accessed Sept. 12, 2004). Penal Code § 1203.09 prohibits probation and suspension of sentences for defendants convicted of certain enumerated crimes against persons sixty years of age or older, blind persons, paraplegics or quadriplegics. Cal. Penal Code Ann. § 1203.09 (West 2004). These crimes include murder, robbery, kidnapping and burglary in the first degree. Id.

Finally, section 11 provides that any individual sentenced under the current “Three Strikes” law for an enhanced conviction that would not qualify for an enhancement under the proposed statute (i.e., Proposition 66), “shall qualify for resentencing and be remanded to the court of origin for resentencing, subject to [certain] conditions.” California Secretary of the State, California Official Voter Information Guide, Text of Proposed Laws, Proposition 66 (2004). Section 11 is the most controversial section of this measure. This section raises drafting issues that will be discussed in section III below. In addition, section 11 raises an issue that is at the center of the debate between Proponents and Opponents of Proposition 66. Opponents of Proposition 66 cite this section as its main reason for defeating the measure. That issue will be discussed in section V, the Public Policy Considerations section of this paper.

III. Drafting Issues

A. Resentencing Provisions

Drafting challenges to Proposition 66 will likely focus on section 11 of the initiative. As stated above, the section provides for resentencing of certain individuals. Initially, the text of section 11 appears to have some ambiguity as to which individuals are eligible for resentencing. That is, are both second-strikers and third-strikers eligible for resentencing under section 11 upon the initiative’s enactment? If the resentencing provision in section 11 applies only to third-strikers, second-strikers serving lengthy sentences under the current law are likely to challenge the provision in section 11.

A court construing a voter initiative must apply traditional principles of statutory construction. Robert L. v. Super. Ct., 30 Cal. 4th 894, 900 (2003). Absent ambiguity, a court will presume that the voters intend the meaning apparent on the face of the initiative. The People ex. rel. Lungren v. Super. Ct. of the City and County of S.F., 14 Cal. 4th 294, 301 (1996). In case of an ambiguity in a ballot initiative, a court will refer to ballot materials in “order to discern what the average voter would understand to be the intent of the law upon which he or she was voting.” McLauglin v. St. Bd of Educ., 75 Cal. 4th 196, 215-16 (1999).

The scope of section 11 appears to allow resentencing of all persons serving enhanced sentences under the current law—second- and third-strikers alike—whose current offense would not qualify for sentence enhancement under the initiative. Section 11 provides:

Any individual sentenced under the prior Three Strikes law, including,but not limited to, paragraph (2) of subdivision (e) of Section 667 of the Penal Code, paragraph (2) of subdivision (c) of Section 1170.12 of the Penal Code, and /or Section 707 of the Welfare and Institutions Code, for an enhanced conviction that would not qualify for enhancement under this statute, shall qualify for resentencing and be remanded to the court of origin for resentencing, subject to the following conditions[:]

California Secretary of the State, California Official Voter Information Guide, Text of Proposed Laws, Proposition 66 (2004).

The opening sentence, on its own, appears to say that both second- and third-strikers could be eligible for resentencing under the initiative, since both fall within the phrase “any individual sentenced under the prior three strikes law...shall qualify.” However, the phrases after “[s]ubject to the following conditions” seem to suggest that the provisions for the opening sentence, “[a]ny individual sentenced...” are restricted to third strikers. The initial two “conditions” are stated in section 11 as follows:

(a) A person who was convicted of a felony and is currently serving an indeterminate term of life in prison for a felony, if the following apply: ¶ (1) The person was sentenced pursuant to Section 667 or 1170.12, or both, of the Penal Code and/or Section 707 of the Welfare and Institutions Code prior to those sections being amended by this act.¶ (2) The currently charged felony resulting in the imposition of an indeterminate term of life in prison was not described as a violent or serious felony pursuant to this act. ¶ (b) A person who is currently serving an indeterminate term of life in prison for a felony by virtue of a plea, if the following apply: ¶ (1) The person was sentenced pursuant to Section 667 or 1170.12, or both, of the Penal Code and/or Section 707 of the Welfare and Institutions Code prior to those sections being amended by this act.¶ (2) The currently charged felony resulting in the imposition of an indeterminate term of life in prison was not described as a violent or serious felony pursuant to this act.

California Secretary of the State, California Official Voter Information Guide, Text of Proposed Laws, Proposition 66 (2004).

Under section 11, subdivisions (a) and (b), three conditions must be met before any person may qualify for resentencing. First, the individual must be “currently serving an indeterminate life term” by virtue of a conviction or a plea. Id. Second, the person must have been sentenced pursuant to the current “Three Strikes” law. Id. Finally, the person must be serving an indeterminate life term for a current offense that does not constitute a serious or violent felony under the initiative. Id.

A close reading of the whole initiative strongly suggests that only a third-striker is capable of satisfying all three of these conditions. Because a second-striker does not meet the three conditions, a second-strike offender is not eligible for resentencing under the proposed law. Thus, since there appears to be no ambiguity, a court will likely presume that the voters intend the meaning apparent on the face of the initiative that the resentencing provision applies only to third-strikers. However, if a court finds that section 11 is invalid, Proposition 66 has a severability clause that may preserve the validity of the other sections.

B. Severability

Proposition 66 contains a severability clause which allows provisions later found invalid to be severed from the valid portions. The severability clause, stated in section 13, provides that:

The provisions of this act are severable. If any provision of this act, or the application thereof to any person or circumstance, is held invalid, that invalidity shall not affect any other provision or application of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

California Secretary of the State, California Official Voter Information Guide, Text of Proposed Laws, Proposition 66 (2004).

While Proposition 66 contains a severability clause, this provision is not conclusive without further analysis. A court examining a severability provision uses three criteria to determine whether an initiative provision is invalid and should be severed. Gerken v. Fair Pol. Practices Commn., 6 Cal. 4th 707, 715 (1993). A provision of an initiative is determined severable if the provision is grammatically, functionally and volitionally severable. Id.

Under the grammatical test, severability is appropriate where the language of the statute is mechanically severable. People’s Advocate, Inc. v. Super. Ct. of Sacramento County, 181 Cal. App. 3d 316, 330 (1986). Where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase or single words, the provisions are grammatically severable. Id. Proposition 66 is divided into different sections which are independent of each other. If a court finds that section 11 of Proposition 66 is invalid, the language of the other provisions, which are contained in different sections, may be separated by sections and paragraphs from section 11. Thus, the other provisions of Proposition 66 will be grammatically severable from the invalid sections.

The provisions must also pass the functional test of severability. The court must determine whether the remaining provisions are complete by themselves. Id. at 332. That is, they must be capable of independent application. Id. at 331. The court must find that the part to be severed is not part of a “partially invalid but unitary whole.” Id. The remaining sections or provisions “must stand on their own, unaided by the invalid provisions nor rendered vague by their absence nor inextricably connected to them by policy considerations.” Id.

The other sections in Proposition 66 are complete in themselves even without section 11. Section 11 provides for resentencing of individual serving enhanced sentences under the current law. The other sections provide for amendments to existing law regarding which felonies may be considered violent or serious to trigger sentence enhancements. In addition, other sections amend the Penal Code by providing enhanced sentences for certain sexual crimes against minors. Even if the resentencing provision of section 11 is held invalid, the remaining provisions have an independent application wholly apart from and unaided by the provision of section 11. The remaining sections, which amend certain sections of the Penal Code and Welfare and Institution Code, may stand on their own even without the resentencing provision of section 11.

Even if a court determines that the remaining provisions are complete in themselves, the initiative must pass the volitional test. The determination of the valid portions depends upon whether the voters’ intent was sufficiently focused on the remaining language (or provisions) and if these clauses would have been separately considered and adopted without the supposed invalid provisions. Gerken, 6 Cal. 4th at 716. If a part or section to be severed “reflects a ‘substantial’ portion of the electorate’s purpose, that part can and should be severed and given operative effect.” Id. at 715.

It is likely that the voters would adopt and separately consider the remaining sections of Proposition 66 without section 11. As stated, section 11 provides for resentencing of individuals serving enhanced sentences under the current law. The other sections make changes to the Penal Code and Welfare and Institutional Code by amending the current list of serious and violent felonies which trigger the sentence enhancements. In addition, other sections, independent from section 11, amend the Penal Code to require that prior strike offenses must have been brought and tried separately from the new offense that triggers the enhancement.

The other sections separate from section 11, reflect a substantial portion of the electorate’s purpose—to make changes to the Penal Code and Welfare Institutional Code by amending the list of serious and violent felonies and the requirements before a strike may be considered for sentence enhancement. Section 11 adds an extra benefit for defendants currently serving enhanced sentences by providing for resentencing. Even without the added feature of section 11, it is likely that the voters will adopt the remaining sections. Thus, the remainder should be severed and given operative effect even without section 11.

The remaining provisions of Proposition 66 can be mechanically or grammatically severed from section 11. The provisions of Proposition 66 are divided into different sections. Even if section 11 is invalid, it may be separated from the language of the remaining provisions by sections or by paragraphs. The remaining provisions are also complete in themselves, even without section 11. Section 11 provides for resentencing while the remaining sections, which are independent from the resentencing provision, amend the current list of serious and violent felonies and the requirements for using a strike to enhance a sentence. Even without section 11, the remaining sections may stand on their own because they have an independent application, wholly separate and unaided by section 11.

Finally, it is likely that the voters would adopt and separately consider the remaining provisions of Proposition 66 even without section 11. While section 11 provides for resentencing, the remaining sections amend the list of serious and violent felonies and the requirements before a strike can be used to enhance a sentence. The remaining sections reflect a substantial portion of the electorate’s purpose, which is to amend the list of serious and violent felonies and the requirements for enhancing sentences. Since section 11’s provision is just an added benefit for defendants, the electorate would still likely adopt the remainder even without it. Since the remaining provisions are grammatically, functionally and volitionally severable, a court would likely find that even if section 11 is held invalid, the remainder is severable.

IV. Constitutional Issues

A. Federal Constitution

The current law raised issues concerning the proportionality principle of the Eighth Amendment. As stated earlier, there were several challenges brought by defendants serving lengthy sentences under the current law shortly after Three Strikes was enacted. Vitiello, 37 U.C. Davis L. Rev. at 1053. However, defendants have been unsuccessful in challenging their lengthy sentences under the current law. Id. at 1054.

Proposition 66 proposes to change the sentence enhancements for second- and third-strikers by requiring the felony triggering the enhancement for the subsequent “strike” to be serious and/or violent. It also provides resentencing for third-strikers serving long sentences under the current law. Because of the proposed reduction in sentence enhancement and the resentencing provision, there will be fewer defendants with lengthy sentences that will bring Eighth Amendment challenges to the new Three Strikes law. However, if the resentencing provision of section 11 is interpreted to apply only to third-strikers, second-strikers may continue to challenge their enhanced sentences under the current law after Proposition 66 is enacted.

With respect to the resentencing provision of Proposition 66, there may also be Sixth Amendment right to counsel issues raised by second-strikers currently serving enhanced sentences under the current law. Section 11, subdivision (f) provides that a person who is eligible for resentencing “shall be entitled to representation by counsel under this section, for the purposes of resentencing, trial or retrial.” California Secretary of the State, California Official Voter Information Guide, Text of Proposed Laws, Proposition 66 (2004). As stated earlier, the better reading of the resentencing provision is that there is no ambiguity and that the provision only applies to third-strikers. Under this interpretation, second-strikers are not entitled to resentencing and are not entitled a right to counsel. Thus, second-strikers may bring Sixth Amendment challenges to Proposition 66 if enacted.

B. California Constitution

Article II, section 8(d) of the California Constitution states “an initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” Cal. Const., art. II, § 8(d). This section was enacted to promote disclosure and avoid confusion of both voters and petition signatories, and to avoid the frustration of the electorate’s will. Senate v. Jones, 21 Cal. 4th 1142, 1156-57 (1999).

In Legislature v. Eu, 54 Cal. 3d 492 (1991), the California Supreme Court interpreted the single subject rule broadly, holding that so long as the provisions of an initiative are reasonably related to a common theme or purpose, the measure does not violate the singe subject rule. In Legislature, the court found that Proposition 140, the Political Reform Act of 1990, did not violate the single subject rule, because the three separate reforms of the proposition were all aimed at the general goal of incumbency reform. Id. The Court stated the issue was not whether each section will be functionally effective, but whether the sections were reasonably germane to the single subject of incumbency reform. Id. at 514.

The provisions of Proposition 66 appear to adhere to the requirements of the single subject rule. The goals of Proposition 66 include redefining serious and violent felonies, while maintaining that longer sentences are imposed on second- and third-strikers. Citizens Against Violent Crime, Text of the Initiative Measure Submitted to the Attorney General http://www.amend3strikes.org/textoftheinitiative.pdf (accessed Aug. 29, 2004). Proposition 66 seeks to amend the current “Three Strikes” law to require that second and third strike offenses must be for serious or violent crimes. Id. In addition, the initiative proposes to amend the law relating to sex crimes against children to require longer sentences and counseling services for some offenders. Id. Thus, Proposition 66 does not violate the single subject rule because the provisions in each section are reasonably germane to the single subject of imposing longer sentences for certain felonies.

V. Public Policy Considerations

A. Proponents

Proponents of Proposition 66 claim that the current “Three Strikes” law does not meet the objectives that the California voters originally intended and Proponents promised. California Secretary of the State, California Official Voter Information Guide, Analysis of Prop. 66, The Three Strikes and Child Protection Act of 2004, Arguments and Rebuttals, Proposition 66 (2004). Proposition 66 supporters argue that the law does not meet the goal of keeping serious and violent criminals in prison. Id. They point out that the voters of the original “Three Strikes” law did not intend for the law to lock-up non-violent, petty offenders for life. Id.

Proponents also argue that because of the current law’s ill-effects, the prison population has greatly increased, with most of the inmates serving enhanced sentences for petty, non-violent offenses. Institute of Governmental Studies, University of California, Hot Topic, Proposition 66: Limitation on “Three Strikes” Law http://www.igs.berkeley.edu/library/htThreeStrikesProp66.htm (accessed Oct. 3, 2004). This increase also led to rising prison costs which drain the state budget. Id. Proponents claim that Proposition 66 will save the state as much as 700 million dollars in annual prison operating costs. Citizens Against Violent Crime, Introduction the Initiative http://www.amend3strikes.org/introduction.htm (accessed Sept. 11, 2004).

Supporters of the measure contend that while Californians intended that the “Three Strikes” law target murderers, kidnappers, rapists and child molesters, the effects of the law is to imprison for life petty offenders guilty of stealing videotapes or pizza theft. California Secretary of the State, California Official Voter Information Guide, Arguments and Rebuttals of Proposition 66 (2004). By requiring that the felony triggering the enhanced sentence must be serious or violent, rather than any felony, the measure will meet the original objectives of Proposition 184—to put violent criminals in prison. Id. Since the initiative also allows for resentencing of convicted third-strikers under the current law, those serving indeterminate life sentences for offenses such as petty theft may be released sooner. Citizens Against Violent Crime, Introduction to the Initiative http://www.amend3strikes.org/introduction.htm (accessed Sept. 11, 2004). This will significantly decrease the prison population leaving only the more violent criminals to serve longer sentences. Id.

The California prison population grew from 125,473 in 1994, the year California voters enacted “Three Strikes” law, to 153,783 in June 2003. Scott Ehlers, Vincent Shiraldi & Jason Zeidenberg, Still Striking Out: Ten Years of California’s Three Strikes (Justice Policy Institute July 1, 2004). A large part of the prison population, which increased 22.6 percent from 1994 to 2003, is made up of second- or third-strikers. Id. The operating costs of housing this prison population are in the billions of dollars. Department of Finance, California State Budget (2004-05) http://www.dof.ca.gov/HTML/Budgt04-05/Enacted/State_Budget_2004-05w.pdf (accessed Aug. 29, 2004).

Passage of Proposition 66 will greatly reduce the prison population as well as prison operating costs. California Secretary of the State, California Official Voter Information Guide , The Three Strikes and Child Protection Act of 2004, Analysis by the Legislative Analyst, Proposition 66 (2004). The combined effect of the proposed changes in the current “Three Strikes” law would be prison operation costs savings of several tens of millions of dollars in the first couple of years. Id. Moreover, the state can enjoy savings of several hundred millions of dollars in about a decade, after the full impact of the initiative is realized. Id.

Supporters of Proposition 66 include Assembly members Mark Leno and Jackie Goldberg, the ACLU, and Joe Klaas.

B. Opponents

Supporters of the current “Three Strikes” law argue that Proposition 66 won’t protect children or save tax money. California Secretary of the State, California Official Voter Information Guide, Arguments and Rebuttals, Proposition 66 (2004). Opponents of Proposition 66 claim that the initiative will have the effect of releasing as many as 26,000 convicted felons from prisons. Id. This includes dangerous felons that have long histories of serious and violent crimes. Id.

The Opponents’ main contention with the proposed measure is the resentencing provision, which will eventually require the release of some third-strikers upon passage of the law. Id. Opponents list several dangerous career felons that will have their sentences dramatically reduced, if the voters approve Proposition 66. Id. Californians United of Public Safety, The Truth About Proposition 66 http://www.keep3strikes.org/facts.asp (accessed Oct. 3, 2004). The Opponents rebut the Proponents’ arguments about petty offenders serving enhanced sentences under “Three Strikes” by claiming that the average California inmate is convicted of five felonies before ever being sent to prison. California Secretary of the State, California Official Voter Information Guide , Arguments and Rebuttals, Proposition 66 (2004).

Opponents also allege increased costs associated with the release of the offenders. California Secretary of the State, California Official Voter Information Guide, Analysis of Prop. 66, Arguments and Rebuttals, Proposition 66 (2004). They argue that, because the initiative applies retroactively, fifty-eight percent of all third-strikers and sixty-three percent of all second-strikers would be returned to local communities for resentencing and release. This, in effect, would cost taxpayers millions of dollars in new legal and law enforcements costs. Californians United for Public Safety http://www.keep3strikes.org/facts.asp (accessed Oct. 3, 2004).

Since the measure contemplates the release of state prisoners to parole due to shorter prison sentences, the state may see an increase in state parole supervision costs. California Secretary of the State, California Official Voter Information Guide, Analysis by the Legislative Analyst, Proposition 66 (2004). While the costs associated with the increased parole caseload supervision is unknown, the Legislative Analyst Office [hereinafter LAO] estimates it would cost taxpayers about ten million dollars annually when the full impact of the initiative is realized. Id.

There will also be increases in court-related activities and operation costs of county jails if Proposition 66 passes. Id. The LAO cites three factors for the increased costs. First, the resentencing provision would increase caseloads and would likely require the local jails to house inmates during the resentencing proceedings. Id. Second, there is a likelihood that some offenders released from prison under the resentencing provision will be subsequently prosecuted and convicted for new crimes. Id. Finally, some individuals that would have been sentenced to state prison under the current law will be sentenced to jail, instead of prison, under the measure’s revision to the definitions of serious and violent felonies. Id.

The initiative’s requirement of providing counseling services for offenders convicted of sex offenses with minors will increase the operating costs. Id. The annual cost of incarcerating and providing counseling services would likely grow from a couple hundred thousand dollars to as much as a couple of million dollars. Id.

Opponents of Proposition 66 include Mark Klaas, all fifty-eight county District Attorneys, Attorney General Bill Lockyer, Governor Arnold Schwarzenegger and Oakland mayor Jerry Brown.

VI. Conclusion

The Three Strikes Law and Child Protection Act of 2004, if approved by voters, will make substantial changes to the current “Three Strikes” law that was enacted by voters in 1994. The proposed amendments will include the requirement that a person would be subject to the enhanced sentences under the current “Three Strikes” law only if the conviction for the new crime was for a violent or serious felony. The initiative also redefines serious and violent felonies and requires that prior convictions for serious and/or violent felonies must have been brought and tried separately before they are considered as strikes. In addition, Proposition 66 seeks to protect children by increasing punishment for certain sexual offenses against children. The initiative also provides for conditional resentencing of individuals with sentences enhanced under the current “Three Strikes” law.

Public policy considerations call for voters’ attention regarding the effects of the measure if passed. Specifically, the Opponents point to the eventual reduction of sentences and release of offenders serving sentences under the current “Three Strikes” law. The initiative’s passage will also have a fiscal impact on the state. Proponents of Proposition 66 claim that the initiative will significantly decrease the prison population, thereby reducing the annual prison operating costs. The LAO confirms this and states that the combined effect of the changes proposed by the initiative would be prison operating costs savings of potentially tens of millions of dollars in the first two years. However, the LAO also estimates that the resentencing provision will create increased parole supervision costs and add additional operating expenses for local courts and jails.