Proposition 36 - Literature Review
Before 2000
The three strikes law commonly referred to as Proposition 36 has had a long history. It started in the year 1994 when the state passed Proposition 184, which allowed courts to convict a person from 25 years to lifetime if that person had two or more serious convictions for a violent felony in the past. It also qualified the courts to double a person’s penalty of a convict if had been convicted of a felony before (Farabee et al., 2004). The initial attitude was that it was mandatory in all qualifying cases. This attitude came to change only in 1996 when the courts interpreted it to mean that judges possessed discretion, to preside over the present cases as they deemed fit. In practice, courts in California treat many cases as felonies, but without distinguishing between serious and violent ones. Scully, (2007) argues that the introduction of the Proposition in various states such as California, which introduced it in 1993, followed the increase of violent crimes and most of the offense were conducted by repeat offenders.
Provisions of Proposition 36 of 2000
The California electorate voted for this law during the general elections of November 2000 under the title The Substance Abuse and Crime Prevention Act. Its object was to create an alternative way of handling drug abuse through the creation of an automatic probationary program for offenders under the influence of drugs (section 5). The program’s object was in two parts, to propose drug treatment and to reduce incarceration for persons who commit nonviolent crimes under the influence of drugs (Farabee et al., 2004). Eventually, it turned out to be a great formula for decongesting jails. However, certain exclusions stood. These included the defenders persons who had been incarcerated within the preceding five years on the grounds of serious and violent felonies, defendants who refused treatment, use of arms during the offense, and those convicted in the same court before for a non-drug related misdemeanor or a felony. Of course, those who violated the provisions of the probationary program would be sent back to jail. The general perception of the people is that the Act led to the release of many criminal in the streets. The shortcomings of the Act led to the formulation of Proposition 36 of 2012 (Stanford Law School, 2013). The new proposition in 2012 reduced the sentences of prisoners facing non-serious, non-violent and those serving life terms as a result of unconstitutional overcrowding in prisons.
After the Year 2000
The application of the Three Strikes Law came to change in 2000. The new approach required judges to use the law only when the potential third strike allowed was serious and violent. The move precluded disproportionate sentences of 25years to life for petty crimes (Drucker, 2012). However, it was punished as a second strike case and the new proposition led to a plethora of courtroom battles seeking to abolish it on the ground of unconstitutional for appending unusual sentences. The San Bernardino case of 2001, a petition of Proposition 3 of the year 2000, epitomizes the legal environment at the time. The efforts led to Proposition 36 a proposal through a ballot. The new proposition was erroneous and impractical to apply. It exhibited two major shortcomings. First, it would have led to the release of dangerous criminals from jail, which would have been self-defeating legally and socially. Secondly, it deliberately avoided taking cognizance of repeat crime and consequently failed to append punishment for the same and the supporter of the Proposition 66 kept their hopes going. The start of the year 2006, saw the enactment of yet another legislation from Senator Gloria (Scully, 2007). The new law retained crucial concepts of the latter proposition, including the definition of serious and violent, two to three strikes penalties, and power to re-sentence the third strike as a second strike. Proposition 36 was conceived from these conditions.
The Operation of Proposition 36 of 2012
Proposition 36 brought forth changes to the original law. Firstly, it sought to modify the key elements of Three Strikes Law of the year 1994. It was the third time voters were exercising their democratic right in determining the future of criminal justice. Like Proposition 36, it sought to modify controversial and ineffective aspects of the original law. Proposition 36 of 2012 also referred to as the Three Strikes Law was approved by the California electorate on November 6th, 2012, an approval that marked the highest rate of passage in the history of the state (Stanford Law School, 2013). After the reform conducted in the law in 2012, more than 1,000 prisoners have been released from custody, according to data provided by the California department of corrections (Lofstrom, & Raphael, 2016). Additionally, it was noted that recidivism among the released prisoners had fallen significantly.
Salient Features of Proposition 36
It brought forth changes in several areas of the mother law. Firstly, it revised the operation of the three strikes. As a requirement, an imposition of a life sentence would only take form on a determination of the new felony as either violent or serious in nature. This provision tactfully allowed the courts to punish repeat offenders. The extension made the law more effective as deterrence for crime commission. Secondly, it authorized judges to re-sentence offenders serving a lifetime sentence for their third strike. For this provision to operate within the law, it had to meet two conditions. First, the third strike had to be actionable, but without been of serious or violent nature. Secondly, re-sentencing must not pose an unnecessary risk to public order and safety. However, it maintained a life sentence penalty for non-violent and non-serious crimes when adjudicating a third strike if the preceding offenses were aggravated crimes such as murder, rape, and child molestation (Stanford Law School, 2013). This provision has been a great source of controversies, especially from the human rights perspective on an argument of unconstitutionality. Lastly, it continued to allow life sentences for certain third strike, acts of nonviolent and non-serious acts involving firearm possession, drug-related crimes, and violent sex.
Effect of Operation of the Law
The immediate repercussion of the proposition 36 is that it made many petitions from convicted felons convicted under the old 1994 law for the reduction of sentences admissible. The state projected that, effecting the reductions could save the state a sum approximately $180million in a year. In Los Angeles, for instance, at least 1300 inmates were eligible for the reduction. Apparently, about 8800 prisoners serving sentences are in jail courtesy of the operation of the 1994 law (Farabee, HSER, Anglin, & Huang, 2004). Proposition 36 has been one of the most debated legislations in the Republic due to the legal and practical dynamics attached to it.
Different factions have advanced own arguments hailing the merits of the law. Apparently, it marks California as a state with the toughest recidivist law (Farabee et al., 2004). With the new law in force, potential repeat offenders have much to worry about their future conduct as it could easily earn them a lifetime sentence. Secondly, drafters carefully distinguished dangerous criminals in such a way that they would never escape the grasp of the law. It notes repeat criminals as a huge threat to the security and directs tougher sentences for punitive and deterrence purposes. On the other hand, it recognizes certain crimes, including murder and rape as especially wanting. Besides, it creates space for serious felonies. It makes it possible to decongest prisons of nonviolent offenders and in essence create space for truly dangerous criminals. Lastly, it reconciles punishment and the crime (Scully, 2007). The once allegations of disproportionate sentences would reduce with a big margin, making it a more acceptable law. On the economic side, its operation would help the state to save some money, which would, in turn, be channeled to the provision of other social amenities.
Counter Argument
The retrogressive nature of the law presents serious shortcomings. Firstly, it gives criminals an avenue to reduce their sentences and eventually get out of the jail. Eventually, the crime rate would rise, defeating its core objects. Often, many of these criminals have been released without parole and supervision and eventually revert to same old practices. In effect, it could have an economic dimension by costing taxpayers more money (Stanford Law School, 2013). More so, the concept of resentencing by a different judge with the possible reduction of sentence is a breach of justice to the victims.
Personal View
Proposition 36 was a milestone in adjudicating over crimes in California. Recidivism is a global concern in many justice systems. The definition of the terms ‘serious’ and ‘non-serious’ crimes was necessary and helped to fill the existing legal gap. The drafters of the 2012 legislation helped to avoid criticism on constitutional grounds on the same. This was a serious shortcoming with the 1994 law. It is only fair that the law defines sentences depending on the gravity of the offense in question (Drucker, 2012). Going too high or too low in light of a crime, impute serious limitations of both economic and legal nature. It is commendable that its drafters took time, to provide a law that appreciates the diversity of crimes and require punishment only when necessary to do so. However, its operation raises serious concerns. Firstly, an immediate implication is the reduction of the sentences and eventual release of prisoners. However, it fails to provide an institutional framework to facilitate this move. For instance, a majority of the prisoners could be released without parole or even community supervision thus predisposing them to recidivism. That notwithstanding, the changes it brought were necessary, but provisions to interfere with those already in jail are defeating for two main reasons. First, they allow a new judge to interfere with a case earlier adjudged on merit. Secondly, the reduction and eventual release constitute an injustice to the victims (Lofstrom & Raphael, 2016). Lastly, it creates an avenue for dangerous criminals to get back to the society.
Necessary Improvements
The changes of in Proposition 36 were necessary to help to deal with clogging of prisons with petty crimes and provide a deterrent law. For efficiency, changes in several areas are necessary. First, the implementation part should leave alone those prisoners already in jail. It allows unjustified interferences on cases once decided on merit. This is a retrogressive way of operation not supported by many constitutions. It creates a loophole criminals use to defeat the objects of the law. Either way, a proper institutional framework for community supervision of released criminals is an imperative (Lofstrom & Raphael, 2016). The proposition would in essence help to monitor the behavior of such criminals and reduce the rate of recidivism. Lastly, the provisions on lifetime incarceration of serious and non-violent crimes on the third strike preceded by certain offenses such as rape imply that it still allows for disproportionate sentences. In many ways, the provision is unconstitutional and opens floodgates for long time criticism from human rights activists. Well, acknowledging that the accused is capable of heinous offense should count, but only as a persuasion in determining a case, but not as sole reason for the final decision (Farabee, HSER, Anglin, & Huang, 2004). To the contrary, the 25 years or lifetime charge should be subject to the gravity of the offense under consideration.
References
Drucker, E. (2012). Drug law, mass incarceration, and public health. Or. L. Rev., 91, 1097.
Farabee, D., HSER, Y. I., Anglin, M. D., & Huang, D. (2004). Recidivism among an early cohort of California's Proposition 36 offenders. Criminology & Public Policy, 3(4), 563-584.
Lofstrom, M., & Raphael, S. (2016). Incarceration and Crime Evidence from California’s Public Safety Realignment Reform. The ANNALS of the American Academy of Political and Social Science, 664(1), 196-220.
Scully, J. (2007). Debunking the Myths Attacking California’s Three Strikes Law and Demonstrating Its Effectiveness in Protecting the People of California. The Journal of the Institute for the Advancement of Criminal Justice, 1 - 38.
Stanford Law School. (2013). Progress Report: Three Strikes Reform (Proposition 36). New York: Stanford Law School Three Strikes Project and NAACP Legal Defense and Education Fund.
