Three strikes and you’re out. At least, you were out until last Tuesday. In my election post last week, I mentioned that Prop 36, a ballot initiative that would reform California’s three-strikes law, was up for consideration. On election day, the people of California rallied and passed Prop 36 by a wide margin (68.6% yes, 31.4% no) and the three-strikes law struck out.

What is the three-strikes law?

One step closer…

For the unfamiliar, the three-strikes law was a draconian California law that allowed a person with three felonies (whether violent or non-violent) to be locked away for life. Former inmate Norman Williams, for example, got his three strikes for 1) illegally entering an empty apartment, 2) lifting some art supplies, and 3) stealing a car jack, which would ultimately land him a life sentence. Needless to say, the intended effects of the three-strikes law have long been dwarfed by its realities. A reporter’s interview of a group of lifers at San Quentin summarizes the unintended effects of three-strikes perfectly—several of the inmates interviewed (all serving time for non-violent offenses under three strikes) had actually supported the law when it first came out. (See Aljazeera English’s expose starting at 9:34).

The passage of Prop 36 is an amazing victory. Most amazingly, this is a victory that is not limited to prospective change, it is one that extends retroactively. As Slate’s Emily Bazelon explains, “the passage of Proposition 36 marks the first time U.S. voters have passed a sentencing reduction that applies to people who are already in prison.” In short, hundreds, and possibly thousands, of inmates who are currently serving life sentences for nonviolent offenses (i.e. non-murders, rapes, or child molestations) will now be able to request judges to reevaluate their sentences.

Three-strikes and Brown v. Plata

Victory may be sweet, but for California, crimnial justice reform has always felt like an effort to dig out of a hole rather than an effort to make steps forward. The golden state has a serious over incarceration problem, a problem it has only recently begun to come to terms with. In 2011, the Supreme Court addressed the issue of overcrowding in California state prisons with the case Brown v. Plata. Plata began in the lower courts as an effort to change California prison conditions for inmates who were severely mentally ill. As the investigation deepened, it became clear that the root of the problem was the serious overcrowding in California’s prison system (the state was operating at 200% capacity). The three-strikes law had inevitably contributed to these overcrowded conditions.

Packed to the gills in California

A narrow majority of the Court (split 5-4 along party lines) called for the overcrowded California prison system to be “realigned” so the prison population would be reduced to 137.5%—still over capacity, but slightly more within reason. The fallout from Plata has yet to be realized. It was a common misconception (a misconception made even by Justice Scalia) that prisoners would be released into the streets after Plata, but the reality was not much better. In reality, most of these prisoners would instead be transfered to cash-strapped state jails. Thus, as prisons scramble to reduce populations, state jails will feel the brunt of realignment efforts.

The pendulum swings…

When Plata was decided, prison reformists rejoiced. But the victory was in many ways hollow. The Court was putting a finger in the dam by redistributing California’s prison population—prisons would be adjusted to be less crowded, but nothing was being done to stem the flow of incarcerated peoples the kept streaming into California’s prisons. With Prop 36’s reforms of the three-strikes law, less non-violent offenders will be wasting away in prison cells. And Plata‘s promise to lessen prison overcrowding now becomes more fulfilled.

California’s proposition is a victory in more ways than one. Moreso than Plata (which was decided by nine over-educated legal scholars), Prop 36 represents a positive shift in favor of prison reform, it represents a shift in public opinion writ large. 6,193,431 votes attest to this shift. That a prison reform initiative could pass by popular vote is an indication that the pendulum on criminal justice could be slowly, almost imperceptibly, swinging in the other direction. And that is a victory truly worth celebrating.


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