BILL ANALYSIS Ó
AB 327
Page 1
Date of Hearing: January 10, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 327 (Davis) - As Amended: January 4, 2012
SUMMARY : Amends the "Three Strikes" Law, subject to voter
approval, to require that the current conviction be a "serious"
or "violent" felony in order to subject a defendant to an
enhanced sentence under the 25-years-to-life (third strike)
provisions. Specifically, this bill :
1)Requires the current conviction to be a serious or violent
felony in order for the third-strike (25-years-to-life term)
provisions of the Three Strikes Law to apply.
2)States that this bill affects an initiative statute and shall
only become effective when submitted to, and approved by, the
voters of California.
EXISTING LAW :
1)Defines a "strike" prior as serious felonies listed in Penal
Code section 1192.7(c) and 1192.8, and violent felonies listed
in Penal Code section 667.5(c). ĘPenal Code sections
667(d)(1) and 1170.12(b)(1).]
2)Provides that a defendant who commits any felony and has
previously been convicted of one "strike" prior conviction
must be sentenced to twice the base term of the current
felony. ĘPenal Code sections 667(e)(1) and 1170.12(c)(1).]
3)Provides that a defendant who commits any felony and has
previously been convicted of two or more "strike" prior
convictions, must be sentence to at least 25-years-to-life in
state prison. ĘPenal Code sections 667(e)(2) and
1170.12(c)(2).]
4)Requires consecutive rather than concurrent sentencing for
multiple offenses committed by strikers, unless the current
felony convictions arise out of the same set of operative
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facts. ĘPenal Code sections 667(c)(6) and 1170.12(a)(6).]
5)Requires affected defendant be committed to state prison, and
disallows diversion or probation. ĘPenal Code sections
667(c)(2) and (c)(4), and 1170.12(a)(2) and (a)(4).]
6)Limits conduct credits for strikers to 20% of the term.
ĘPenal Code Sections 667(c)(5) and 1170.12(a)(5).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "At a time with
high prison overcrowding in this state, which has come at
great cost to the taxpayer, AB 327 is common sense policy for
California. The original intent of 'Three Strikes' was to
protect the public from violent offenders by extending the
sentences of violent offenders. Current policy however, has
gone beyond this intent by extending the sentences of all
third time felony offenders, not simply those for violent or
serious felony offenders. Ultimately, this has led to unfair
sentencing as well as prison overcrowding. The solution is
simple; amend 'Three Strikes' so that the third strike must be
a 'serious' or 'violent' felony. This will help California
direct its resources toward the real threat to public safety."
2)Background : There are actually two Three Strikes laws: one
enacted by the Legislature in Penal Code section 667(b)-(i),
and another enacted by initiative, Proposition 184, and
codified in Penal Code section 1170.12. Both laws are
virtually identical. ĘPeople v. Hazelton (1996) 14 Cal.4th
101.]
Because one of the Three Strikes laws was enacted by voter
initiative, the Legislature may not amend the statute without
subsequent voter approval unless the initiative permits such
amendment, and then only upon whatever conditions the voters
attached to the Legislature's amendatory powers. ĘPeople v.
Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also
Cal. Const., art. II, § 10, subd. (c).]
Proposition 184, section 4 states: "The provisions of this
measure shall not be amended by the Legislature except by
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statute passed in each house by rollcall vote entered in the
journal, two-thirds of the membership concurring, or by a
statute that becomes effective only when approved by the
electors." If passed, this provision of this bill would be
submitted for voter approval.
3)Application of the Law : According to a May 2011 fact sheet
prepared by the Legislative Analyst's Office (LAO), "As of
December 31, 2010, there were roughly 41,000 inmates serving
time in state prison under the Three Strikes Law, making up
about 25 percent of the total prison population. Of the
striker population, more than 32,000 are second strikers, and
about 8,700 are third strikers." (See Impact of Three Strikes
on the Criminal Justice System, May 2, 2011.)
The LAO reports that there is considerable variation among
counties in the likelihood that a defendant is prosecuted and
convicted under the law. In a 2005 report evaluating the
impact of the Three Strikes Law after a decade, the LAO noted:
"local county justice systems have developed various
strategies for handling their Three Strikes caseloads, based
on different policy priorities and fiscal constraints. Thus,
the manner in which the law is implemented at the local level
by prosecutors and judges varies across counties. In some
counties, for example, prosecutors seek Three Strikes
enhancements only in certain cases, such as for certain types
of crimes that are particular problems in their county or
where the current offense is serious or violent. In other
counties, prosecutors seek Three Strikes enhancements in most
eligible cases. Similarly, judges vary in how often they
dismiss prior strikes, based on discretion afforded to them
under the Romero decision. In addition, variation in the
application of Three Strikes not only exists across counties,
but can also occur within counties. In particular,
prosecution practices change over time as counties experience
turnover of district attorneys and judges and as they develop
new methods for handling Three Strikes cases." (A Primer:
Three Strikes - The Impact After More Than a Decade, October
2005, <
http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm >.)
4)Effectiveness in Reducing Crime : Supporters of the Three
Strikes Law say it has been a major factor in reducing crime
rates in California.
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In contrast, a recent report by the Center on Juvenile and
Criminal Justice (CJCJ), argues that the law has not reduced
violent crime. CJCJ concluded: "Analysis of strike
sentencing and crime trends by age group and county
consistently found no evidence supporting the law's deterrent
or selective incapacitation effect on targeted populations or
in the jurisdictions most affected. The populations that
demonstrated the greatest decline in violent crime rates since
1994 were youths and young adults, which experienced the least
strike sentencing, while those ages 40-59, which experienced
much heavier strike sentencing, have shown little or no
improvement in violent crime rates. The eight largest
counties that applied the law the most (Kern, Sacramento, Los
Angeles, Tulare, San Bernardino, Riverside, San Diego, and
Stanislaus), incarcerated strike offenders at a rate averaging
2.2 times greater than the eight major counties that invoked
the law least (San Francisco, Contra Costa, Alameda, Ventura,
Orange, Santa Clara, San Joaquin, and Fresno). Yet, counties
that vigorously enforced the 'Three Strikes' law did not
experience declines in violent crime relative to counties that
used the law sparingly. Despite their nearly six-fold greater
use of 'Three Strikes' law, Kern and Sacramento (the highest
strike-sentencing counties) experienced lesser reductions in
violent crime trends than Contra Costa and San Francisco
counties (which rarely use the law)." (See Striking Out:
California's "Three Strikes And You're Out" Law Has Not
Reduced Violent Crime,
< http://www.cjcj.org/files/Striking_Out_Californias_Three_Strik
es_And_Youre_
Out_Law_Has_Not_Reduced_Violent_Crime.pdf >.)
According to a 2005 report by the LAO, "The overall crime rate
in California, as measured by the Department of Justice's
California Crime Index, began declining before the passage of
the Three Strikes law. In fact, the overall crime rate
declined by 10 percent between 1991 and 1994. The crime rate
continued to decline after Three Strikes, falling by 43
percent statewide between 1994 and 1999, though it has risen
by about 11 percent since 1999. Similarly, the violent crime
rate declined by 8 percent between 1991 and 1994 and then fell
an additional 43 percent between 1994 and 2003. It is
important to note that these reductions appear to be part of a
national trend of falling crime rates. National crime
rates-as reported by the Federal Bureau of Investigation's
Uniform Crime Report-declined 31 percent between 1991 and
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2003, with violent crime declining 37 percent over that
period. Researchers have identified a variety of factors that
probably contributed to these reductions in national crime
rates during much of the 1990s including a strong economy,
more effective law enforcement practices, demographic changes,
and a decline in handgun use." (See, A Primer: Three Strikes
- The Impact After More Than a Decade,
< http://www.lao.ca.gov/2005/3_strikes/3_
strikes_102005.htm >.)
5)Incarceration Costs : A 2010 report by the California State
Auditor (CSA) concluded that nearly 25% of the inmate
population is incarcerated under the Three Strikes Law. The
CSA estimated that the increase in sentence length due to the
Three Strikes Law will cost California an additional $19.2
billion over the duration of the incarceration of this
population. (See Special Report to Assembly and Senate
Standing/Policy Committees, February 2010 Report 2010-406, p.
122 < http://www.bsa.ca.gov/pdfs/reports/2010-406.pdf >.)
6)The Three Strikes Reform Act of 2012 Initiative : A new ballot
initiative written by Stanford professors David Mills and
Michael Romano was filed with the Attorney General on October
18, 2011. The initiative is intended for the November 2012
ballot if sufficient signatures can be gathered this winter.
In detail, the initiative:
a) Revises the Three Strikes Law to impose a 25-to-life
sentence only when a new felony conviction is serious or
violent, except continues to impose a 25-to-life sentence
if a third strike conviction was for certain non-serious,
non-violent sex or drug offenses, or involved firearm
possession.
b) Maintains a life-sentence penalty for felons with a
non-serious, non-violent third strike if the prior
convictions were for rape, murder, or child molestation.
c) Provides that repeat offenders who commit a new
non-violent, non-serious crime receive double the ordinary
sentence instead of a 25-to-life term.
d) Allows prisoners currently serving life sentences for
non-serious, non-violent crimes to apply for a sentence
reduction. However, a judge can reduce the 25-to-life
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sentence to a term of years no less than double an ordinary
sentence if the judge determines that the sentence
reduction would not cause "an unreasonable risk to public
safety."
7)Previous Reform Efforts : There have been several legislative
efforts to change the Three Strikes Law, but they have all
failed. Additionally, in 2004, the voters rejected
Proposition 66, which would have required that a third strike
be a serious or violent crime and would have reduced the
number of offenses deemed serious under state law. Although
the proposition failed to pass, 47% of the voters did vote in
favor of the measure.
8)Arguments in Support : According to the California State
Conference of the National Association for the Advancement of
Colored People , "Mandatory minimum sentences, such as
California's 'Three Strikes' law, are not only ineffective in
stopping crime, but they are also a powerful drain on our
resources in a manner which discriminates against entire
communities."
"Nearly two-thirds of the people sentenced under California's
'Three Strikes' law are convicted of non-violent offenses;
African Americans 'struck out' at 12 times the rate of their
Caucasian counterparts, and the Latino incarceration rate for
a third strike is 45% higher than that of whites."
"California's 'Three Strikes' law has cost the state an
additional $8.1 billion over the past 10 years, and has had an
untold impact on the lives and communities that are ruined
when a nonviolent offender is given a sentence of
25-years-to-life. This is $8.1 billion that could rather have
been spent on education, job creation, health care,
interdiction and alternatives to incarceration programs."
9)Arguments in Opposition : According to the California District
Attorneys Association , "Despite the fears and protestation of
opponents, the Three Strikes law has been used sparingly and
allows for discretion (that is regularly exercised) at both
prosecutorial and judicial levels. The prosecution is
permitted to request that the court dismiss a felony strike
either in furtherance of justice pursuant to Penal Code
section 1385 or if there is insufficient evidence to prove the
prior conviction. In fact, many of California's district
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attorneys have approved policies governing the exercise of the
prosecutor's discretion in moving the trial court to dismiss
strikes in furtherance of justice. Additionally, in People v.
Superior Court (Romero) of 1996, the California Supreme Court
interpreted the Three Strikes law to allow for judicial
discretion to dismiss serious and/or violent felony prior
convictions on the court's own motion for purposes of
two-strike and three-strike sentencing . . . . "
"Despite the sparing use of the law and the protections
described above, proponents of this bill have in the past and
will undoubtedly continue to blame Three Strikes for
California's prison overcrowding. Nothing could be further
from the truth. As of September 30, 2011, the California
Department of Corrections and Rehabilitation (CDCR) reports
that there were 8,813 third-strikers in California prisons.
When compared with the current total prison population of
approximately 135,000, offenders serving third-strike
sentences only comprise 6.5% of prison inmates. We must
additionally note that because every one of these third
strikers was convicted of a felony and has at least two
serious and/or violent felony convictions, it is likely that
most would serve a prison term even without the enhanced
punishment made available by the Three Strikes law."
10)Prior Legislation :
a) AB 1751 (Ammiano), of the 2009-10 Legislative Session,
would have deleted a prior juvenile adjudication from the
definition of "prior felony conviction" for the purposes of
sentencing under the Three Strikes Law. AB 1751 failed
passage on the Assembly Floor.
b) SB 1642 (Romero), of the 2005-06 Legislative Session,
would have amended the life-term provisions of the Three
Strikes Law to include persons convicted of serious or
violent offenses, persons convicted of non-serious offenses
in the current case who have specified "super-strike" prior
convictions, and persons convicted in the current case of
specified drug trafficking crimes and sex crimes, and would
have allowed prison inmates who would not have received a
25-year-to-life term under the amended law to file a
petition for re-sentencing. SB 1642 was never heard on the
Senate Floor.
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c) AB 112 (Goldberg), of the 2003-04 Legislative Session,
would have amended the Three Strikes Law to require that
the current conviction be a "serious" or "violent" felony
in order to subject a defendant to an enhanced sentence.
AB 112 died on the Assembly's Inactive File.
d) AB 1790 (Goldberg), of the 2001-02 Legislative Session,
would have amended the Three Strikes Law to require that
the current conviction be a "serious" or "violent" felony
in order to subject a defendant to an enhanced sentence.
AB 1790 was held on the Assembly Appropriations Committee's
Suspense File.
e) SB 1517 (Polanco), of the 2001-02 Legislative Session,
would have amended the Three Strikes Law to exempt certain
felonies from triggering application of the law. SB 1517
died on the Senate's Inactive File.
f) AB 2447 (Wright), of the 1999-2000 Legislative Session,
would have amended the Three Strikes Law to require that
the current conviction be a "serious" or "violent" felony
in order to sentence a defendant to a minimum term of
25-years-to-life in the state prison. AB 2447 failed
passage on the Assembly Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice
California State Conference of the National Association
for the Advancement of Colored People
Friends Committee on Legislation of California
Opposition
California District Attorneys Association
Crime Victims United of California
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744
AB 327
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