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 AB 327 Page 2 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 AB 327 Page 3 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. AB 327 Page 4 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 AB 327 Page 5 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 AB 327 Page 6 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 AB 327 Page 7 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. AB 327 Page 8 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 Page 9