Criminal justice panel mulls changes to ‘three strikes’ law

For more than a year, a seven-person California commission has been quietly spearheading a massive effort to overhaul the thicket of criminal laws that make up the state penal code.

Its ideas for 2022 are ambitious, including an eventual end to the state’s controversial “three strikes” law and changes to lifetime prison sentences without the possibility of parole.

“I think there are a great number of injustices,” said Michael Romano, the chairman of the state Committee on Revision of the Penal Code and a Stanford Law School lecturer.

The committee — comprising lawmakers, criminal law scholars and former federal and state judges appointed by the governor and legislative leaders — was formed in 2020 to make police recommendations to lower California’s incarceration rates.

The advisory panel aims to provide lawmakers with ideas that move California toward more diversion and rehabilitation programs and away from the tough-on-crime policies of decades past. Members have encouraged the state Board of Parole Hearings to grant more prisoner releases and have characterized some sentence enhancements as too harsh. They favor mental health treatment in lieu of incarceration and have endorsed ending California’s death penalty.

Its work resulted in six laws that Gov. Gavin Newsom signed in 2021. The new laws include limiting sentence enhancements for gang affiliation and ending mandatory sentence minimums for nonviolent drug offenses.

The changes, according to a committee overview, “will significantly reduce unnecessary incarceration for thousands of Californians, reduce racial disparities in criminal sentencing, and save taxpayer dollars better spent on programs proven to improve public safety.”

In December, the committee submitted its second annual report to the Legislature, recommending expanded reentry programs for paroled prisoners and strengthened laws to divert people with mental health concerns into treatment, not prison.

But the current political climate could make such ambitious changes challenging.

A recent increase in retail smash-and-grab crimes and last year’s 31% rise in homicides have left Democratic lawmakers under fire for endorsing more progressive criminal justice policies, though the policies are not clearly connected to current crime trends. Critics point to laws such as Proposition 47, which lowered certain drug and theft felony offenses to misdemeanors, and Proposition 57, which expanded parole eligibility, as evidence of California’s missteps.

“All we need are these anecdotal stories to scuttle really thoughtful approaches to reforms because we just err on the side of really wanting to be punitive to make a point,” said state Sen. Sydney Kamlager, D-Los Angeles, who served on the committee as an Assembly member before being elected to the Senate.

Despite current headlines, Romano remains optimistic.

“California has led the nation in criminal justice reform,” Romano said. “Election after election, there have been reforms to reduce punishment and provide more opportunities for people to get out of jail and prison. At the same time, our crime rates have dropped.”

Robberies fell 13.8% in 2020, according to the California Department of Justice, as did the rape rate, by 8.2%. The total arrest rate also plunged by 17.5%, while the violent crime rate increased by less than 1%.

“Public safety has to be paramount, but responding just to sensational crimes … does not necessarily reduce crime,” said state Sen. Nancy Skinner, D-Berkeley, a member of the penal code revision committee.

Instead, Skinner said, California should bolster diversion tactics like mental health and rehabilitation programs that aim to cut crime rates without incarceration. Skinner wrote a law from the committee’s 2020 recommendation report to restrict sentence enhancements that she said overwhelmingly affect people of color.

That approach has drawn criticism from law enforcement representatives who argue the committee’s recommendations don’t consider victims.

The committee is attempting to solve complex social and socioeconomic issues through changes to the criminal justice system, said Michele Hanisee, president of the Association of Deputy District Attorneys for Los Angeles County.

“It’s really not fair to expect prosecutors to be the ones to resolve these inequities when the harm has already occurred, when lack of opportunities, lack of education has already occurred,” she said.

Susan Burton, the founder of A New Way of Life Reentry Project in Los Angeles County, sees it differently.

The penal code, Burton said, was written with an “eye toward solving social ills through incarceration and punishment.”

Broader policy changes will take time. Some of the committee’s recommendations require a simple majority vote in both houses of the Legislature. Other proposals would require either a twothirds majority vote by lawmakers or a statewide ballot measure.

Romano said ending life sentences without parole and eliminating the three-strikes law are changes that would likely need to be approved by voters.