Prop. 36 seeks to ease California's three-strikes law

By Jack Leonard, Los Angeles Times

Oct. 27, 2012 12 AM PT

Dale Curtis Gaines has never been convicted of a violent offense, but his prison term of 27 years to life is longer than many sentences imposed on rapists, child molesters and killers.

Gaines was sent to prison under California’s tough three-strikes law, which targets repeat offenders with previous convictions for at least two violent or serious crimes when they commit any new felony. Two prior residential burglaries made Gaines eligible for a lengthy prison stint when a jury found him guilty of a new offense in 1998.

His crime: receiving stolen property.

VOTER GUIDE: California’s 2012 propositions

Gaines, 55, is among thousands of inmates with relatively minor third strikes who could seek reduced punishments — and, in some cases, their freedom — if voters pass a statewide ballot measure Nov. 6 that softens the law.

Supporters of Proposition 36 say the initiative addresses three strikes’ unfairest feature so offenders whose third strikes were neither serious nor violent could no longer be sentenced to 25 years to life.

But opponents of Proposition 36 point to another inmate as evidence that California needs to keep three strikes intact.

More than 250 miles south of Gaines’ prison home in Vacaville, Ervin Eugene Cole serves a three-strikes term at Wasco State Prison in the San Joaquin Valley.

His lengthy record included two strikes — one for a robbery using a firearm, the other for assault with a deadly weapon — before he led police on a high-speed chase in a stolen car through the streets of Hawthorne in 1999. He finally crashed into another car, injuring the vehicle’s driver, and fled on foot until a police officer tackled him.

Cole, 45, pleaded no contest to hit-and-run, car theft and evading police, crimes that are not considered serious or violent under state law. He was sentenced to 25 years to life.

Even though Cole’s previous strikes were violent, he could also ask a court to release him if Proposition 36 passes.

The two cases illustrate the continuing divisions over the state sentencing law, which has withstood numerous attempts to change it since voters overwhelmingly approved three strikes in 1994.

Advocates of amending three strikes say Proposition 36 makes the punishment fit the crime while preserving lengthy sentences for dangerous criminals. Of the state’s 8,873 third-strikers, nearly a third were convicted of drug or relatively minor property crimes.

The proposition’s changes would not apply to offenders with previous convictions for murder, rape or child molestation, or to those whose latest offense involved a sex crime, major drug dealing or use of a firearm. Current third-strikers seeking release would have to prove to a judge that they are not an unreasonable safety risk before their sentences could be reduced.

Others prosecuted for relatively minor felonies in the future would be treated as if they had only one previous strike and sentenced to double the standard prison term for their latest crime. With the change, a third-striker who would have faced 25 years to life for a nonviolent theft that normally carries two years in prison instead would face four years.

“Do they deserve to be punished for their crimes? Absolutely,” said Michael Romano, who helped write the proposition and runs a Stanford Law School project that represents inmates convicted of minor third strikes. “It’s the life sentences for non-serious, nonviolent crimes that are fundamentally unfair.”

Since 2008, the Stanford project has persuaded courts to release 26 third-strikers from prison. Only one has re-offended, earning a conviction for minor drug possession, Romano said.

In a television ad, the district attorneys from Los Angeles, San Francisco and Santa Clara counties say the measure would reduce prison overcrowding and save California millions of dollars. In Los Angeles, Dist. Atty. Steve Cooley said Proposition 36 mirrors a policy his office has followed since he was elected in 2000. “L.A. County has not gone to hell in a handbasket because we have a moderate three-strikes policy,” he said.

But critics say it’s not that simple.

Mike Reynolds, whose daughter’s 1992 murder led him to spearhead the creation of three strikes, condemned Proposition 36 as watering down a vital sentencing tool. The law, he said, was designed to remove criminals who had proved themselves serious offenders in the past, no matter their present crimes.

“This is a very dangerous initiative,” he said. “They are repeat offenders by definition.... How much damage are they going to do while they’re out?”

Other opponents include victims’ rights groups and more than a dozen law enforcement associations, including the union that represents rank-and-file LAPD officers and the California District Attorneys Assn.

The association’s chief executive officer, Scott Thorpe, noted that prosecutors and judges already have the authority to spare a third-striker the maximum sentence and, more often than not, do. Thorpe faulted the ballot measure for removing such discretion and said it focuses too much attention on offenders’ latest crimes rather than their often lengthy criminal histories.

“There are already checks and balances,” he said.

In a report criticizing the ballot measure, Thorpe’s organization cited the case of Cole, the third-striker who led Hawthorne police on a car chase. Under the initiative, Cole would be able to ask a judge to reduce his sentence to a maximum of eight years and eight months, less than he has already served, the report said.

During the original 2000 sentencing hearing, a judge said Cole had been in prison or on parole for the previous 16 years, adding: “I don’t see anything in your future ... [except] more of the same.” An appeals court noted that the driver of the car struck by Cole during the police chase had to undergo treatment for neck and back strain.

Cooley described Cole’s case as serious and said his office, if the proposition passes, would exercise its right under the initiative to argue in court that Cole was a danger to the public and should not be released. Prosecutors, he said, would still have a variety of legal ways to seek lengthy punishments in similar cases if the measure is approved.

“That may seem an inconsistent position,” he said. “But it still goes back to the sense of proportionality. That 25-to-life is a sentence we reserve for first-degree murderers.”

In the case of Gaines, the Sonoma County district attorney’s office described him in recent court documents as “the very definition of a recidivist criminal.” Gaines’ history before his third strike, they said, included two separate convictions for receiving stolen property, two for residential burglary and another for evading police.

The Stanford project, which is representing him, has asked a judge to consider reducing his sentence, arguing that Gaines mentally functions at the level of a first-grader, casting doubt on whether he fully understood that what he was doing was wrong.

Romano and Stanford Law School students wrote that Gaines’ original attorney should have highlighted his client’s mental illness after a judge initially found him incompetent to stand trial. Gaines eventually did go to trial, and a jury convicted him of receiving computer equipment stolen from the American Cancer Society.

But the Sonoma County judge who sentenced him was never told that prison authorities had previously classified Gaines as “mentally retarded,” Romano and the students wrote. Prison authorities had also noted in the past that Gaines appeared to be paranoid, heard voices and had other mental problems.

“He should be punished,” Romano said. “But a life sentence that’s longer than rapists’ and murderers’ does nothing to keep California safer.”

[email protected]