One of the many criticisms of California's three strikes law is that is can lead to unfair and even absurd sentences...for example life in prison for a "strike out" offense of petty theft with a prior.
That's because the way the law is written now any felony offense will trigger the mandatory 25-years-to-life three strikes sentence if the defendant has two or more past serious or violent felony convictions.
But thanks to the Proposition 36 ballot initiative, California voters will get the chance to change things. Proposition 36 will change the three strikes law so that it only applies when the third "strike out" offense is itself a serious or violent felony. That means no more strike out life sentence for stealing golf clubs, pizza or videos.
Voters cannot rely on the court system to right what many perceive as the wrong of three strikes sentencing. The United States Supreme Court has looked at the issue and decided that the law is not unconstitutional, even though cases might exist in which its application is so grossly disproportionate that it violates the Eighth Amendment prohibition against cruel and unusual punishment.
Recently the California Supreme Court followed suit, issuing its own opinion on the three strikes law in the case of In Re Willie Clifford Coley. In that case, which involved a life sentence for failure to register as a sex offender, the Court held that in "analyzing a cruel and unusual punishment challenge to a sentence imposed upon a defendant convicted of this offense, a court may not simply look to the nature of the offense in the abstract, but must take into consideration all of the relevant specific circumstances under which the offense actually was committed."
The Court found that three strikes sentencing was appropriate in that case because the defendant's failure to register was willful (thus showing his continued inability to conform to society's rules) and because he had a record that included particularly violent and/or serious crimes.
In theory a case-by-case, contextual approach might be a good idea. But justice is in the eye of the beholder, and right now we have a three strikes system in which prosecutors and judges hold such extreme power that whether someone spends the remainder of his or her life in prison for a non-violent, non-serious felony offense can depend on whether that person happens to get a prosecutor with a compassionate streak (who will agree to "strike a strike") and/or how a reviewing judge comes down on "all the relevant specific circumstances."
Proposition 36 does not eliminate punishment for committing felony crimes, however minor or benign. What Proposition 36 does do is inject a sense of rationality and fairness into our criminal justice system...together with a sense of cautious optimism that nobody is beyond hope and beyond redemption.