The recent U.S. Supreme Court decision requiring California to reduce its prison population by more than 30,000 within two years has prompted the perennial proponents of softer sentencing to blame the state's "three-strikes" law for prison overcrowding.

The 1994 law significantly increased prison terms for repeat offenders with previous convictions for violent or serious felonies, including up to life for the most egregious career criminals.

" 'Three-strikes' foes see hope in ruling," headlined a San Diego Union-Tribune article, citing those who believe that the law "keeps nonviolent offenders in prison for far too long." The ruling should "push lawmakers to repeal the notorious sentencing legislation," the California Criminal Defense Lawyers advised.

A "large majority" favor "modifying" three strikes, a June 16 Field Poll proclaimed.

Yet these views perpetuate serious myths about three strikes.

First, three strikes is not the primary contributor to prison overcrowding. As of Dec. 31, only about 25 percent of California's prison population, or roughly 41,000 inmates, were serving time in state prison under three strikes, according to the Legislative Analyst's Office. More than 32,000 were second strikers, and about 8,700 were third strikers. Although the number imprisoned under three strikes grew quickly in the first years of the law, the LAO states, the rate of growth has slowed significantly in the past decade as many second strikers have completed their sentences and been paroled.

A more significant factor in prison overcrowding is California's high recidivism rate. Two-thirds of state prisoners return to prison within three years, including many for parole violations. Last year, 47,000 offenders served 90 days or fewer in prison, according to the California Department of Corrections and Rehabilitation, a problem that Gov. Jerry Brown wants to address by transferring control of certain low-level, nonviolent offenders to the counties, if funding issues are resolved.

Second, contrary to the misleading Field Poll question – whether three strikes should be "modified to give judges and juries more discretion in sentencing persons convicted of a third felony" – judges already have discretion to dismiss prior serious or violent felony convictions in three-strikes cases if they deem a sentence for the offender's current conviction too harsh. Prosecutors can also move to dismiss prior felonies from consideration during sentencing in the "furtherance of justice."

This discretion is evident in the rate at which strikers are admitted to prison from various counties, the LAO points out. The number of strikers admitted to prison per 100,000 felony arrests in the state's 15 largest counties from 1994 through 2010 ranged from a high of 3,149 in San Diego to a low of 242 in San Francisco – reflecting the more lenient approach in San Francisco, whose 2009 violent crime rate per 100,000 people incidentally was 708 compared to San Diego's 398.

Nor is three strikes filling up our prisons with petty thieves, as opponents claim. While 47 percent of inmate strikers were serving time for nonserious or nonviolent offenses as of the end of last year, that figure "underreports the percentage of strikers whose current offense activity was actually serious or violent," according to the LAO, because district attorneys sometimes prosecute for lesser offenses that "may be easier to prove in court knowing that the three strikes sentence enhancement will still apply."

In addition, these offenders had to have committed prior serious or violent felonies, such as murder, robbery, assault with a deadly weapon, rape, kidnapping, residential burglary, manufacturing drugs, weapons possession and arson. Third strikers whose current offenses are nonserious and nonviolent, for example, average five prior felony offenses compared to one on average for the rest of the inmate population, according to a 2005 LAO analysis. Many would have returned to prison even in the absence of three strikes for new offenses or parole violations.

In 2003, the U.S. Supreme Court upheld the law's constitutionality against an argument that a third-strike sentence against Gary Albert Ewing for stealing $1,110 worth of golf clubs in Los Angeles County violated the Eighth Amendment against cruel and unusual punishment. The court, pointing to Ewing's nine separate prison terms and prior strikes, concluded that, "Ewing's sentence is justified by the state's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record."

California's violent crime rate plummeted 58.9 percent between 1992 and 2009, reaching its lowest level since 1969, with the help of three strikes.

Instead of blaming three strikes for prison overcrowding, we should stop our prisons from being used as a revolving door for low-level offenders. It is precisely the three-strikes population – repeat felons who refused to stop their crime sprees – who belong in prison to protect the innocent from becoming their next victim.

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Margaret A. Bengs is a former spokesperson for state agencies and political speechwriter who lives in Carmichael.Reach her at peggybengs@hotmail.com.

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