CA Proposition 36: An experiment with sensible penal sentencing reform

“California is to incarceration what Mississippi was to segregation — the state that most exemplifies the social and legal deformities of the practice.” California’s Three Strikes sentencing law was a ballot measure approved by state voters in 1994. This habitual offender law triggered mandatory sentencing guidelines for defendants convicted of felonies on multiple subsequent occasions. Each additional felony conviction carried an enhanced sentence; if an offender had a previous charge upon conviction of a new felony the individual would be sentenced to twice the original term, and if a repeat felon was convicted of a third felonious charge, the nominal third strike, it would qualify the offender for a 25 to-life term. This law went unchanged for 18 years fueling California’s commitment to a force of total incapacitation of offenders as the primary means of ensuring public safety. With sociolegal pressure converging on California’s overcrowded prisons on the basis of fiscal and humanistic objections, lawmakers introduced a new initiative in 2012 aimed at redistributing the third-strikers.

Proposition 36, passed by California voters in November 2012, significantly amended the Three Strikes Law. Prop 36 contains two main provisions designed to redirect the blowback of California’s overfilled prisons. The first measure changed the requirements that triggered automatic 25 to-life sentences for third strike offenders. The original implementation of the law necessitated a 25 to-life sentence applied to any general felony committed by an individual with two or more prior strikes, while the new amendment required the third felony offense to be ‘serious or violent’ in nature to trigger the 25 year-to-life sentence. This nuanced distinction advanced the potential for tremendous change in sentencing law and is directly linked to the second feature of Prop 36. The second proposal allowed contemporarily serving third-strikers the opportunity to petition the court for a reduction of their term to a second strike sentence if they were eligible under the new guidelines. If an individual had been sentenced to a 25 to-life term under the old Three Strikes Law, but the third strike was not serious of violent in nature, they would now have the ability to advocate for a reduced sentence under Prop 36 . This profound change in California’s criminal sentencing law on the books has reverberated throughout the carceral system and has allowed individuals previously condemned to life sentences the possibility of a future release on parole.

Prop 36 passed with 69.3% of the vote, effectively signaling a mandate that California voters were serious about criminal justice reform. There were numerous political figures and activists who supported the passing of the ballot measure. The California Democratic party, the District Attorney Offices from Los Angeles, San Francisco, and Santa Clara counties, the NAACP Legal Defense and Education Fund, and Los Angeles Chief of Police Charlie Beck were among the notable, widespread supporters. Arguments in favor cited rationales of making the punishment fit the crime, saving the state millions of dollars every year, and relieving non-violent offenders from life in prison sentences. Opponents of Prop 36 included the California Republican party and organizations such as Crime Victims United of California and Crime Victims Action Alliance. Arguments against Prop 36 stated that crime rates have significantly dropped since implementation of the Three Strikes Law, that releasing felons back to society will infringe on community safety, and felons who are released, statistically speaking, are likely to be recidivists.

No defined legal apparatus was established for implementing Prop 36 so state and local agencies share the responsibility. Judicial and prosecutorial actors are the key legal gatekeepers who determine the rate and efficiency of implementation. Pertinent members of the incarcerated population seeking to have their life terms altered must demonstrate to a judge “they are not an unreasonable risk of danger to public safety” (Penal Code Section 1170.126). The petition must be filed in the same county the offender committed the most recent offense. Thousands of felons are eligible for a readjusted sentence, but a crucial lack of resources has limited the implementation.  

California’s Three Strikes penal sentencing law on the books was significantly amended with the passage of Prop 36, but the law in action paints a different picture. Prop 36 represents the first comprehensive attempt to shorten prison sentences for incarcerated populations nationwide. The mechanisms used to enforce the reform however have been rather unequal and has contributed to the reproduction of further inequality. The most appealing aspect of Prop 36, that the initiative would be applied retroactively to all relevant offenders sentenced to 25-to-life terms under the old Three Strikes Law, has not been implemented at a modest – by the most charitable definitions of the term, pace. The law in action has been slow to respond due primarily to a plethora of problems resulting from inadequate legal resources.

The burden of implementation, via adjudicatory hearings, has been left to county level judges, prosecutors, and public defender offices which has produced the incremental enforcement. Institutional barriers continue to impede the fulfillment of the law as local level officials face overwhelming dockets with few resources available to facilitate the process. Data from the California Department of Corrections and Rehabilitation (CDCR) highlights at least 3,500 inmates in California prisons who are currently eligible under the language of the new law to revise their sentence, equating roughly to one third of all third strikers in the state. In some cases this would specifically mean immediate release. To date, judges have found the vast majority of inmates entitled to relief under Prop 36 deserve shorter sentences and have granted early release. At least 2,500 additional eligible inmates have filed the necessary legal documents, but are still waiting to have their cases reviewed in county courts. In Los Angeles county alone there are over 800 cases of inmates seeking readjusted sentences in which formal petitions have been filed, but remain unresolved. Petitions pending review are held up by overburdened legal channels that rely on strict procedural and administrative policies before dispositional hearings. Some counties face issues regarding the allocation of necessary prosecutorial resources to these special adjudication hearings. Other counties deal with public defender offices that lack sufficient means to investigate and synthesize the relevant information for these hearings. A substantive consequence of relying on county level procedures to implement Prop 36 has been the unequal levels of enforcement across state municipalities.

The pattern of readjusted sentences and early releases varies wildly among different counties. Counties in southern California exhibit the highest rates of numbers of inmates released under Prop 36. Inmates from Los Angeles, San Bernardino, Orange, and Riverside counties make up almost half of all the population of who has been released statewide. Comparatively, San Francisco and Alameda counties have two of the lowest rates of inmates released under Prop 36. The selective pattern of implementation speaks to larger issues revolving around complex legal processes. Once a petition has been filed District Attorney’s review each individual case and reserve the right to contest an inmate’s suitability for potential release. When a District Attorney challenges the safety of releasing an inmate the regional Superior Court must hold an appeals hearing in which evidence must be presented by both sides. This belabored process symbolizes the type of institutional roadblocks alluded to earlier that are holding efficient implementation back. Only 2% of petitions for readjusted sentences have been denied, so perhaps an expedited route for approving these special hearings should be explored and legislated.    

Judicial intervention has yet to play a direct role in the implementation of Prop 36 as the legal framework of the proposition hitherto has not been challenged in courts. Allegations of selective or biased enforcement suits have likewise yet to make it to the judicial arena. In the landmark Supreme Court decision Brown v. Plata (2011) California was ordered to alleviate prison overcrowding to a constitutionally permissible level of 137.5% above design capacity. Gov. Jerry Brown opted for compliance armed with a plan for Correctional Realignment in the State. Realignment (Assembly Bill 109) shifted the burden of incarceration to county level jails for parole and post-release revocations as well as offenders convicted of “non-violent, non-serious, and non sex-registrable offenses” (CA Pen. Code § 1170h). This unprecedented shift in custodial responsibility contextualizes the unique challenges local level actors are confronted with as mass incarceration in California prisons has morphed into a force of transincarceration in county jails.

Given Proposition 36 is still very young it remains to be seen how effective this law will be in action. As the sample size for further analysis grows contemporarily observable trends will surely still be a factor. Putting the weight of implementation on counties has undeniably hindered the effectiveness of the law in action. The fact that 3,500 plus inmates are currently eligible under Prop 36 for relief but are still incarcerated is a frustrating, yet ultimately predictable outcome. Despite the limited empirical resources available to evaluate the effectiveness of Prop 36 in action, tangentially related promising trends have emerged. Less than 2% of inmates released under Proposition 36 have been charged with a new crime, marking the recidivism rate as well below state and federal levels. California has one of the highest recidivism rates in the country, but those granted relief under Prop 36 represent a smashing success that serves to challenge common perceptions of the incorrigibility of incarcerated populations.

Prop 36 symbolizes a baby step towards sensible penal sentencing and criminal justice reform. Growing social awareness of California’s prison crisis has strengthened the commitment to social justice initiatives aimed at dismantling draconian sentencing policies. Despite these recent positive developments room for reform still abounds. County level officials are in dire straits and require more legal resources to help increase the efficiency of implementation. Bureaucratically convoluted procedural obstacles continue to play a role in the prevention of timely dispositions. In overcoming these systemic roadblocks the State must allocate more resources to prosecutors and defense counsels to expedite the review process. Courts should consider establishing uniform standards of review and application to improve efficiency. Prop 36 has already generated significant fiscal savings for the State, but full unabated implementation for all eligible inmates would amount to over $1 billion in savings by 2020. Situating the implementation of Prop 36 in this fiscal context may serve to motivate extralegal actors to take in an interest in the improved enforcement. Releasing the relevant non-violent offenders would also serve to free up prison space for those inmates who do pose high risks to community safety. Prop 36 offers a chance to alter the trajectory of mass incarceration, but the law in action has been handcuffed by administrative obstacles. Prop 36 is a solid foundation for coalition building on prison reform, but further legislative change needs to be enacted before we can solve the human rights disaster that is the California carceral state.  



A Primer: Three strikes: Measuring the Impact. (2014, October). Retrieved September 15, 2016, from Legislative Analyst’s Office,


Appeals & Resentencing in “Three Strikes” Cases: (Reducing Prison Terms after Proposition 36). (2015). Retrieved October 25, 2016, from Shouse California Law Group,


California Department of Corrections and Rehabilitation: 2014 Outcome Evaluation Report. (2014). Retrieved October 24, 2016, from CDCR,


California Proposition 36, changes in the “Three Strikes Law”. (2014). Retrieved September 15, 2016, from Ballotpedia,,_Changes_in_the_%22Three_Strikes%22_Law_(2012)


Couzens, J. R., & Bigelow, T. A. (2016, May). The Amendment of the Three Strikes Sentencing Law. Retrieved September 15, 2016 from from,


Leonard, J. (2013, September 9). Freed 3-strikes inmates have low recidivism rate, report finds. Retrieved October 24, 2016 from LA Times.


NAACP Legal Defense & Education Fund, & Stanford Law School Three Strikes Project. (2016). Progress Report: Three Strikes Reform (Proposition 36). Retrieved September 16, 2016,


Simon, J. (2014). Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America. United States: New Press, The.


Stanford Law School Three Strikes Project: Proposition 36 Progress Report: Over 1,500 Prisoners Released Historically Low Recidivism Rate. (April 2014). Retrieved October 20, 2016.


Verma, Anjuli (2016, November 21) The Question of Decarceration: Inversions of Power in the Carceral State. Berkeley Law, Jurisprudence and Social Policy.


York, A. (2012, January 3). Plan to change three-strikes law moves toward November ballot. Retrieved September 16, 2016 from LA Times,


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