This post is for those naive souls who have told me that they didn’t think the dangerous upcoming Three Strikes initiative was likely to pass.

This is one time I’d like to be wrong, but I’m not. Allow me a small, mordant chuckle as I tell you: the Field Poll today released the results of a poll regarding the likely success of this initiative. Voters overwhelmingly favor the initiative — 76% in favor to 14% against.

How can this be? The answer is simple: people don’t understand what the initiative is going to do. The initiative is a pig in a poke — bankrolled by a rich guy trying to get his son out of prison quick, and chock-full of frightening loopholes written by eager defense attorneys. Many dangerous real-life criminals will be released if it passes. However, even the pollsters don’t understand what the initiative is going to do — so they misrepresent the effect of the initiative to the people answering the poll questions.

Here’s what likely voters were told by the pollsters for the Field Poll:

This initiative would amend the three strikes law to require increased sentences after a third offense only when the current conviction is for a specified violent or serious felony. Only prior convictions for specified violent or serious felonies would qualify for second and third strike sentence increases, and allows for re-sentencing of persons if prior convictions used to increase sentences no longer qualify as violent or serious felonies. It also increases punishment for specified sex crimes against children. Fiscal impact: unknown but significant savings to the state ranging from several tens of millions to several hundreds of millions of dollars annually. If the election were being held today, would you vote YES or NO on this proposition?

The two bolded portions of the question are both very misleading.

The first portion in bold severely under-represents the size of the group of criminals eligible for re-sentencing under the initiative. Poll respondents are told that inmates will be re-sentenced if the “prior convictions used to increase [their] sentences no longer qualify as violent or serious felonies.” This suggests that the only inmates who will be re-sentenced are those whose previous strikes will no longer be considered strikes under the terms of the initiative. But the initiative also provides for the re-sentencing of anyone who received a strike sentence for a current conviction that is not itself a “strike” — no matter how recent or violent or numerous the previous strikes were.

If this seems abstract and hard to grasp, let me give you an example to illustrate the point. Let’s say a criminal has six prior strikes for crimes like armed robbery, kidnapping, rape, and arson. With these strikes on his record, he evades police in a high-speed chase during which he causes an accident that cripples an innocent bystander. He receives a 25-to-life sentence for the evading charge.

After the initiative is passed, he will be re-sentenced to a maximum term of five years (actual time served: 2 1/2 years). It doesn’t matter whether his prior strikes are reclassified as non-strikes under the initiative. Regardless, he will be re-sentenced because his final conviction — the evading case — is no longer considered a “strike” under the terms of the initiative.

In most cases, criminals like the one described here will get out of prison immediately after the initiative passes — as soon as they can get to court.

Because this concept is so abstract, and the poll question is worded in such a confusing manner, it is not clear that this misrepresentation caused poll respondents to change their answers. However, you need to understand this first misrepresentation in order to grasp the full extent of the duplicity inherent in the second major misrepresentation in the poll question — a misrepresentation that probably had a huge impact on people’s responses.

The second misrepresentation is the second part in bold above, promising “significant savings to the state ranging from several tens of millions to several hundreds of millions of dollars annually.” This portion of the question is highly misleading, because it describes the fiscal impact of the proposition solely in terms of massive savings to the state, without taking into account the cost of the crimes that will be committed by the people whom this initiative will release.

For example, this initiative will result in a certain number of people being murdered. (You did realize that, didn’t you?) How many, we don’t know for sure — but we know there will be some. People will also be raped, robbed, carjacked, kidnapped, burglarized, and beaten by criminals released by this initiative. This is not scare talk — this is simple fact.

What will the fiscal impact be? It would take a team of statisticians to figure this out, but there are some facts we can look at to get an idea.

It has been conservatively estimated that over 26,000 criminals will be released pursuant to this initiative, within the first month or two after its passage. This includes 4,229 inmates serving life sentences, and 21,973 serving “second strike” sentences. [There is some question about this, actually -- see UPDATE x2 below.] Contrary to what the media has tried to tell you, these people are not non-violent drug users. They’re rapists, robbers, arsonists, kidnappers, and murderers. The voters should take into account the fiscal impact of the crimes that will inevitably be committed by those released.

As the Supreme Court of the United States observed in Ewing v. California (emphasis mine):

In 1996, when the Sacramento Bee studied 233 three strikes offenders in California, it found that they had an aggregate of 1,165 prior felony convictions, an average of 5 apiece. See Furillo, Three Strikes–The Verdict’s In: Most Offenders Have Long Criminal Histories, Sacramento Bee, Mar. 31, 1996, p. A1. The prior convictions included 322 robberies and 262 burglaries. Ibid. About 84 percent of the 233 three strikes offenders had been convicted of at least one violent crime. Ibid. In all, they were responsible for 17 homicides, 7 attempted slayings, and 91 sexual assaults and child molestations. Ibid. The Sacramento Bee concluded, based on its investigation, that “[i]n the vast majority of the cases, regardless of the third strike, the [three strikes] law is snaring [the] long-term habitual offenders with multiple felony convictions … .” Ibid.

The Sacramento Bee’s analysis appears to have been completely random, and therefore roughly representative of third strikers as a whole. I have never seen any evidence that the criminal histories of those incarcerated for current serious or violent felonies are more severe than those incarcerated for current felonies that are neither serious nor violent. If you extrapolate the Sacramento Bee’s numbers for 233 third strikers, based on the estimated 4,229 third strikers that will be released under the initiative, you see that those 4,229 inmates who will be released are likely responsible for over 21,000 felonies in the aggregate — including over 5,800 robberies, over 4,700 burglaries, over 300 homicides, over 160 attempted murders, and over 1600 sexual assaults and child molestations.

And this analysis doesn’t even address the estimated 21,973 second-strikers who will also be released upon the passage of the initiative.

These people are going to commit more crimes when they are released. As the Ewing court observed: “According to a recent report, approximately 67 percent of former inmates released from state prisons were charged with at least one “serious” new crime within three years of their release.”

A good statistician with access to detailed nationwide crime data could probably come up with a reasonable estimate of the number of people who will be murdered, raped, robbed, kidnapped, or beaten by criminals released by this initiative, during the first five years after its passage. Now there’s a study I’d like to see. If you think releasing over 26,000 hardened criminals statewide won’t cause a jump in violent crimes, then tell us what you’re smoking, because it must be good stuff.

And the inevitable crimes caused by this initiative will have a huge fiscal impact on the state — a fact completely ignored by the poll. How do we put a number on this? Well, a federal study undertook the difficult task of attempting to assign monetary values to the costs associated with different serious crimes. For example, the study estimated that the average cost to society of a single murder is almost $3 million, combining tangible losses such as productivity with intangible losses such as quality of life. Sexual abuse crimes are deemed to cost almost $100,000 per crime. Robberies are deemed to cost about $8,000 per robbery. And so forth.

Applying these numbers, one estimate determined that the Three Strikes law saved California taxpayers several billion dollars in the years of 1994 and 1995 alone.

Whether you agree with those numbers or not, it’s hard to deny that the crimes that would inevitably result from this proposed watering down of Three Strikes will cost an astronomical amount of money. Again, it would take a statistician to quantify it with a reasonable degree of accuracy, but it is obvious that the cost to taxpayers could easily exceed several hundred million dollars over the first five years after the initiative’s passage. Balance that against the possible savings of “tens of millions to several hundreds of millions of dollars annually” due to lower costs of incarceration.

Who knows what would be the results of a poll that told people the truth about these matters?

In any event, the lesson is clear: supporters of the Three Strikes law cannot be complacent. This initiative will not be defeated absent something startling — a huge influx of money, a strong campaign waged by Governor Arnold, or a massive and spirited talk-radio campaign. Chances are, even all three will not be enough.

The road ahead will be tough — so tough that it’s tempting simply to give up. But we can’t. Although it will be a difficult and expensive fight, it’s a fight worth fighting. The safety of the citizens of California is at stake.

UPDATE: I have discovered that the misleading description by the Field Poll derives from the Attorney General’s summary, which will appear on the ballot. Sigh.

UPDATE x2: I have done an in-depth analysis of whether the law provides for resentencing of second-strikers, here. My conclusion: the law is most reasonably read as not authorizing the resentencing of second-strikers. However, it is potentially ambiguous, and a court may well rule that second-strikers must be released. So take the estimate of 26,000 criminals who will be released early with a grain of salt. It will be at least 3500, and may be as many as 26,000, depend on how the courts rule on potentially ambiguous language.