A day after California voted to soften its three-strikes sentencing law, defense lawyers around the state Wednesday prepared to seek reduced punishments for thousands of offenders serving up to life in prison for relatively minor crimes.

The process of asking courts to revisit old sentences could take as long as two years and benefit roughly 3,000 prisoners. They represent about a third of incarcerated third-strikers.

                                                                                                                                                                Proposition 36 garnered about 69% of the vote. The initiative won in all 58 counties, amending one of the nation's toughest three-strikes laws, one that had overwhelming voter support when it was approved in 1994 amid heightened anxiety over violent crime.

"People want a fair and just criminal justice system," said Michael Romano, who helped write the proposition and runs a Stanford Law School project that represents inmates convicted of minor third strikes. "The passage of Proposition 36, especially by its margin, has given some hope … to people behind bars who have been forsaken by their families and society."

Courts can reject a request to reduce a sentence if they determine the prisoner is a danger to public safety. Inmates with prior convictions for rape, murder and child molestation cannot be released under the measure.

"This is not going to open the prison floodgates," said Garrick Byers, a senior attorney with the Fresno County public defender's office.

Byers, who said he spoke for himself and not his office, received several calls from relatives of third-strikers Wednesday seeking help for loved ones and said he suspected that other attorneys around the state received similar requests.

In Los Angeles County, the public defender's office estimates 500 to 525 former clients could seek reduced sentences. Hundreds more represented by private lawyers or the county's alternate public defender's office when they were originally sentenced under the law could also head back to court.

Although defense lawyers have plenty to do in the short term, Los Angeles County Public Defender Ron Brown said he expects the new law will have little impact on future cases. The county's prosecutors have followed a general policy of not seeking life sentences for relatively minor strikes since Steve Cooley became district attorney in 2000.

"I don't see a major sea change for L.A. County," Brown said.

The three-strikes law targets offenders previously convicted of at least two violent or serious crimes, such as rape or residential burglary. Proposition 36 took aim at what critics have called its most unfair feature by changing the law so that offenders whose third strikes were relatively minor, such as shoplifting or drug possession, could no longer be sentenced to 25 years to life in prison. Offenders convicted of third strikes that are serious or violent can still receive the lengthy prison terms.

Mike Reynolds, whose daughter's 1992 murder led him to spearhead the creation of three strikes, said he believed many voters were misled to think Proposition 36 was a tough-on-crime measure. He predicted the initiative would undermine an important deterrent and prevent prosecutors from locking up repeat offenders before they had the chance to hurt new victims.

"This was a great day for criminals and their attorneys," Reynolds said.

On the same day voters decided to ease one of California's iconic sentencing laws, they opted against abolishing another. Proposition 34, which sought to replace the death penalty with life in prison without parole, lost 53% to 47%. The initiative drew strong support in Los Angeles and San Francisco Bay Area counties but failed to win almost anywhere else.

Dan Schnur, who heads the Jesse M. Unruh Institute of Politics at USC, noted that the measure would have benefited some of the state's most notorious killers while Proposition 36 involved inmates convicted most recently of relatively minor crimes at a time of public concern about overcrowded prisons and state budget woes.

"Voters seem willing to make adjustments in sentencing procedure in order to save money but they weren't ready to take on their own visceral support for the death penalty," Schnur said.

Supporters of capital punishment called on Gov. Jerry Brown to adopt a new method of lethal injection and the Legislature to pass a law limiting the appeals of death row inmates. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said a new ballot measure seeking such reforms may be necessary if officials refuse to take action to speed up executions.

Court rulings on the state's three-drug method of lethal injection have blocked executions since 2006.

Scheidegger called Tuesday's vote "too close for comfort" but suggested that many voting for Proposition 34 did so because they perceived the system as broken.

"I think a big chunk of that vote is people who would be in favor of a fix," he said.

Opponents of the death penalty said they would not abandon their cause and were heartened by how close the vote was. Natasha Minsker, the campaign manager for Proposition 34, said early voting doomed the measure because the campaign did not have enough money to run advertising until the final days.

Still, Minsker said she could not see a resumption in executions any time soon. Drug makers have stopped selling their products for executions, making it impossible for California to proceed, she said.

"The problems for California lethal injection procedures are going to continue for as long as we can see," she said.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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