California Proposition 36, 2012

Proposition 36, also titled A Change in the "Three Strikes Law” Initiative, was a California ballot measure that was passed in November 2012 to modify California’s Three Strikes Law (passed in 1994). The latter law punishes habitual offenders by establishing sentence escalation for felonies that were classified as “strikes”, and requires a mandatory minimum sentence of 25 to life for a "third-strike offense."

Proposition 36 adjusted the law so that, in order to be classified as a third strike, the offense must be a “serious or violent felony”. This serious or violent clause does not apply to defendants previously convicted of rape, murder or child molestation. Additionally, the initiative added a provision in the California Penal Code that establishes a review process of sentences for people currently serving life sentences as a result of a nonviolent or non-serious third-strike offenses; it allowed courts to provide shorter sentences or release.

Supporters of the proposition included Steve Cooley, the LA district attorney at the time, George Soros, and the NAACP. Opponents included Henry T. Nicholas, the author of California's Victims Bill of Rights, the California Police Chiefs’ Association, and the Criminal Justice Legal Foundation.

The proposition was passed on November 6, 2012, with 8,575,619 people (69.3%) voting Yes and 3,798,218 people (30.7%) voting No. It was passed by a majority of voters in every county.

Proposition 36 was predated by two major trends since the late 20th century: rapidly increasing incarceration rates and the expansion of the private prison industry. Beginning in the late 1970s, President Richard Nixon announced the “war on drugs,” which led to 'tough on crime' policies by a range of politicians. Changes included mandatory minimum sentencing, harsh penalties barring inmates from being granted parole or probation, and stricter punishments for drug users both in and out of the prison. Neither party wanted to appear "soft on crime", and criminalization of minor offenses continued, resulting in high rates of incarceration. In response to but surpassing the growing numbers of inmates, the private prison industry expanded nearly 1600% between 1990-2009.

By 2011, private prison companies were responsible for about 6% of state prisoners and 16% of federal prisoners.Corrections Corporation of America (CCA), for example, in 2011 owned and operated 66 facilities, and it earned $1.7 billion in revenue. The rate of private prison expansion far outpaced the rate of overall growth in incarceration. By 2015, the two largest prison companies derived from 45 to 50% of their revenues from federal contracts and had incentives to keep prisons full.

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