An analysis of TV ad on Proposition 66

Wednesday, Oct. 27, 2004 | 10:31 a.m.

Gov. Arnold Schwarzenegger's political fund, the California Recovery Team, is donating $1 million to finance two television ads opposing Proposition 66, a measure softening California's three-strikes law by altering crimes required to get a life term, or "three-strikes" sentence. The proposition is one of 16 on California's statewide ballot Nov. 2. Details of the ads:

- Titles: "Early Release" and "Criminals."

- Length: 15 seconds each.

- Aired: Starting Wednesday statewide.

- Dominant images: Both commercials feature the governor, reading almost identical scripts, telling viewers that 26,000 "dangerous criminals" would released from prison if Proposition 66 passes.

- Script for "Early Release:" Schwarzenegger: "Under Proposition 66, 26,000 dangerous criminals will be released from prison. Child molesters. Rapists. Murderers. Keep them off the streets and out of your neighborhood. Vote No on 66. Keep them behind bars."

-Script for "Criminals:" Schwarzenegger: "Murders. Rapists. Child molesters. Twenty-six thousand dangerous criminals will be released from prison under Proposition 66. Keep them behind bars."

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Analysis: Proposition 66 changes California's three-strikes law to require that a third felony conviction sparking a 25-year-to-life term would have to be serious or violent, such as murder, rape, kidnapping, armed robbery and other heinous acts. Under the 1994 voter-approved law, anybody convicted of a felony - including shoplifting - after having been convicted of two serious or violent felony crimes, would get at least a 25-year-to-life term. Proposition 66, unlike the 1994 original law, requires a violent or serious felony for a second strike as well. Second strikers receive double the normal sentence.

It is undisputed that about 4,000 inmates currently serving life for convictions of nonviolent sentences will be released or resentenced to terms as if the three-strikes law never existed. Some of those felons have prior convictions for rape, molestation and murder.

Attorney General Bill Lockyer, the California District Attorney's Association, Schwarzenegger and others say an additional 22,000 inmates - those serving enhanced sentences for a second-strike that would no longer count as a strike - would also be eligible for resentencing. Proposition 66 supporters and the nonpartisan Legislative Analyst dispute that, saying the resentencing aspects of the law only apply to third strikers serving a life term for a strike that Proposition 66 would not count as a strike.

Defense attorneys are gearing up to attack the law if it passes to include second strikers for reduced terms. They will make those bids in light of vague language in the measure's text and because of other legal theories.

In the end, it will be up to the courts to decide whether second strikers are included.

But, clearly, it is an exaggeration to suggest that "26,000 dangerous criminals" would be released because the statement assumes second strikers are eligible for resentencing and presumes that the second strikers and third strikers that might be freed are all dangerous.

The measure's supporters say that, if Proposition 66 passes, Schwarzenegger, Lockyer and the CDAA will change course and declare the resentencing aspect of the measure does not apply to second strikers. The measure's backers predict Schwarzenegger, Lockyer and the state's prosecutors will fight in court any attempts to include second strikers.

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Analysis by AP Legal Affairs Writer David Kravets.