Three Strikes and Sex Offenses: Lessons from California’s Proposition 66 Campaign
Issue #71, December 2004
According to the Department of Justice's 2003 prison statistics, one in every one hundred and forty U.S. residents is locked up. This has changed our communities and the labor pool so much that even President Bush has to support concrete reforms. There are rumors that a White House endorsed bipartisan legislation called, the Second Chance Act of 2004 is floating around somewhere in Washington. This bill acknowledges how difficult it is for formerly incarcerated people to find work upon release, and it reviews laws that keep people from receiving federal financial aid or state licenses for work if they have been convicted of a drug-related crime. If passed, it will commit $112 million for drug treatment and mentoring programs. Obvious flaws in the legislation include limited commitment of funds. It also ignores another viable alternative to this whole problem: stop locking people up to begin with. Since we know this isn't likely to happen anytime soon, anti-prison activists might find some small relief in a federal effort to create job opportunities for former inmates and expanded educational opportunities and rehabilitation for people convicted of drug offenses. The situation is so grim that we will take whatever meager reformist crumbs get thrown our way and try to work with them.
In California, Proposition 66, which was defeated during the November 2 election, would have reformed the draconian Three Strikes law. The pro-Prop. 66 people argued that this reform would apply to approximately 4,000 inmates. In a nutshell, the proposition would have accomplished three things: the state would redefine a third strike as a serious or violent crime; three strike offenders currently doing time for non-violent or unserious crimes could have their cases retried; and, finally, longer sentences for child sex offenders would be implemented. The proposition also requires the state to provide counseling for prisoners while in prison and for one year after they are released. The anti-Prop. 66 campaign was led by Gov. Arnold Schwarzenegger, Mark Klaas, whose murdered daughter Polly was the original inspiration for three strikes legislation, and the ever powerful prison guard's union who enjoy steadily increasing salaries in an agreement brokered by former Governor Davis and upheld by Schwarzenegger. They simply argued that passage of Prop. 66 would free about 26,000 offenders (including murderers and rapists) doing time under three strikes, six times more inmates.
For those who worked to pass Prop. 66, we found ourselves in an awkward bind of working alongside people in anti-war organizations who do not connect militarism abroad to the war raging here at home in poor communities of color. It's frustrating to witness someone get upset about U.S. soldiers' transgressions in Abu Ghraib, while they accept the routine human rights violations and deaths in our own prisons without batting an eye. Straightening out all of the misinformation was quite a challenge considering the "peace" community's relative lack of concern for prisoners (it was common to hear some pro-Prop. 66 progressives assure people they were still for three strikes, they just want to reform it), and Schwarzenegger's blitzkrieg of confusing anti-Prop. 66 commercials.
Now that the Proposition 66 campaign is over, it helps us reflect on California's current prison politics. The public was informed about the injustices of three strikes, and anti-prison activists were able to influence the overall debate on college campuses and in progressive circles to some degree. Also, we were able to see again (as if we need to) what we are up against here: money, power, and highly effective fear tactics. The campaign also provided an opportunity to clarify the discursive conflicts between the progressive feminist agenda and the abolitionist agenda. More specifically, the campaigns highlighted the danger of divide and conquer. During the campaign we saw a traditional and permanent women's and children's issue (sex offenses) conflict with the abolitionists' anti-incarceration/pro-rehabilitation perspective. Like in the later days of the women's suffrage and slavery abolitionist movements, many women's groups appear to have a different set of concerns than prison abolitionists. Now that the election season has passed, we have an opportunity to clarify and remedy these conflicting views and build stronger resistance to the prison industrial complex.
Taking Sex Crimes Seriously
Although activists who worked on Prop. 66 knew that it was merely addressing the tip of the iceberg; it would have been a concrete victory against the "let them all rot" solution. Because Prop. 66 supporters were focused on correcting the blatant lies about its basic tenets we missed opportunities to criticize the idea of increased sentences for child sex offenses. I believe they incorporated sex crimes into the proposition text for two major reasons. First, in anticipation of the pro-prison lobby's negative campaign, increased sentences for sex offenders, especially child molesters, assured that supporters were still tough on crime. The idea of letting people go free or softening crime laws is so counter-hegemonic that in order for people to swallow the pill of reform it needs to be accompanied with a tall glass filled with a new target group — child sex offenders.
The second reason is that many women's and children's groups were likely to support Prop. 66's promise to take sex crimes against children seriously. According to Alice Vach's Sex Crimes: Ten Years on the Front Lines Prosecuting Rapists and Confronting their Collaborators, 98% of rape victims never see their rapists serve a prison term.
It is frequently stated that going through the legal process after being raped is like being raped all over again. She argues that this is the one area of criminality where the victim's behavior, not the perpetrator's, is being judged. When it comes to child molestation, judging the victim's behavior is not so much the case, but complications arise due to the dubious status of the child's claims of victimization. This widespread denial of the seriousness of sex crimes is a reflection of the patriarchal devaluation of women's bodies found in all of our major social institutions. Although Prop. 66 specified sex crimes against children, women's and children's groups are uniquely invested in all sex crime related legislation.
In a political climate that dismisses the seriousness of sex crimes (our own Governor Schwarzenegger allegedly harassed and/or assaulted women and then used gubernatorial powers to crush the investigation) it is easy to jump to a "lock them up and throw away the key" logic when we discuss the latest rape or molestation case. Years ago, a female friend was raped and sodomized at gunpoint by two male college students on the outskirts of a large urban campus. I was so upset that I could only imagine the worst vigilante death for these rapists, although I am against the death penalty. The evidence was overwhelming; investigators had DNA samples, and a woman found and turned in photographs of the incident and the victim's engraved pearl necklace. The rape appeared to be a frat ritual or a serial rapist scenario since the same men previously raped two women.
Although the evidence was strong, it was supposedly tampered with and the case was immediately dropped. Perhaps the DA or some rich parents didn't want a high profile rape case with previous victims involved. The case was never prosecuted, so we never found out any more details. Welcome to the world of justice for rape victims. This is just one good example of why we get so angry and emotional about the issue. Just ask one in every three women.
While Prop. 66 specifies offenses against children, our political rhetoric routinely connects rape and child molestation. I thought Prop. 66 would pass due to emotions regarding sex offenses, frustration about budget priorities, and awareness about three strikes injustices. It lost because of our general climate of fear and scape-goating, the hallmark of this political era. Schwarzenegger and Mark Klaas consistently ran ads claiming it would release thousands of violent criminals — including rapists and molesters. An example of the blatant fear-mongering in the anti-66 ad campaign showed Schwarzenegger walking through a gallery of blown-up portraits of hardened-looking criminals, talking about the imminent release of tens of thousands of rapists and murderers. Actually, fear was used on both sides. Both pro and anti sides appealed to our fear of sexual crimes; they merely offered different remedies. One side argued that we should lock child sex offenders up longer, and the other side argued that we can't afford to release the ones who are locked up.
Sex Offender Registration
It is an understandable reaction to want the rapist/molester to suffer because rape/molestation victims have to suffer for the rest of their lives. But if we step back from our emotions and enter the world of statistical data and forward thinking, we can begin to ask some questions. Is increased prison time, and then extreme social stigmatization upon release, really the best approach to take with sex offenders?
Sex offender recidivism rates are well known: between 10-15 percent relapse after four or five years. Megan's Law cited this recidivism rate to establish a national registry for sex offenders. According to a recent lead article in the Sacramento News and Review about sex offender registration, California will produce a website with "names, photographs, criminal histories, and for the first time, addresses" by July 2005. Some counties are already doing this. In Sacramento the police provide a website with photographs of all registered sex offenders and their addresses. But there is little evidence that registration deters recidivism because there is little research. We do know registration causes extreme isolation for registered offenders. The News and Review article cites The Association for the Treatment of Sexual Abusers' finding that "intimacy deficiencies" — isolation — are a factor in recidivism.
Status quo logic suggests we increase sex offender sentences and place them in dehumanizing prison conditions without adequate rehabilitation options. Although Proposition 66 calls for counseling services for offenders, familiarity with California's track record suggests that these services will be nowhere near what is needed to do the job. Besides, how much "rehabilitation" can actually occur in the repressive authoritarian prison environment? And then when convicts get out, they will be extremely isolated, if not actively harassed, by people who know where they live. Will they become repeat offenders? Common sense suggests this is likely.
Background checks for people who want to work directly with children make sense. It is less clear what a registry with thousands of names covering a broad range of offenses will accomplish except setting further privacy violation precedents and continuing the punishment after the official time is done. I also worry that sex offender registration is approached as the magic bullet for keeping our children safe, meanwhile we are slashing after school program and community center budgets that literally keep them off the streets from the afternoon until dinnertime. People get hysterical at the prospect of sex offenders living in our neighborhoods, but they are less hysterical about our epidemic of violence against women and the mundane ways that children's needs are undermined by fiscally conservative social service and education cuts.
Another criticism of Prop. 66's sex offender focus is that increased sentencing for sex offenses could target men of color. Since black and Latino men are entirely overrepresented in prisons, it is likely that they will be overrepresented in sex crime sentencing as well. Familiarity with society's "Birth of a Nation" approach to race and sexuality should warn us about a racially disproportionate application of proposed increased sentencing for sex offenses. Because of entrenched racial stereotypes — the coveting black rapist and the hypersexual macho Chicano, for example — we need to be aware of how new legislations will further target already targeted groups.
This concern gets to the heart of the matter for prison abolitionists, and it distinguishes our analysis from prison reform advocates. We do not see racial and class disproportionality in prisons as something that can be corrected within the prison system, as if disproportionality is just a bump in an otherwise functional road. Since the abolition of slavery, punishment and prisons have been intimately linked to racialization processes, and the prison industrial complex is fundamentally about finding new ways to keep people of color locked up. When I mentioned this criticism of Prop. 66 to a class, a white woman asked me to "just leave race out of it for a moment" and listen to her defend increased sentences for sex offenders. I responded that leaving race out of a conversation about prisons is like leaving gender out of a conversation about rape. I want my students to realize that leaving race out of a conversation about prisons is like leaving race out of a conversation about U.S. chattel slavery.
Any feminist discussion of sex crimes should acknowledge the historical weight of racial stereotypes in false accusations, trials, and punishments: lynching, racist media coverage, and longer sentences for sex crimes committed by men of color against white women exemplify this point well. But this is not so easy when racism is part of white feminism's legacy in the United States. White feminists feed racial stereotypes when they attack high profile black men accused of sex offenses such as Clarence Thomas, Mike Tyson, O.J. Simpson, and Kobe Bryant. In general, white feminists' track record is particularly poor in applying anti-racist arguments to their own anti-rapist politics.
Abolitionist feminists frequently find ourselves caught in the crossfire of what may feel like two different paradigms: the focus on legal remedies for sex crimes and the focus on decriminalization and rehabilitation. These paradigms can be bridged if we realize the patriarchal diminution of sex crimes and the tough on sex crime discourse are two sides of the same coin. Diminution of sex crimes and the tough on sex crimes discourse both emanate from a punitive, scape-goating mentality that simplistically ignores either the needs of victims or the needs of perpetrators. I want to argue that a strong abolitionist feminist vision will advocate rehabilitation of all offenders — sex offenders included — and criticize progressive reform efforts if rehabilitation isn't present in the political rhetoric. I publicly supported Prop. 66 but simultaneously criticized it for not going far enough as a reform: it maintained three strikes, retained the tough on crime ideology, and failed to address how our prison system structurally impedes rehabilitation efforts. (I look forward to the proposition that calls for transforming our prisons into schools, community centers, job training sites, and real rehabilitation centers.)
Regarding the controversial issue of sex offender registration, we need to collectively clarify which privacy rights we are willing to sacrifice for a sense of security. Whose business should be easily accessible online and why? While Proposition 66 stole the spotlight in this election, Proposition 69 passed without a problem. This proposition, opposed by the American Civil Liberties Union, prison rights, and privacy groups, calls for the collection of DNA from all people arrested for a felony crime in California: yes, simply arrested, not necessarily guilty. So we have online registries for sex offenders and DNA collection of people arrested for felonies. What's next, scarlet letters for former inmates?
We are living in precedent setting times. We need to combine our emotional rage about sexual violence with our rage against the state's growing control over our lives. We also need to create a more humane and forward thinking response than the reactionary "they're all monsters" response. Common sense is just one good reason for being humane. But there's also a political reason that requires a deeper analysis. As we already know, most people don't become sex offenders overnight. They are cultivated in failing institutions such as abusive nuclear families, insensitive, overcrowded schools, neglectful if not violent foster homes and group homes, and then, finally, our juvenile justice and adult prison facilities. Somewhere along the way, and probably in several areas of their lives, others have failed them. We will fail if we do not acknowledge this.
Michelle Renee Matisons teaches in the Women's Studies Department of California State University, Sacramento.