The issue: Should California eliminate the "Three Strikes and You’re Out" law?
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A conservative's perspective:
After 12-year-old Polly Klaas was kidnapped from her home during a slumber party and murdered by a lifetime criminal in 1993, the California Legislature moved quickly to pass a law intended to prevent such criminals from being released after incarceration.
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“Three Strikes and You’re Out” was approved by the Legislature in March of 1994, and in November of that year, voters overwhelming passed a nearly identical law, Proposition 184.
Since that time, Three Strikes legislation has consistently faced criticism and attempts to weaken it despite its immensely positive results.
In the years since passage, crime has drastically declined in California. Critics point to a national trend and note that crime has also declined in states without Three Strikes legislation.
However, according to the nonpartisan Legislative Analyst’s Office, violent crime in California decreased by 51 percent from 1991 to 2003, compared with the national decline of 37 percent. In California, there were actually fewer felony criminal trials in 2002 than in 1993 despite population growth in the millions.
Three Strikes keeps recidivist criminals off the streets for longer periods, preventing them from committing additional crimes and harming society.
Studies estimate that in the first decade of its enforcement, more than 2 million would-be crime victims in California were spared.
Three Strikes accomplishes this through a system of “enhanced sentencing.” If a person has one previous serious or violent felony conviction, the sentence for any new felony conviction is doubled, making him a “second striker.”
If a person has two or more previous serious or violent felony convictions, the sentence for any new felony conviction is life imprisonment, with the minimum term being 25 years. He would be a “third striker.”
This system is much stricter than prior law. Previously, a person convicted of two serious felonies, such as burglary of a residence and robbery, who then committed a third serious felony, such as another robbery, would only have been sentenced to seven years.
Furthermore, such a person could be released and back onto the streets after only 31⁄2 years for “good behavior.”
Three Strikes prevents this situation by taking the focus off the crime and putting it on the criminal. It forces the justice system to consider a person’s criminal history when sentencing that individual. This is a positive thing for California.
After upholding a Three Strikes conviction in Ewing v. California, the United States Supreme Court noted another positive consequence of the law in California: More parolees have been leaving the state than entering it. This is likely due to their fear of being prosecuted further under the law.
Critics blame Three Strikes for prison overcrowding and the rising cost of corrections in California. However, there are fewer than 9,000 third strikers in California prisons, fewer than 6 percent of the total prison population.
Three Strikes is estimated to cost less than a quarter of the original projection.
It should be reiterated that second- and third-strikers have been convicted of multiple serious and/or violent felonies. Because of the high rate of recidivism, strikers would likely be in prison regardless of whether Three Strikes was on the books.
Three Strikes prevents career criminals from costing society in the form of human suffering, crime scene investigation, apprehension and prosecution.
Movements to repeal or weaken the law claim it’s too harsh and is locking up nonviolent and/or non-serious offenders. Proponents of these movements simply don’t understand the law.
Aside from the fact that all strikers have been convicted of serious and/or violent felonies, the law has safeguards that give prosecutors and trial judges discretion in choosing when to consider a felony a strike.
For instance, they can choose to disregard previous felonies when issuing a strike if they determine them to be nonserious, or for a variety of other reasons in the “furtherance of justice.”
Strikers with nonviolent drug convictions may also be eligible to go through treatment instead of serving prison time.
Often, the media has played into the hype and propagated stories of petty criminals being locked up for life for something as small as stealing videotapes. The truth of that case, however, is quite different.
In Lockyer v. Andrade the defendant had nine previous convictions, including three felony residential burglaries, several drug-trafficking offenses and an attempted escape from prison. His final strike was for felony theft of videotapes that were small in value, but his pattern of committing serious crimes and recidivism justified his life sentence.
Critics bemoan the fact that this person’s third strike was not for a serious or violent offense. However, why should we wait for this habitual criminal to commit another serious or violent crime before locking him up for good? Three Strikes is intended to prevent another tragic situation like Polly Klaas’, not enable it.
John Allan Peschong served in President Reagan’s administration and later as a senior strategist for the campaigns of President George W. Bush. He is a founding partner of Meridian Pacific Inc., a public relations and public affairs company, and serves as chairman of the San Luis Obispo County Republican Party.
“Yeah, if not, I’d still be there, staring at the walls,” Williams said. “Never had visitors before you came. I didn’t know what the visiting room looked like.”
IN 1994, the three-strikes ballot measure in California passed with 72 percent of the vote, after the searing murder of 12-year-old Polly Klaas, who was kidnapped from her slumber party and murdered while her mother slept down the hall. When the killer turned out to be a violent offender recently granted parole, support surged for the three-strikes ballot initiative, which promised to keep “career criminals who women, molest children and commit murder behind bars where they belong.”
The complete text of the bill swept far more broadly. Under California’s version of three strikes, first and second strikes must be either violent or serious. These include crimes like murder, attempted murder, rape, child molestation and armed robbery. But in California, “serious” is a term of art that can also include crimes like Norman Williams’s nonconfrontational burglaries. And after a second-strike conviction for such an offense, almost any infraction beyond jaywalking can trigger a third strike and the life sentence that goes with it. One of Romano’s clients was sentenced to life for stealing a dollar in change from the coin box of a parked car.
California’s repeat-offender law is unique in this stringency. Twenty-five other states have passed three-strikes laws, but only California punishes minor crimes with the penalty of a life sentence. About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early.
In 2004, reformers put an initiative on the ballot, Proposition 66, that would have reduced the number of people going to prison for life by removing nonviolent property and drug offenses from the list of three-strikes crimes. Gov. attacked the ballot measure. He credited three strikes for a major drop in crime — to the frustration of most experts, who point out that California’s dip began in 1991, well before three strikes passed, and ended in 2000. “The great weight of empirical studies discounts the role of three strikes in reducing crime,” states a 2004 report signed by six criminal-law professors, including Franklin Zimring at U.C. . Still, Prop 66 fell short, with 47 percent of the vote.
Now California is in the midst of fiscal calamity. Supreme Court Justice Anthony Kennedy, who had been a judge in California, recently bemoaned state sentencing and spending on prisons. In an address at , he said that “the three-strikes law sponsor is the correctional officers’ union, and that is sick!” And yet Schwarzenegger has vowed not to touch the law. and Jerry Brown, the leading Republican and Democratic contenders to succeed him in November, are just as unbending.
IF THERE’S A WAY to reform three strikes, it may follow Norman Williams’s route out of prison. Michael Romano, who is 38, got his client released without opposition from the L.A. district attorney by forging a working relationship with Cooley’s office. The 63-year-old Republican prosecutor seems an unlikely ally for a young defense lawyer. He joined the D.A.’s office straight out of law school. His office notched more death sentences last year than the state of , and his lunchmates include , the former governor who signed three strikes into law. Yet despite his conservative bona fides, Cooley shares the conviction that some number of third-strike offenders like Norman Williams don’t belong in prison for life.
After three strikes became law, Cooley watched one of his colleagues in the D.A.’s office prosecute Gregory Taylor, a homeless man who at dawn one morning in 1997 went to a church where he’d often gotten meals and pried open the door to its food pantry. The priest later testified on his behalf. Taylor’s first crime was a purse-snatching; his second was attempting to steal a wallet. He didn’t hurt anyone. Taylor was sentenced to life. “It was almost one-upmanship, almost a game — bye-bye for life,” Cooley says, remembering the attitude in the office.
Three years later, Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy. The L.A. district attorney’s office no longer seeks life sentences for offenders like Norman Williams or Gregory Taylor. The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent. No other prosecutor’s office in California has a written policy like Cooley’s, though a couple of D.A.’s informally exercise similar discretion.
It’s a mistake, though, to cast Cooley as a full-tilt reformer. He opposed Prop 66 for ignoring a defendant’s criminal history. Instead, in 2006, he offered up his own bill, which tracked his policy as D.A., taking minor drug crimes and petty theft off the list of three-strikes offenses unless one of the first two strikes involved a crime that Cooley considers hard-core. For staking out even this middle ground, Cooley became prosecutor non grata among his fellow D.A.’s. No district attorney, not even the most liberal, supported his bill, and it died in Senate committee.
Cooley could once again pay a price for his three-strikes record. This spring, he announced his candidacy for California attorney general. His Republican rivals have hammered him for his moderate stance. “He’s acting as an enabler for habitual offenders,” State Senator Tom Harman told me. “I think that’s wrong. I want to put them in prison.” The race has developed into a litmus test: for 15 years, no serious candidate for major statewide office has dared to criticize three strikes. If Cooley makes it through his party’s primary on June 8 — and especially if he goes on to win in November — the law will no longer seem untouchable. If he loses, three strikes will be all the more difficult to dislodge.
MICHAEL ROMANO has another, complementary strategy for changing the law. He has won victories for 13 three-strikes lifers in two years, 5 of them with the help of Cooley’s office, and he sees that small number of victories as making a case for larger reform. (He was on a panel I moderated at Yale Law School last month.) While that may sound far-fetched, the tactic has worked before. Romano’s boss, Lawrence Marshall, helped prove the innocence of 13 death-row inmates in in the late 1990s. His work set in motion a reassessment of the death penalty. A result was a statewide moratorium on executions that has held for a decade. “The hardest step is to get people’s attention,” says Marshall, associate dean for clinical education at Stanford. “And you can only get it with sympathetic cases.”
Romano started thinking about three strikes when he clerked for Judge Richard Tallman on the U.S. Court of Appeals for the Ninth Circuit in 2004. One afternoon, Romano watched his boss and two other judges quickly dispense with routine matters. One of them was a three-strikes appeal. “This guy, Willie Joseph, was doing life for aiding and abetting a $5 sale of crack cocaine,” Romano remembers. Legally speaking, his case for release was so weak that it took the judges “less than a few minutes” to reject the appeal.
And yet Willie Joseph’s life sentence was effectively the same as the punishment imposed on the most vicious killers in California. While 694 convicted murderers sit on the state’s death row, only 13 have been executed since the Supreme Court allowed for reinstatement of the death penalty in 1976. The 3,700 nonviolent, nonserious three-strikers serving life in California outnumber the 3,263 death-row inmates nationwide.
By working with three-strikers, Romano is trying to highlight the plight of criminals he sees as more pathetic than heinous. “I think about explaining to my kids what I do, and I see no moral ambiguity,” Romano says about his work. Capital defendants, of course, deserve representation, he explains. “But there are other lives to be saved, of people who haven’t done horrible things, who haven’t actually hurt anyone.”
In practical terms, Romano points out, the difference between being convicted of capital murder and a small-time third strike is this: a murderer is entitled to a far greater share of legal resources. California spends at least $300,000 on the defense side of a capital murder trial. The courts give extra scrutiny to each capital appeal that comes before them. And it’s only in death-penalty cases that the state pays lawyers to file a writ of , the route to challenging a conviction once direct appeal has been exhausted.
A three-strikes case, by contrast, is just one more file in the stack on a public defender’s desk and a judge’s docket. Romano has a client whose appellate lawyer cut and pasted into her brief for him the more serious criminal history of another man — incorrectly telling the judges that her client was far more violent when he actually was.
In court, Romano and his students don’t simply argue that their clients are minor offenders who don’t deserve to spend the rest of their lives in prison. That route to release is mostly blocked by the Supreme Court’s twin rulings on three strikes. In 2003, the justices voted 5-4 to reject the argument that three strikes violates the Eighth Amendment’s protection against cruel-and-unusual punishment. Because of criminal histories, the high court let stand the life sentences for Leandro Andrade, convicted of a third strike when he shoplifted videotapes from two Kmarts, and Gary Ewing, who walked out of a store with three clubs in a leg of his pants.
But the California Supreme Court has left open a different route to appeal. In 1998, the court told trial judges who were weighing a bid for leniency at sentencing after a three-strikes conviction that they could consider whether a defendant’s “background, character and prospects” place him outside the “spirit” of three strikes.
Romano argues that, as in capital cases, his clients deserve to ask for lesser sentences based on “mitigating evidence” — often of child abuse, mental illness or . Romano’s students track down clients’ old files, ask about their childhoods and pry confirmation out of family members. From Norman Williams’s juvenile files and probation reports, Romano’s students pieced together a story of unbroken woe. The 8th of 12 children, Williams grew up with a mother who was a binge drinker. She pimped out Williams and his brothers to men she knew. A social worker wrote, “These men paid the boys money to perform anal intercourse on the boys and they . . . gave the money to their mother for wine.” As an adult, Williams became a cocaine addict and lived on the streets of Long Beach.
Romano’s students laid out this mitigating evidence, which hadn’t been introduced at trial, in a 56-page habeas brief before the state court in Long Beach last year. They got back a one-sentence order denying their claim.
Frustrated, Romano took the habeas petition to one of Cooley’s deputies, Brentford Ferreira. Would he agree that after 12 years in prison, Williams had done enough time? Would he say so to the judge?
Ferreira, a 24-year veteran prosecutor, fired back with questions of his own. “I said, O.K., what you’ve really shown me is that all this guy knows how to do is steal,” he remembers. “So why should I let him out? What are you going to do for him?” Romano knew that Ferreira was right. If just one of his clients got out and hurt someone the whole project would look menacing rather than crusading. Defense lawyers don’t usually act like social workers, but it was vital for Romano and his students to come up with a plan and a home for Williams, from the moment he walked out of Folsom.
Romano’s efforts to help Williams succeed on the outside led him to Eileen Richardson. Once the C.E.O. of Napster, she now runs a $500,000 program, the Downtown Streets Team, which contracts with the city of Palo Alto and local nonprofits to provide janitorial services. The work is done by former offenders and homeless people. Richardson pays them in rent subsidies and and gift cards. They attend a weekly support meeting and wear different colored T-shirts as they move up a “ladder of success.”
With Richardson’s promise to give Williams a try, Romano persuaded Ferreira to go with him to see the judge in Long Beach. The prosecutor’s support made the difference: Williams was resentenced to time served. Shortly after he left Folsom a year ago, he started on the Streets Team mopping and waxing the floors of a local shelter. Richardson says Williams hasn’t missed a day of work since.
IF STEVE COOLEY wins the Republican primary for attorney general, on almost every issue — most visibly the death penalty — he’ll run to the right of his probable Democratic opponent, the San Francisco district attorney Kamala Harris. But on three strikes, Cooley will run to Harris’s left. (She didn’t support his 2006 proposal, though she is one of the prosecutors who, on a case-by-case basis, refrains from seeking a life sentence for some nonviolent three-strikers.) It’s a reminder of how far the prosecution of Gregory Taylor, the homeless man who broke into the church, has taken Cooley from the expected comfort zone of a prosecutor.
Cooley is couching his support for amending three strikes statewide more carefully during campaign season. “Any changes to the three-strikes law will have to be in the context of overall prison reform,” he told me in March. At the same time, Romano and Families to Amend California’s Three Strikes, the group that fought for Proposition 66, are increasingly interested in using Cooley’s Los Angeles policy as the basis for a new statewide reform effort in 2012, because it suggests a way to reserve life sentences for the three-strikers who have committed crimes of violence.
Between 2001 and 2008, the Los Angeles D.A.’s office automatically sought life sentences for about 5,400 repeat offenders whose third strike was violent or serious. The office also screened 13,900 cases in which the third strike crime was neither violent nor serious, to find out whether the defendant had a past record of hard-core crimes. During these years, prosecutors asked for life in only 25 percent of these cases. The other 75 percent are the nonviolent three-strikers whom the law could safely be amended to spare, Romano argues. “Those are the folks who shouldn’t be doing life,” he says. If Cooley becomes attorney general, he’d have more clout to put behind a 2012 reform initiative, if he chose to.
Norman Williams will soon move into his own apartment in Palo Alto. None of the other clients for whom the Stanford clinic has won release have gotten in trouble. And Romano and his students recently started representing Gregory Taylor, who is still serving life in prison.
he’s out In an online video, Norman Williams talks about being released from prison after being sentenced to life.Continue reading the main story