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Cruel and Unusual Punishment: The Shame of Three Strikes Laws

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White, who a decade before had scoffed at the idea that Gaines was at the "lower end of the mental scale in terms of the continuum" and insisted that Gaines was, in fact, "an opportunist of a more sophisticated caliber," went on in the letter to recommend that Gaines get in touch with the Stanford program through his original attorney. She had left the prosecutor's office and was working as a public defender at the time.

Not comprehending the importance of the letter from his old prosecutor, Gaines promptly forgot about the whole thing. When the Stanford lawyers reached out to him a year later on their own initiative, they were stunned to discover the letter from White, and even more surprised to find that White, who had since gone back to work for the prosecutor's office, wouldn't take their calls.

"To look at those documents side by side," says Emily Murphy, a Stanford law student who worked on Gaines' case, "it made us think about what it means for prosecutors to do their jobs and to zealously advocate on behalf of the state."

More than two years after Gaines first received the "I'm sorry" letter from his prosecutor, he was still behind bars. When I met him at the Sonoma County Jail – in a surreal visiting room where prisoners sit in darkness, appearing as silhouettes in small glass-and-concrete cubicles, while visitors in fully lit chambers yell at them through small, waist-high mesh screens – he was so out of it he could barely grasp the most basic questions. It took nearly five minutes for him to explain to his lawyers that he still hadn't had a shower at this new jail (he'd been transferred there for a court hearing) and that the local doctors had changed his meds.

Gaines' Stanford lawyers were a little troubled by the new medication. "Dale, do you know what they gave you?" asked Jessica Spencer, a law student who was now working his case.

Gaines shrugged. All you could see behind the glass were his teeth as he incongruously smiled at the question. "Was it for something physical, or mental?" Spencer asked.

He thought about that. "Something . . . mental," he whispered.

It would later turn out that in order for Gaines' jail doctors to consult with his normal prison doctors, he needed to make a request in writing. The only problem was, he had no paper. This issue had come up before, when Gaines tried to apply for acceptance into a post-release­ program. The only way to get paper was something straight out of Catch-22: He had to make a request – in writing.

Despite all this, the DA seemed to oppose Gaines' release, quoting an old report that said the "subject appears to be an easygoing man of limited natural abilities. However, it would appear that, in reality, he is an extremely sophisticated criminal who preys on charitable institutions."

Nevertheless, the court ignored the prosecutor and ordered Gaines released. Justice was served. It only took 16 years.

This gets to the heart of what went wrong in America in the years following the mandatory-sentencing and Three Strikes crazes. We removed the human element from the justice process and turned our courts into giant unthinking machines for sweeping our problem citizens under a rug.

And it isn't just in California, but all over the country, where there are countless instances of outrageous and brutal mandatory sentences for relatively minor crimes. Often, they're so ridiculous that even the judges imposing them publicly denounce them, like a 1997 Florida case in which a 27-year-old black woman named Stephanie George was given life for holding her boyfriend's cocaine stash. "Your role has basically been as a girlfriend," said Judge Roger Vinson, "so it does not warrant a life sentence." But Vinson had no choice, just like Massachusetts Judge Judd Carhart had no choice when he gave 48-year-old Michaelene Sexton 10 years for selling coke ("Ten years is an awful long time," the judge said. "When I look at this case compared to crimes of violence, I wonder"), or federal Judge James Todd, who gave a Texas pool-hall owner named Mike Mahoney 15 years for buying a gun 14 years after he was convicted for selling meth ("It seems to me, this sentence is just completely out of proportion to the defendant's conduct," said the judge).

Why did all of this happen? Some of this has its roots in a complex political calculation, in which the Democratic Party in the Clinton years made a Faustian bargain, deciding to abandon its old role as a defender of unions and the underprivileged, embrace more Wall Street-friendly deregulatory policies, and compete for the political center by pushing for more street cops, tougher sentences and the end of welfare – the same thing the Republicans were already doing. By the mid-Nineties, neither party was really representing, for lack of a better term, the fucked, struggling poor.

The end result of this political shift was an unprecedented explosion of the American prison population, from just more than a million people behind bars in the early Nineties to 2.2 million today. Less than five percent of the world's people live in the United States, but we are home to about 25 percent of the world's prisoners, a shocking number.

Another result was that instead of dealing with problems like poverty, drug abuse and mental illness, we increasingly just removed them all from view by putting them in jail. It's not an accident that so many of the most ridiculous Three Strikes cases are semicoherent homeless people or people with drug problems who came from broken homes. It wasn't a cost-efficient way of dealing with these issues – in fact, in California at least, it was an insanely, almost criminally expensive burden on taxpayers – but it was effective enough as a way of keeping the uglier schisms of our society hidden from view.

But these cases are resurfacing now, in "Tell-Tale Heart" fashion, to point an accusatory finger at us for the choices we made decades ago. In California, it wasn't just people like Judge Broadman or Ann Gallagher White who had attacks of conscience. The prosecutor in the Shane Taylor case had a similar change of heart. Ross Stores sent a letter supporting the release of a man who was sent away for life for stealing a pair of its baby shoes. There were numerous others. And in a way, the success of Prop 36 was an attempt by the whole state to make right nearly two decades of past wrongs.

The fact that some progress toward scaling back these draconian laws involving the poor and underprivileged is finally being made is coming at a time when there is an emerging controversy over the conspicuous nonpunishment of big bankers, notorious subprime lenders (many of them Californians) and other wealthy offenders is probably not an accident. One of the interesting results of the polling Mills commissioned last summer was that California voters were surprisingly unmoved by the issue of the cost of incarcerating Three Strikes inmates. "But they were intensely interested in the issue of fairness," says Mills. "That's one of the things we found out: People will pay for justice, no matter how much it costs. But it has to be fair."

Obviously, people who commit crimes should be punished. Even people who steal socks and Snow White videos should probably do time if they have priors, especially serious priors. But the punishment has to fit the crime, and the standard has to be the same for everyone. If a homeless crack addict like Norman Williams is going to get time for stealing road flares, they should leave the top bunk in his cell open for the guy who laundered money for the Sinaloa drug cartel at HSBC.

"People get so hung up on the concept of innocence," says Mills. "But it's intellectually uninteresting. What does matter is how we treat the guilty, and that's where we still have work to do."

This story is from the April 11th, 2013 issue of Rolling Stone.

To read the new issue of Rolling Stone online, plus the entire RS archive: Click Here

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ABOUT THIS BLOG

Matt Taibbi

Matt Taibbi is a contributing editor for Rolling Stone. He’s the author of five books and a winner of the National Magazine Award for commentary. Please direct all media requests to taibbimedia@yahoo.com.

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