Cruel and Unusual Punishment: The Shame of Three Strikes Laws

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A national craze was born. By the late Nineties, 24 states and the federal government had some kind of Three Strikes law. Not all are as harsh as the California law, but they all embrace the basic principle of throw-away-the-key mandatory sentencing for the incorrigible recidivist.

Once California's Three Strikes law went into effect at midnight on March 8th, 1994, it would take just nine hours for it to claim its first hapless victim, a homeless schizophrenic named Lester Wallace with two nonviolent burglaries on his sheet, who attempted to steal a car radio near the University of Southern California campus.

Wallace was such an incompetent thief that he was still sitting in the passenger seat of the car by the time police arrived. He went to court and got 25 years to life. In prison, Wallace immediately became a target. He was sexually and physically attacked numerous times – there's an incident in his file involving an inmate who told him, "Motherfucker, I'll kill you if you don't let me go up in you." He was switched to protective custody, and over the years he has suffered from seizures and developed severe back problems (forcing him to walk with a cane) and end-stage renal disease (leading to dialysis treatments three times a week). And even months after California voters chose to reform the law, the state still won't agree to release him. "He's a guy who's literally dying," says Michael Romano, director of Stanford's Three Strikes program and a key figure in the effort to reform the law, "and he's still inside."

Wallace's conviction set off a cascade of preposterous outsize sentences of nonviolent petty criminals. In many of these cases, the punishments were not just cruel and disproportionate, but ridiculously so. Oftentimes, the absurdity would end up being compounded by the fact that there would be another case just like it, or five just like it, or 10 just like it. They began to blend together, and if you could keep track of them at all, it was only in shorthand.

Lester Wallace became the schizophrenic-on-dialysis-who-stole-a-car-radio­ case, not to be confused with Gary Ewing, the blind-in-one-eye AIDS patient, who died in prison last summer while serving 25 to life for the limping-out-of-a-sporting-­goods-store-with-three-golf-clubs-stuffed-down- his-pant-leg case.

In that one, the Supreme Court decided life for shoplifting wasn't cruel and unusual punishment, with Justice Sandra Day O'Connor defending the sentence as a "rational judgment, entitled to deference." She added, with a straight face, that the Supreme Court does "not sit as a 'superlegislature' to second-guess" the states, despite the fact that that's precisely what the Supreme Court has been doing for almost 250 years.

There are at least two life-for-stealing­pizza cases. The most famous is Jerry Dewayne Williams, who got 25 to life after stealing a slice from a bunch of kids near Redondo Beach but was released after a paltry five years because of public furor. Still imprisoned, however, is one Shane Taylor, whose first two strikes came from a pair of nobody's-home residential burglaries committed in a single two-week stretch in 1988. In both of these crimes, the only thing taken was a checkbook from one of the houses (in the other residence, nothing was missing, but Taylor's fingerprint was found). With that checkbook, Taylor did exactly one thing: He bought a pizza with a forged check.

Eight years later, Taylor was standing outside his car, drinking beer and listening to tunes with his brother-in-law and a friend at a vista point in the little town of Porterville, near Sequoia National Forest, when a police car drove up. Officers investigated because they said they thought Taylor and his pals looked underage. They said they flashed a light on his front seat and spotted a baggie protruding from Taylor's wallet. They grabbed the bag and claimed they found 0.14 grams of meth – the equivalent of a tenth of a sugar packet.

Taylor went on to become one of the rare Three Strikes defendants to remain free on bail, even after his conviction. A month later, at his sentencing hearing, presiding Judge Howard Broadman was stunned to see Taylor voluntarily show up to be sent away for life over a few grains of meth. "I never expected to see you again, frankly," he said. "I thought a lot about you. And I said, 'Jeez, if I were him, I'd do research and find out what country didn't have extradition laws, because I don't think I'd have showed back up.'"

Broadman had no choice but to impose a 25-years-to-life sentence, but he made an unusual move to extend Taylor's bail, pending appeal. For the next two years, Taylor worked and supported his family. Taylor lost his appeal, and surrendered himself to begin serving his sentence in 1998.

More than a decade later, Broadman had an attack of conscience and called Romano at Stanford. "I'm a conservative, tough-on-crime kind of guy," he later explained, but "Shane Taylor was a mistake." Broadman wrote a declaration on behalf of Taylor, supporting his petition for release. But Taylor is still in jail, three full years after the judge had his come-to-Jesus moment. When I spoke to Taylor by phone from Soledad correctional facility, the dominant emotion in his voice was sheer amazement. "It's baffling to me that I'm still in here," he says. "Even the judge says he's done me wrong."

As for why he did show up in court all those years ago, he says it's simple: "I'm not the type to run out on my family," he says. "And honestly? I never thought I'd get 25 years."

Three Strikes turned out to be not only an abject failure but also a terrible embarrassment to the state of California. Politics and the law coincided to create a yin-yang cycle of endless, expensive stupidity: District attorneys were terrified of the political consequences of not seeking the max for every possible third strike (even when the cases were "wobblers," what lawyers call a crime that could be charged as either a misdemeanor or a felony, depending on the circumstances, like petty theft), while judges were legally bound to impose maximum sentences whether they agreed with them or not.

Things got so bad so fast in California's prisons, in fact, that the Supreme Court was ultimately forced to declare the state in violation of the Eighth Amendment against cruel and unusual punishment, with Justice Anthony Kennedy citing the use of "telephone-booth-size cages without toilets" as one of the reasons he was ordering the state to slash its 140,000-plus prison population by more than 30,000 inmates. That decision came in 2011; a lower court had previously noted that it was an "uncontested fact" that a prisoner in California died once every six or seven days due to "constitutional deficiencies."

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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.