Cruel and Unusual Punishment: The Shame of Three Strikes Laws

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Where some saw Three Strikes as a moral outrage, others seized on the financial burdens. Conceived as a way to keep child molesters in jail for life, Three Strikes more often became the world's most expensive and pointlessly repressive homeless-care program. It costs the state about $50,000 per year to care for every prisoner, even more when the inmate is physically or mentally disabled – and some 40 percent of three-strikers are either mentally retarded or mentally ill. "Homeless guys on drugs, that was your typical third-striker," says Romano. "And not that the money is the issue, but you could send hundreds of deserving people to college for the amount of money we were spending."

The typical third-striker wasn't just likely to be homeless and/or mentally ill – he was also very likely to be black. In California, blacks make up seven percent of the population, 28 percent of the prison population and 45 percent of the three-strikers.

Like wars, forest fires and bad marriages, really stupid laws are much easier to begin than they are to end. As the years passed and word of great masses of nonviolent inmates serving insanely disproportionate terms began to spread in the legal community, it became clear that any attempt to repair the damage done by Three Strikes would be a painstaking, ungainly process at best. The fear of being tabbed "soft on crime" left politicians and prosecutors everywhere reluctant to lift their foot off the gas pedal for even a moment, and before long the Three Strikes punishment machine evolved into something that hurtled forward at light speed, but moved backward only with great effort, fractions of a millimeter at a time.

The first break in the struggle against the law came in 2000, when Los Angeles County District Attorney Gil Garcetti, a hardcore Three Strikes advocate (you may remember him as the blow-dried shock-white head of hair who quarterbacked the O.J. Simpson case into one of the most embarrassing losses ever suffered by an American prosecutor's office), lost a re-election bid to his former deputy, Steve Cooley, who campaigned against Garcetti's embrace of the Three Strikes law. A month later, Cooley signed a special order indicating that his office – the largest prosecutor's office in America – would no longer seek maximum sentences for minor offenders. Cooley's unofficial reform would later provide the framework for the Proposition 36 ballot initiative that changed the law.

Around this same time, Romano, a Stanford Law grad who was clerking for a federal judge in Seattle, came across a pair of California cases that disturbed him greatly. One involved a Mexican immigrant sent to prison for life for taking the written portion of a DMV exam for a cousin who didn't speak English. In the other, a man named Willie Joseph received a life sentence after helping an undercover policeman set up a $5 crack deal. "That case stuck with me," says the bespectacled, quick-witted Romano. "Willie didn't hurt anybody in those offenses."

Romano eventually left his clerking job and returned to Stanford Law, with the idea of doing something about Three Strikes. There, he met up with professor David Mills, senior lecturer at the school, who was in the process of founding Stanford's renowned clinical-education program, in which law students do active work in multiple disciplines – everything from Supreme Court litigation to prosecuting criminal cases. Mills is a man of big plans and big ideas, a sort of entrepreneurial intellectual who not only co-chairs the NAACP legal-defense­ fund but has also built several successful private businesses in the financial sector. Like Romano, Mills had hated Three Strikes from the start. But he also knew that, in the age of mass media and the sound bite, fixing the law would be a heavy lift. "It's very easy to say, 'Three strikes and you're out,'" he says. "It's a lot harder to say, 'Well, wait a minute – do you mean three strikes, or do you mean three serious strikes? And what do you mean by "serious"?'"

Mills, Romano and Stanford decided to put together a Three Strikes program as part of the university's clinical curriculum, the idea being that the school would represent inmates serving Three Strikes sentences and try to reverse or at least scale some of them back. Initially, the school saw this mainly as a teaching opportunity for students, but as Romano learned about what Cooley was up to in L.A., he saw an opportunity for something bigger.

Cooley, in 2005, had ordered a review of Three Strikes cases – statewide, nearly 40 percent of them originated in L.A. County – and his staff came up with a list of some 60 names of inmates who had likely been oversentenced.

Perhaps, Romano thought, Cooley's office would work with Stanford to help fix some of those cases. He reached out to his office and the two groups immediately found common ground. There was even discussion at one point about Stanford working within the district attorney's office to reverse old cases, but that was ultimately discarded in order to preserve the traditional adversarial legal structure – which made sense because, among other things, Cooley didn't agree with Stanford about every single nonviolent inmate. Ultimately, the DA agreed that if the Stanford group challenged some of the more absurd Three Strikes cases, his office, on a select basis, might not oppose their efforts.

In the program's initial stages, the Stanford team operated by filing habeas-corpus motions, asking courts to rule on whether or not this or that prisoner had been unlawfully detained. One of the first cases they took up involved a homeless man from Long Beach named Norman Williams, who had been on the list of 60 potentially excessive sentences uncovered in Cooley's 2005 review.

Williams had an IQ of 71, had been placed in classes for the "educable mentally retarded" as a child, had suffered horrific physical and sexual abuse (including being forced into prostitution as a boy to "pay for [his] mother's wine"), and had been homeless and addicted to crack most of his adult life. He'd never committed a violent crime, and his third strike was stealing road flares and a floor jack from a tow truck. Police caught him when they spotted him wheeling a baby buggy full of stuff near the crime scene.

Williams was sent to California's notorious Folsom State Prison ("You don't want to go visit" is his description), where he learned to mind his own business, abide by the rules (no sitting with whites or Mexicans at meals) and pass the years in a nine-by-six cell. If Curtis Wilkerson is the unluckiest man on Earth, Norman Williams might have been the loneliest. In the 10 years he spent in prison, Williams never had a single visitor until the Stanford people­ came to see him about his case. He describes the first time he saw the Folsom visiting room the way a tourist might describe a first visit to the Sistine Chapel or the Taj Mahal.

"I had never been in there before," he says now. "I saw all them vending machines. . . . I was like, 'Wow, this is amazing.'"

Cooley's office didn't oppose Stanford's motion to reconsider Williams' sentence, and he was freed in 2008. (He now lives in Palo Alto and works as a manager of a street-cleaning crew.)

Inch by inch, bit by bit, the courts slowly began to release more prisoners like Williams. Often, the Stanford lawyers would seek to have sentences reduced or reconsidered based on what some might term legal technicalities, with ineffective assistance of counsel being a common argument. But in a broader sense, the Stanford team was relying upon an innovative new legal argument they themselves invented.

"The hypertechnical legal term," says Romano, "is the 'You've gotta be kidding me' motion." As in, 25 years to life for stealing a pair of socks? You've gotta be kidding me. Life for stealing baby shoes? You've gotta be kidding me.

It didn't happen all that often, but Cooley occasionally agreed where Garcetti had not. This was interesting for one conspicuous reason. "Garcetti was a Democrat," says Mills. "And Cooley was a Republican. It's not what you'd expect, but with Three Strikes, everything turns out to be backward."

Mills and Romano would learn this lesson in a big way when they decided to aim higher than just freeing individual prisoners one at a time. From the very beginning, there had always been significant opposition – from members of both parties – to the dumber aspects of the Three Strikes law. As far back as 1994, when the original ballot initiative was first being planned, everyone from Gov. Pete Wilson to Los Angeles County Sheriff Sherman Block to the California District Attorneys Association supported versions of the law that required the third strike to be a violent or serious crime.

But in the end, many California pols caved to public pressure and supported the more brutal version of the law rather than risk being labeled "soft on crime" – an attitude famously symbolized by the then-California­ Assembly speaker, the well-known liberal Willie Brown, who in early 1994 gave up his opposition to Three Strikes: "I got out of the way of this train," he said. "I tell you, I looked like Harrison Ford in The Fugitive. I got out of the way because I'm a realist."

Ten years later, when a group called Families to Amend California's Three Strikes, or FACTS, tried to reform the law, it was the same story. They fought to get an initiative onto the ballot, Proposition 66. Two weeks before Election Day, a Los Angeles Times poll showed the measure winning by a nearly three-to-one margin. But days before the vote, an Orange County billionaire named Henry T. Nicholas donated $1.5 million for a major ad buy. Soliciting the support of then-Gov. Arnold Schwarzenegger and his predecessors – including Democrats Jerry Brown and Gray Davis – the anti-Prop 66 camp ran a series of scare ads, including one called "He Raped Me," which showed a middle-aged white woman claiming the initiative would release her attacker, and Polly Klaas' father promising that "murderers, rapists and some very dangerous child molesters" would be released thanks to the new law. It wasn't Willie Horton – the mug shots shown in the ad were mostly all of scary-looking white criminals – but it was in the rhetorical ballpark.

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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.