Cruel and Unusual Punishment: The Shame of Three Strikes Laws

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Jerry Brown flew to Long Beach at Nicholas' request, where he recorded anti-Prop 66 radio ads at a studio belonging to Ryan Shuck, guitarist of the rock group Orgy, while Korn drummer David Silveria looked on. The last-minute bipartisan ad blitz worked, and Prop 66 lost by a slim 53-to-47 margin, a come-from-behind win that one pollster at the time called "unprecedented."

Over the next few years, the Stanford Three Strikes program continued to pull prisoners out of jail one by one, freeing more than two dozen people between 2009 and 2012. But it was a laborious process, each case taking hundreds of hours. "I came to Mike," says Mills of Romano, "and I said, 'We can't do this one-off anymore. We have thousands of people in there.'"

So they came up with the idea of doing another ballot initiative, one that would be laser-focused on correcting what they saw as the most serious defect of the law: requiring that an inmate's third strike be a serious crime. The surprise came when Mills went looking to raise money for what he expected would be a hard-fought campaign.

"I could not get any liberals to give me any money," he says. Mills did find one donor – George Soros – but that was it. In the end, more than 90 percent of the campaign was funded by two people: Soros and Mills himself.

Meanwhile, the campaign was having astonishing success attracting support from conservatives, even hard­ass law-and-order types. The very father of modern zero-tolerance, broken­windows-policing techniques, William Bratton – the former chief of both the New York and Los Angeles police departments who had built his career around the idea that cracking down on minor crimes like subway-fare jumping and vandalism would reduce violent crime overall – backed Prop 36. "The Three Strikes approach," he said, "has political appeal for dealing with repeat offenders." But, he added, "Evidence has shown limited impact on crime levels."

Former Reagan Cabinet member George Shultz was another supporter, as was Reagan's attorney general, the anti-porn crusader Ed Meese. And, shockingly, so was Grover Norquist, the anti-tax mullah to many extreme-right causes. Norquist called California's law "big government at its worst," and added that "nonviolent offenders should be punished – but conservatives should insist the punishments are fair."

The many conservative endorsements, along with numerous endorsements of prominent California law-enforcement figures, went a long way toward helping the proposition finally pass in November.

The people who led the campaign remember their election-night victory with great fondness, but the whole experience was a bit bittersweet, at least for Mills, who seems scarred by the failure of liberals to stand up for the Norman Williamses of the world.

"They'd say things like, 'I hear you, but I really care about environmental causes, education for the poor,'" Mills says. "What it came down to, though, is that these people just don't care about the poor people of color who are locked up, and would as soon see them not released."

Romano tends to look more on the bright side and seems more focused on the big picture, which is that the measure passed and thousands of people finally have a chance to get out of jail. But he does have some thoughts about the politics of what happened. "I think some liberals overlearned the Willie Horton lesson," he says. "But I hope what we did is prove that this political third rail is no longer electric."

Prop 36 might have been a great victory, but it didn't mean that all the unjustly imprisoned were immediately freed. In fact, while 156 inmates have been released, 2,844 non­violent three-strikers remain behind bars. Worse, due to a quirk in the methodology by which California is complying with a federal order to reduce its prison population, there are many murderers and rapists getting out of jail more quickly than three-strikers. The state's method of emptying its overcrowded prisons was to give out lots of "good time" to prisoners with long sentences – in other words, accelerate a well-behaved prisoner's march to a parole hearing. But three-strikers cannot get "good time," they only get "straight time" – meaning 25 years is always 25 years. The only way out for them is still through a long, slow court process, one in which the state often fights release with a Frazier-in-Manila refuse­to-lose desperation.

In December 2010, a mentally disabled 53-year-old prisoner named Dale Curtis Gaines received a letter in his cell at the California Medical Facility, a prison for medically needy inmates in Vacaville, California. Meek of character and heavily medicated for years by prison doctors, Gaines had difficulty comprehending even the simplest things, but he had been pretty close to a model prisoner. In his 13 years behind bars, he had four minor infractions on his inmate record, one of which was refusing to give prison doctors a DNA sample. The reason? Gaines was afraid the state was going to clone him.

Gaines had never committed a violent crime. He was homeless and indigent for much of his life, and his third strike had come in 1997, when he was caught in possession of some computers stolen from an American Cancer Society office. Prior to that, he had two petty residential burglaries on his rap sheet. He struck out on the stolen-computers case and got the usual with extra fries, 27 to life.

Anyway, he opened the letter and was surprised to see it was from Ann Gallagher­White, the woman who had prosecuted him 13 years before:

Dear Mr. Gaines, I hope this letter finds you well. You may recognize my name and recall that I tried your case on behalf of the County of Sonoma. I had probably been with the District Attorney's office for about four years at that time. . . . I have always felt that your sentence was harsh, given your crime. Over the years, it has been on my mind as a case I regretted having been assigned to handle. . . .

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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.