Cruel and Unusual Punishment: The Shame of Three Strikes Laws
On July 15th, 1995, in the quiet Southern California city of Whittier, a 33-year-old black man named Curtis Wilkerson got up from a booth at McDonald’s, walked into a nearby mall and, within the space of two hours, turned himself into the unluckiest man on Earth. “I was supposed to be waiting there while my girlfriend was at the beauty salon,” he says.
So he waited. And waited. After a while, he paged her. “She was like, ‘I need another hour,'” he says. “So I was like, ‘Baby, I’m going to the mall.'”
Having grown up with no father and a mother hooked on barbiturates, Wilkerson, who says he still boasts a Reggie Miller jumper, began to spend more time on the streets. After his mother died when he was 16, he fell in with a bad crowd, and in 1981 he served as a lookout in a series of robberies. He was quickly caught and sentenced to six years in prison. After he got out, he found work as a forklift operator, and distanced himself from his old life.
But that day in the mall, something came over him. He wandered from store to store, bought a few things, still shaking his head about his girlfriend’s hair appointment. After a while, he drifted into a department store called Mervyn’s. Your typical chain store, full of mannequins and dress racks; they’re out of business today. Suddenly, a pair of socks caught his eye. He grabbed them and slipped them into a shopping bag.
What kind of socks were they, that they were worth taking the risk?
“They were million-dollar socks with gold on ’em,” he says now, laughing almost uncontrollably, as he tells the story 18 years later, from a telephone in a correctional facility in Soledad, California.
Really, they were that special?
“No, they were ordinary white socks,” he says, not knowing whether to laugh or cry. “Didn’t even have any stripes.”
Wilkerson never made it out of the store. At the exit, he was, shall we say, overenthusiastically apprehended by two security officers. They took him to the store security office, where the guards started to argue with each other over whether or not to call the police. One guard wanted to let him pay for the socks and go, but the other guard was more of a hardass and called the cops, having no idea he was about to write himself a part in one of the most absurd scripts to ever hit Southern California.
Thanks to a brand-new, get-tough-on-crime state law, Wilkerson would soon be sentenced to life in prison for stealing a pair of plain white tube socks worth $2.50.
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“No, sir, I was not expecting that one,” he says now, laughing darkly. Because Wilkerson had two prior convictions, both dating back to 1981, the shoplifting charge counted as a third strike against him. He was sentenced to 25 years to life, meaning that his first chance for a parole hearing would be in 25 years.
And given that around 80 percent of parole applications are rejected by parole boards, and governors override parole boards in about 50 percent of the instances where parole is granted, it was a near certainty that Wilkerson would never see the outside of a prison again.
The state also fined him $2,500 – restitution for the stolen socks. He works that off by putting in four to five hours a day in the prison cafeteria, for which he gets paid $20 a month, of which the state takes $11. At this rate, he will be in his nineties before he’s paid the state off for that one pair of socks.
As for the big question – does he ever wish he could go back in time and wait it out in that McDonald’s for another hour, instead of 18 years in the California prison system? – Wilkerson, who has learned to laugh, laughs again.
“Man,” he says, “I think about that every single day.”
Wilkerson is unlucky, but he’s hardly alone. Despite the passage in late 2012 of a new state ballot initiative that prevents California from ever again giving out life sentences to anyone whose “third strike” is not a serious crime, thousands of people – the overwhelming majority of them poor and nonwhite – remain imprisoned for a variety of offenses so absurd that any list of the unluckiest offenders reads like a macabre joke, a surrealistic comedy routine.
Have you heard the one about the guy who got life for stealing a slice of pizza? Or the guy who went away forever for lifting a pair of baby shoes? Or the one who got 50 to life for helping himself to five children’s videotapes from Kmart? How about the guy who got life for possessing 0.14 grams of meth? That last offender was a criminal mastermind by Three Strikes standards, as many others have been sentenced to life for holding even smaller amounts of drugs, including one poor sap who got the max for 0.09 grams of black-tar heroin.
This Frankenstein’s monster of a mandatory-sentencing system isn’t just some localized bureaucratic accident, but the legacy of a series of complex political choices we all made as voters decades ago. California’s Three Strikes law has its origins in a terrible event from October 1993, when, in a case that outraged the entire country, a violent felon named Richard Allen Davis kidnapped and murdered an adolescent girl named Polly Klaas. Californians were determined to never again let a repeat offender get the chance to commit such a brutal crime, and so a year later, with the Klaas case still fresh in public memory, the state’s citizens passed Proposition 184 – the Three Strikes law – with an overwhelming 72 percent of the vote. Under the ballot initiative, anyone who had committed two serious felonies would effectively be sentenced to jail for life upon being convicted of a third crime.
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The overwhelming support for the measure touched off a nationwide get-tough-on-crime movement, embraced especially by third-way-style Democrats, who seized upon the policy idea as a powerful weapon in their efforts to throw off their party’s bleeding-heart image and recapture the political center. Having seen their wonk-geekish 1988 presidential candidate, Michael Dukakis, expertly exploded by the infamous Willie Horton ad cooked up by Republican strategist Lee Atwater – an ad that convinced voters that the Democrats were the party of scary-looking black rapists on furlough – Democrats had spent years searching for a way to send Middle America a different message.
Three Strikes was a perfect way to convey that new message. The master triangulator himself, Bill Clinton, stumped for a national Three Strikes law in his 1994 State of the Union address. When a federal version passed a year later, Clinton took special care to give squeamish wuss-bunny liberals a celebratory kick in the ear, using the same “Either you are with us, or you are with the terrorists” rhetorical technique George W. Bush would make famous a few years later. “Narrow-interest groups on the left and the right didn’t want the bill to pass,” Clinton beamed, “and you can be sure the criminals didn’t either.”
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.”
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.
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. . . .
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.