The Law Strikes Out!

By William Fisher

One could just about hear the loud low anguished cry of Ohoooooooooooooo from the folks who sat through the trial as the judge read out the sentence.

The sentence: 70 years in prison without the possibility of parole under the so-called “3-Strikes” law. In other words, Life.

The Crimes: Two break-ins counted as his third and fourth strike (his priors were also burglary and coming into possession of stolen goods) stealing jewelry.

The Prisoner: Jeremy Stewart, 25, father of two small children.

Why? Sadhbh Walshe of the Guardian Newspaper explains:

“In January of this year, I wrote about Jeremy Stewart. In his case, the normal 25-to-life sentence was doubled to 50-to-life, and the judge threw in an extra 20 years for no reason anyone can explain to me – apparently, just to make absolutely sure this young man (who was struggling with drug addiction) never gets to see his children outside a prison visiting room again.”

Since Stewart’s conviction, Californians have finally amended their Draconian 3-strikes law. With the change voted in by referendum 36 – 18 years in coming – the “third strike” will result in a life-without-parole sentence only when that strike is a violent crime and/or when the third felony offense is serious or violent, as defined in state law. It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.

Listen to Walshe, “Jeremy's mother tells me that his 70-year sentence was upheld recently in an appeals hearing, and Jeremy will not be eligible for any reduction of his sentence under Prop 36 because burglary counts as a serious felony.”

One of the results of Prop 36 will be the re-sentencing of thousands of prisoners. The Stanford Innocence Project says the resentencing process “is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule. It is likely that many were too mentally impaired to assist their lawyers at the time of trial. Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population.”

The introduction of mental illness adds a serious new dimension to sentencing – with the ratio of mentally ill prisoners apparently higher among three-strike lifers in California. According to a 2011 analysis of state data by Stanford Law School’s Three Strikes Project, nearly 40 percent of these inmates qualify as mentally ill and are receiving psychiatric services behind bars.

Even before the recent ballot initiative, “the clinic’s law students had overturned the life sentences of 26 people, based on newly discovered evidence or inadequate assistance of counsel, as when defense lawyers failed to present evidence of a client’s mental illness.”

Michael Romano, director of the Stanford project, said, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder. Nearly all had been abused as children, he pointed out.” All had been homeless for extended periods, and many were illiterate. None had graduated from high school.”

He added, “In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.”

The Stanford Three Strikes Project is the only legal organization in the country devoted to representing individuals serving life sentences under California's Three Strikes law. The Project represents defendants charged under the Three Strikes law with minor, non-violent felonies at every stage of the criminal process: at trial, on appeal, and in state and federal post-conviction habeas corpus proceedings. The Project also works, on behalf of its clients in collaboration with the NAACP Legal Defense Fund, to reform the harshest aspects of the Three Strikes law.

The history of California’s 3-Strikes law is a nightmare of prison mismanagement. The Stanford Three Strikes Project is the only legal organization in the country devoted to representing individuals serving life sentences under California's Three Strikes law.

The Project represents defendants charged under the Three Strikes law with minor, non-violent felonies at every stage of the criminal process: at trial, on appeal, and in state and federal post-conviction habeas corpus proceedings. The Project also works, on behalf of its clients in collaboration with the NAACP Legal Defense Fund, to reform the harshest aspects of the Three Strikes law.

Brent Staples wrote in the New York Times: “Among the more horrifying cases investigated by the Three Strikes Project is that of 55-year-old Dale Curtis Gaines, who suffers from both mental retardation and mental illness. He has never committed a violent crime, but is serving a life sentence for receiving stolen property. His first two strikes, daytime burglaries of empty homes during which he was unarmed, appear to have involved thefts valued at little more than pocket change.”

Staples says, “According to court documents, Mr. Gaines’s early childhood was a nightmare, filled with the most savage forms of abuse. His grandmother, a primary care giver, is said to have beaten him when he urinated or defecated in bed — and forced him to eat his feces as punishment. Later, as often happens with mentally impaired adolescents, he began to skip school because he was ashamed that he could not keep up with his classmates. He was often homeless. While serving time for his second crime, he was diagnosed by the prison system itself as both mentally disabled and schizophrenic.”

Staples adds: “He was clearly too impaired to help with his defense, and at one point simply put a blanket over his head and declined to speak to a doctor who was questioning him. His ability to read is comparable to that of a kindergartner.”

The Times concludes: At the time of his third strike, for receiving stolen computer equipment, Mr. Gaines was getting Social Security and disability benefits because of mental illness and retardation. His mental health history, readily available in the prison record, would probably have been recognized as a mitigating factor and prevented him from being so harshly sentenced.

But, according to court documents, his public defender presented no evidence about his disability. In 2010, 12 years after Mr. Gaines was convicted, the prosecutor who handled the case but by then had left the district attorney’s office wrote to him in prison, expressing regret and offering help if he wished to appeal. The Stanford students also noticed his case and are now trying to free him.
Mr. Gaines’s story is not unique. The Times’ Staples says, “As more cases unfold in court, judges, lawyers and Californians should look back with shame at the injustice the state inflicted on a vulnerable population that often presented little or no danger to the public.”

Nor is California’s 3-strikes story unique. According to FindLaw.com, beginning in the early 1990s, states began to enact mandatory sentencing laws for repeat criminal offenders. These statutes came to be known as "three strikes laws," because they were invoked when offenders committed their third offense.

By 2003 over half the states and the federal government had enacted three strikes laws. The belief behind the laws was that getting career criminals off the streets was good public policy. However, the laws have their critics, who charge that sentences are often disproportionate to the crimes committed and that incarceration of three strikes inmates for 25 years to life would drive up correctional costs. Nevertheless, the U.S. Supreme Court has upheld three strikes laws and has rejected the argument that they amount to Cruel and Unusual Punishment.”

Washington state's legislature was the first to respond, passing its 3-strike legislation in 1993. The law mandates life in prison after conviction on any three of about 40 felonies, ranging from murder to robbery and vehicular assault. Defendants convicted under this law are not eligible for parole, nor may their sentence be suspended or shortened.

California and 11 other states passed similar laws in 1994. Nine more states were added to the list a year later. By the year 2000 more than 24 states had adopted laws of their own.

Georgia took matters a step further, enacting a "Two Strikes and You're Out" law. Felons convicted of the state's most serious crimes only twice are sentenced to life in prison without parole. Known as "the seven deadly sins," these crimes are murder, armed robbery, rape, kidnapping, aggravated Sodomy, aggravated Child Molestation, and aggravated sexual Battery.

Despite their popularity in the early 1990s, the laws came under severe attack in the late 1990s. Four studies were largely responsible for driving the debate: one by the Rand Institute, one by the National Institute of Justice, one by the Justice Policy Institute, and one by the Campaign for Effective Crime Policy, a nonpartisan group comprised of wardens, prosecutors, and law enforcement officials.

The studies revealed two kinds of results. In most states, little had changed. Washington had convicted 66 people under its 3-strike law. Arkansas had 12 convictions and Alaska, Connecticut, Louisiana, Maryland, North Carolina, Pennsylvania, Vermont, and New Jersey had no more than six. Wisconsin had invoked its law only once, while no one in Utah, Virginia, Montana, Tennessee, New Mexico, or Colorado had ever been prosecuted for a third-strike offense.

The results were vastly different in California and Georgia. Over 4,000 inmates in California are serving life sentences under the Three Strikes law for non-violent crimes. Past and current project clients have been given life sentences for minor offenses including stealing one dollar in loose change from a parked car, possessing less than a gram of narcotics, and attempting to break into a soup kitchen.

In addition the state also identified more than 40,000 second-strike offenders who would await such a sentence were they subsequently convicted for any one of roughly 500 crimes.

Georgia had sent approximately 1,000 defendants to prison for life without parole under its two strikes law and identified another 1,000 offenders eligible for that fate were they to subsequently commit one of the "seven deadly sins."

And according to new research, California's controversial and costly three-strikes law has done nothing to deter crime despite expanding the state's prison population, according to a new study. In fact, violent crime began falling almost two years before the law was enacted in 1994, statistics show. The study pegs that the decrease in crime to lower alcohol consumption and unemployment, which was largely in decline before the current economic downturn.

These studies did more than arm opponents of 3-strike laws with evidence of disparate results. They suggested that the laws had been enforced more often against minority offenders than against white offenders. In California only 1,237 of the more than 4,800 defendants sentenced for a third strike were white; 2,138 were African American, 1,262 were Latino, and 201 were classified as "other."

The studies further indicated that these minority offenders were mostly being punished for nonviolent third strikes. Statistics demonstrated that more than twice as many defendants' third-strike offenses were for drug possession or petty theft as for murder, rape, or kidnapping. Some of these nonviolent third strikes included seemingly innocuous offenses, such as shoplifting, stealing packages of steak, and drinking alcohol at a liquor store without paying for it.

Though critics of the law were disappointed by the findings, they argued that the economic cost of incarcerating three strikes inmates may ultimately lead to the repeal of such laws. In California it will cost an estimated $700 million per year to incarcerate these offenders, and over a billion dollars to construct new prisons to house the escalating number of inmates. As the state contends with caring for an aging prison population it will be forced to decide whether it wants to allocate limited resources to maintain the three strikes law.
Michael Romano, the Stanford University law professor who founded the Three Strikes Project, says many of the people sentenced to life are the homeless, guilty of petty theft or drug use. These convicts take up precious jail space and cost taxpayers millions, when their third strike might involve something as minor as stealing $20 worth of gloves from Home Depot or breaking into a parked car.

The nation’s 3-Strike laws are still with us. A few have undergone minor modifications over time. But as more research is completed, it appears clear is that they have helped drive prison costs off the charts, produced dangerous overcrowding, and continued to convict African Americans at a rate out of all proportion to the size of their race.