Critics and Supporters Re-examine Three Strikes Law

It is perhaps our most notorious case. In December of 2008 a man goes into the Woodland Nugget and comes out with a $3.99 package of shredded cheese in his pants.  After someone saw him shove the cheese into the pants and leave the store, the subject was detained by “loss prevention.”

 

Mr. Ferguson was charged with a petty theft with a prior, making it a felony.  Because of his criminal history, the DA argued that a third strike was warranted, despite the minor nature of the latest crime.

According to the District Attorney’s office, Mr. Ferguson was a candidate for using the three strikes law, due in part to the five-part test.  The parts are, nature and circumstances of current offense, nature and circumstances of prior strikes, defendant’s background, defendant’s character, and defendant’s prospect.

The prosecution argued he was eligible for a third strike based on his background and prospect.  First, they argued that he is unemployed and unmarried.  He is a repeat offender and made no claims to education or job skills.  Furthermore he is taking no responsibility for a substance abuse problem.

Additionally, he had been in custody for 22 years, six months and six days in the previous 27 years.  They argued, “Defendant cannot function as a productive citizen in society.”  Moreover, “[Mr. Ferguson] made no effort whatsoever to becoming a law-abiding citizen.”

What happened next is that the Vanguard ran a story on February 8, 2010 on this story.  The Sacramento Bee, having read that story, ran their own follow-up the next day.  The story was covered across the country and even internationally.

By Friday, the DA suddenly decided to drop pursuing the third strike. Instead, as a second-strike offender, Mr. Ferguson would receive eight years in prison.

Three strikes has regained scrutiny in the last month or so, given the Supreme Court orders to release prisoners due to overcrowding.  Both the Sacramento Bee and the San Francisco Chronicle have written stories this weekend on three strikes.

The Bee article, written by Andy Furillo, argues that “prosecutors in Sacramento and throughout California have become far more selective in applying the full force of the statute, reducing the number of lifetime prison terms being sought for third strikers to a relative trickle.”

We have not seen that occur in Yolo County, where we can cite a number of cases which the DA attempted to try as three strikes cases, some successfully, while others have had judges reduce them down to a two-strikes case, using a Romero Motion.

A Romero Motion came from a California Supreme Court decision, and enables a judge to have a little discretion by removing a strike from a defendant’s record.

We do not have the exact figure for Yolo County, but we believe, based on observations, that the three strikes law is used more frequently in Yolo County than other counties.

The Bee article reports, “While it used to obtain the maximum sentences anywhere from 50 to nearly 100 times a year, the Sacramento District Attorney’s Office now asks for life terms for third strikers fewer than 20 times a year, according to the California Department of Corrections and Rehabilitation. The office obtained 16 such sentences in 2010 compared with a high of 94 in 1996.”

Mr. Furillo reports that explanations vary, and include the Romero decision.  There is also a basic supply and demand going on here.

He writes, “Voters and lawmakers have approved a collection of tough sentencing laws that have depleted the pool of eligible offenders earlier in their criminal careers, taking them off the streets before they qualify for 25-to-life terms under the three-strikes statute.”

And yet in Yolo County we continue to see a handful of petty theft with priors being charged as third strike cases.  Most of the time, the Judges are the ones who end up getting rid of the third strike, not the prosecutors.

But other counties have used their discretion far more, according to Mr. Furillo.

He writes, “Prosecutors have always had discretion under the law to reduce potential life terms to lesser sentences, but many didn’t exercise it. Los Angeles County prosecutors, in particular, refrained from ‘striking strikes,’ or dismissing prior serious or violent convictions for the purpose of lowering prison terms.”

That changed under Steve Cooley, who ran for Attorney General last year and became LA’s District Attorney in 2000.

Writes Mr. Furillo, “Elected largely on a platform of refining the law’s application, Cooley took the lead in putting a new policy in place. He reserved the heavier sentences for defendants with serious or violent third strikes, but built in exceptions to target offenders with horrific pasts even if their latest charge wasn’t so serious.”

He adds, “Cooley said over-application of the law by some California prosecutors – hitting people for third strikes for minor felonies such as drug possession and pizza theft – prompted a public backlash. A 2004 statewide ballot measure that would have dumped three strikes altogether came within three percentage points of winning.”

“If you have a good law, and you abuse it, you will predictably lose it,” Mr. Cooley said at a recent symposium on the three-strikes law in Los Angeles. “If somebody has a rock (of cocaine) in his sock, you give him 25 to life? Give me a break.”

Sacramento has a written policy on three strikes, according to the Bee article, in which they charge all qualifying three strikes as such, but then dismiss strikes if the sentence would be “disproportionate and therefore unjust based on the circumstances of the current offense and the background of the defendant.”

Writes Mr. Furillo, “According to a review of the roughly 90 three-strikes cases pending in Sacramento in May, prosecutors are dismissing strikes in more than 40 percent of the cases relatively early in the process.”

However, there are also a lot of cases like what has happened in Yolo County.

“Even with discretionary authority returned to the judges and prosecutors exercising a softer approach, plenty of critics still think the California statute is unduly harsh and applied unevenly in different parts of the state,” the Bee reports.

“You still have some district attorneys out there who are still using it to capture aging felons on relatively minor third felonies,” McGeorge School of Law professor Michael Vitiello told the Bee.

The Bee adds, “In addition, Vitiello said, the prisons house thousands of offenders who are doing 25-to-life sentences whose cases may not have triggered that term today.”

“Vitiello said the state needs a “broad sentencing scheme” overseen by an appointed commission that would review the state’s entire sentencing structure in order to reserve limited prison space for the most dangerous offenders,” the Bee continues.

“With three strikes, it’s blunderbuss,” Professor Vitiello said. “You need a more sophisticated weapon.”

While Andy Furillo of the Sacramento Bee largely defends the three strikes law, arguing that the use is down and judges have discretion to eliminate a previous strike through a Romero Motion, the San Francisco Chronicle article focuses heavily on reform efforts.

Writes Marisa Lagos, “Some criminal justice experts are pushing for an overhaul of the sentencing mandate they say is long overdue.  They say the law has driven up incarceration costs by billions, contributed to California’s prison crowding and resulted in harsh sentences that did not fit the crimes or circumstances.”

They site a case of 42-year-old Shane Taylor, who was arrested in Tulare County when “an officer noticed a small bag poking out of Taylor’s wallet that contained methamphetamine, about a tenth of a sugar packet’s worth.”

Writes Ms. Lagos, “Had Taylor’s record been clean, he might have landed in county jail for a few years. But combined with two prior convictions for burglaries he committed at age 19, Taylor received the most severe punishment under the state’s three-strikes law: 25 years to life.

She adds, “Now, 15 years after Taylor was locked up at the Correctional Training Facility in Soledad, the prosecuting attorney and sentencing judge say the punishment was too harsh.”

“I made a mistake,” retired Tulare County Judge Howard Broadman said in a recent phone interview. “It’s too much time.”

The article continues, “An appeal of Taylor’s sentence is pending with the California Supreme Court. The appeal was filed after Broadman called a Stanford University professor who specializes in three-strikes cases and expressed remorse, saying he would not have handed down the long prison term had he better understood the three-strikes law, which had been in effect just two years. “

“This guy should not be in prison this long,” Judge Broadman said. “It bothered me that [he was] such a low-level offender. … When you are in a position of authority I was in at the time, you can make mistakes and it costs the state too much money, and it costs the offender and their family. It’s wrong.”

“Taylor’s lawyers say their client’s story is not rare, and that the sentencing mandate has led to numerous other troubling cases,” the Chronicle reports.  “They and other critics say it’s time to change the law, particularly because California faces chronic deficits and a court order to reduce its prison population by 33,000 over the next two years.”

The reason why three strikes cases are down in California should be relatively clear.  29% of the state’s inmate population, 41,000 of 143,500 prison inmates, are there as second and third strikes.

Supporters point to the drop in crime as the key to the success of the law.  Writes the Chronicle, “Supporters say it’s crucial to lock up career criminals even if their latest crime is not violent because a small minority of offenders commit the vast majority of crimes. They say the three-strikes law is sparingly used by prosecutors and has been a major factor in reducing crime rates, which peaked in 1992 and have been declining since.”

“It does work,” said Mike Reynolds, the law’s author, whose 18-year-old daughter was murdered in 1992 by a drug addict who had recently been released from prison. “We have dropped the crime rate in half in California – not only reducing victims, but reducing the number of criminals.”

Critics, on the other hand, note as we have, that crime rates began falling around the nation before the law passed, and that states without similar laws have commensurate or even deeper declines in crime.

“Three strikes passed during a period of time when California and the nation as a whole was swept up in panic over crime and super predator arguments – every politician, left and right, felt the need to embrace something to get away from the freight train of public fear about crime,” said Barry Krisberg, a criminal justice expert at UC Berkeley, as quoted in the Chronicle. “Three strikes never made sense – it was never a good law or policy from the inception. … it does not explain the sweeping, dramatic declines in crime we’ve seen across the nation.”

Moreover, as the Chronicle points out, “Research shows that higher incarceration rates do not necessarily lead to less crime, said Adam Gelb, director of the public safety performance project at the Pew Center on the States. Pew researchers have found that all 19 states that reduced the number of people in prison over the past decade have simultaneously seen their crime rates decline.”

Then there is the cost, and the bulk of the cost is due to second strikes, as they represent about 79 percent of those in prison under the law.

According to the Chronicle, “A May 2010 report by the California State Auditor concluded that those now in prison under three strikes will cost the state a total of $19.2 billion. The report also found that about 53 percent of those inmates are serving a sentence for a non-serious, nonviolent crime.”

The Chronicle also reports that the costs are not nearly as high as feared, in part due to the reduced number of three strikes cases and also due to other tough new laws.

Last week a man was sentenced to 29 years in prison for shooting at police as he evaded them.  20 of those years were part of a mandatory sentence that increases prison terms by 10 years for those who pull out a gun during a crime, 20 years if they shoot it, and 25 to life if they hit and seriously injure someone.

The Bee quotes Sacramento’s Assistant Chief Deputy DA Steve Grippi, who said, “In the old days, if somebody committed a crime with a gun, they might be out in two, three or four years.  Those people aren’t out of custody now because they’re getting sentenced harshly.”

In the meantime, the Chronicle reports that lawyers at the “Three Strikes Project at Stanford University say offenders are still unfairly sentenced under the law, including in the 20 cases where they have succeeded in getting an inmate’s sentence reduced.”

Founded by Michael Romano, a San Francisco criminal appeals and civil rights lawyer who calls three strikes the “worst criminal law in the country,” the project represents defendants charged under three strikes with minor, nonviolent felonies.

—David M. Greenwald reporting