Tag Archives: three strikes

Gascón’s Three Strikes Charge Inappropriate

Interim District Attorney George Gascón has charged Lucinda Moyers, who allegedly burglarized the hotel room of “Jeopardy” host Alex Trebek, under California’s Three Strikes law, which could lead to a sentence of 25 years to life in prison.

Gascón’s spokesperson said he was taking this step based on Moyers’ two prior burglary convictions, in 1990 and 1991. Moyers has stated to reporters that she had a heroin addiction, and denies the charges in the most recent incident.

Moyers, if found guilty, certainly needs to be punished for her actions. But a punishment of 25 years to life is completely disproportionate for someone who has never been convicted of a violent crime. Moyers is 56 years old. Does it make any fiscal sense to keep her locked up into her seventies and eighties at a average cost of $47,000 per year – and likely more as she has greater health care needs as she ages?

As District Attorney, I would have a clear policy against charging third strikes for non-violent crimes. Based on the information we know about this case, I would absolutely not have charged Moyers under Three Strikes.

There has been a lot of rhetoric about Three Strikes in this campaign, and claims that all the candidates have the same views about it. This case is evidence that we most certainly do not.

It’s Time to Reform Three Strikes

California voters overwhelmingly passed the Three Strikes initiative in 1994 based on the promise that it would take repeat violent offenders off the streets.

But now, more than fifteen years after the initiative’s passage, we have the benefit of facts to help us understand the true impact of Three Strikes.

Most Californians already know that in the wake of Three Strikes the cost of corrections has soared. Our state prison budget is now so high that California spends as much on prisons as we do on higher education.

But many Californians are surprised to learn that, under Three Strikes, Curtis Wilkerson of Los Angeles was sentenced to life for petty theft of a pair of socks; that Shane Taylor of Tulare was sentenced to life for simple possession of 0.1 gram of methamphetamine; or that Greg Taylor of Los Angeles was sentenced to life for attempting to break into a soup kitchen to get something to eat.

In fact, the majority of those put away for life under Three Strikes – over 4,000 people total – committed a minor, non-violent third strike. These non-violent third strikers will, according to the California state auditor, cost the state at least $4.8 billion over the next 25 years – almost $200 million per year.

The people named above have an advantage that the vast majority of three strikers do not — they are all clients of the Three Strikes Project at Stanford Law School’s Mills Legal Clinic. Under the direction of Project co-founder Michael Romano, Stanford law students have helped get a dozen non-violent third strikers released from prison after having their sentences reduced.

They are not being released because they are innocent. As Romano said on the Criminal Justice Conversations Podcast,

“Our clients are, in almost every circumstance, absolutely guilty. We’re not going into court and saying that they didn’t do it. What we’re saying is that the punishment that they received for this petty crime is disproportionate.”

This disproportionate punishment is unjust, and it is bankrupting our state. We are wasting precious resources to unnecessarily incarcerate minor offenders who pose little threat to society for huge periods of time – and draining resources away from the law enforcement agencies, community organizations and schools that can truly prevent crime and keep us safe.

Simply put, it is time to reform Three Strikes – so that it is focused on the serious and violent repeat offenders we all agree society must be protected from. Because Three Strikes was passed by a voter initiative, it can only be changed by initiative. In the past, Three Strikes was viewed as untouchable. But now, with the state facing fiscal catastrophe, and Romano and his students bringing attention to the unjust extremes of the law with each new client that gets released, there is momentum for change.

Romano thinks that there is another ingredient necessary for successful reform: political leadership. He says that “with a few notable exceptions, there has been very little leadership on this issue from our elected law enforcement leaders.”

Now is the time to show the leadership what it will take to return to sensible, cost-effective and fair criminal justice polices in California.


David Onek is a Senior Fellow at the Berkeley Center for Criminal Justice, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney. You can listen to Onek’s recent interview with Romano on the Criminal Justice Conversations Podcast.

Our Parole Failure, From Those Who Know

Here’s an excellent Q&A, really a must read, with UC Berkeley Law Professor Jonathan Simon, an expert on parole policy.  Using the killing of four Oakland police officers by Lovelle Mixon, who was on parole at the time, Simon sets aside the myths about parole and looks at the hard facts – that this is an unbelievably broken system, particularly in California, one that really cannot fulfill the mission set out for it 100 years ago.  Parole was something of an employment agency upon its inception, supervising ex-convicts at their workplace and letting them go on with their lives.  In today’s environment of social Darwinism, ex-cons are sent back onto the streets with no money and no skills to get a job, and so they devolve into homelessness or drug abuse, making it nearly impossible for parole officers to even find parolees, let alone keep them out of trouble.  

It really can’t work – which you’ll see if you look at the category of parolees who are simply of unknown whereabouts. These parolees are described as PAL, for “parolee at large,” in official California statistics.

Statewide, 14.6 percent of all parolees were PAL in 2005; in large cities like Oakland and Los Angeles it’s probably closer to 25 percent. This sounds alarming, although authorities have little basis for knowing the status of these people. Is the parolee-at-large wandering around homeless and has he forgotten to come in for an appointment, or to take his medications if he or she is on psychiatric treatment? Or, as with Lovelle Mixon, has the person gone back to doing some very serious crimes and is he evading detection? We’re fooling ourselves if we think that this century-old method of surveilling people in the community, through periodic contacts, can work with a population as isolated and marginalized as the one upon which we now focus our penal attention.

Simon theorizes that California’s parole system works even worse than most states because we eliminated early release through parole, but maintained the strict supervision requirements that invariably send parolees back to prison:

But unlike many other states that also eliminated early release through parole, California continued to require parole supervision in the community for all released prisoners. And that, I think, is a big part of what’s broken. People are sent to California prisons for a determinate amount of time, based upon the seriousness of their crime. After they’ve served this sentence, it’s neither justified nor effective to add up to three years of parole supervision for each and every ex-offender – without making any distinction between those whose criminal record or psychological profile suggest they’ll commit a crime that will harm the community, and those who pose no such threat.

So the parole system has little real capacity to monitor and protect us from those who pose a danger of committing serious new crimes. And it exposes ex-offenders – many of whom pose little threat of committing such crimes – to the likelihood of being sent back to prison. (This is a really big problem, when you think of our prison overcrowding and our budget crisis).

Parolees are required to consent to searches of their person and property. If officers stop a car in Oakland, and somebody in that car is on parole, police have a lot of leeway to disregard normal constitutional limits on search-and-seizure authority. They can use any evidence collected in this situation against the parolee – and also, of course, can attempt to use the coercion of plea bargaining to get evidence against other people in the car.

In recent years, as many as 70 percent of those on parole in California have been sent back to prison – only a small percentage of whom have committed a new crime (14 percent in 2007); more than half were sent back for what are called “technical” parole violations. These parolees are “returned to custody” by the Board of Prison Terms, very often for conduct that would not earn them (or other California citizens) prison time in a court. Turning in a positive drug test is an example; even missing an appointment with parole staff can result in re-imprisonment.

By the way, no other state has the recidivism rate of California, and certainly no other state sends as many people back to prison for technical violations of their parole appointments.  And due to the three-strikes law as well as increased sentences over 30 years, we have more Californians in prison on life sentences – about thirty thousand – as there were TOTAL PRISONERS in 1977.  The parole board is theoretically supposed to monitor the “lifers” and let out those who served their mandatory minimums and can be reasonably seen as representing no risk to the community, but in reality we let out something like 5 per year.  Meanwhile more life sentences are given to thousands of prisoners every year, and the problem simply grows.

Even Arnold Schwarzenegger’s supposedly bold plan to release all undocumented immigrants from prison and deport them – something he hasn’t bothered to run by the Immigration and Customs Enforcement arm of the federal government – has so many strings on what type of prisoners should be allowed to go free (one felony conviction, nonviolent and nonsexual crime, etc.) that only 1,400 out of 18,000 would qualify.  

Tough on crime policies have very simply destroyed California, leaving every lawmaker looking over his or her shoulder trying to be crueler toward criminals than their opponents.  In the end, we all suffer, as scarce resources get taken up by a prison-industrial complex that is the fastest-growing sector of the state budget.  These policies have been discredited, and other states have proven that you can maintain the peace and provide for public safety while not stuffing prisons with a seemingly endless amount of criminals.  We can bring the idea of corrections, and rehabilitation, back to the corrections process, if we only shake off the fear that practically every politician exudes when promoting these terrible policies.

HUGE: 9th Circuit Rules Three Strikes Sentence Unconstitutional

This is a major, if tentative, victory for criminal justice reform advocates.

California’s three-strikes sentencing law suffered a blow Tuesday when a federal appeals court struck down as unconstitutional a 28-years-to-life sentence for a sex offender who failed to register with local police at the correct time of year.

The U.S. 9th Circuit Court of Appeals sent the case of Cecilio Gonzalez back to federal district court in Los Angeles for resentencing after finding his 2001 penalty constituted cruel and unusual punishment, which is prohibited by the 8th Amendment.

Gonzalez’s harsh sentence was grossly disproportionate to his “entirely passive, harmless and technical violation of the registration law,” the appeals court said.

This case represented the unintended consequence of three-strikes carried out to its most ridiculous extreme.  28 to life for registering, but not at the right time of year?  Nuts.  This isn’t a crime in 11 states, and the maximum sentence allowed by customary law in California is three years.

In case the “tough on crime” absolutists start shieking about “activist liberal judges” overturning the will of the people, consider who wrote this opinion: Jay Bybee.  Nominated by George W. Bush Jay Bybee.  Writer of the fucking torture memo Jay Bybee.  Even a guy who justified the torture of prisoners considers this cruel and unusual punishment.  There is no indication whether or not Jerry Brown would carry this to an appeal, but considering the opinion of this very conservative jurist, I would imagine the US Supreme Court would at least potentially rule the same way, although they struck down a similar challenge to three strikes in 2003 on a 5-4 vote.  Put it this way, I don’t see Bybee as more conservative than Anthony Kennedy.

This does not invalidate three strikes entirely, but it certainly gives a ray of hope to those locked up for a minor third crime to challenge their sentencing.  And it provides a framework to show how unjust and counter-productive these stringent mandatory sentences are.  Three strikes is more of a symptom than the entire problem – the legislature has approved over 1,000 higher sentences in the past 30 years.  But this is an important start, to end the tyranny of “tough on crime” absolutism that has contributed to busting the state budget and making this the worst state in the union when it comes to the corrections system.

News Roundup, 3/27/06

California News Roundup for today on the flip. Teasers: Pot, minimum wage, end of life choices, three strikes, State Senate District 35, CA-50, salmon, immigration, stem cells, and the race for lieutenant governor.