Three Strikes Articles

 San Diego News Network 

California’s three strikes law, 15 years later

By Gina Giacopuzzi, SDNN

Friday, May 8, 2009

In March, California’s three-strikes law celebrated its 15th anniversary. Since its passage in 1994 by nearly three-quarters of voters, the law has become one of the most controversial and oft-mentioned in discussions over the state’s prison system.

The three-strikes law was advanced by Mike Reynolds, a Fresno photographer, after his 18-year-old daughter was murdered. After one of her killers, a repeat felon, was released in nine years, her father went on the offensive. He maintains a website,, which recently released a 15-year study quantifying the reductions in crime and lives saved as a result of three-strikes.

“Since then, there have been over 3 million fewer serious and violent crime victims and 10,000 fewer murders,” Reynolds said. The study compares crime figures from 15 years before three-strikes to 15 years after, or the most recent crime numbers released (which are for 2007). “What’s really astonishing is, we’ve seen an increase in California’s population by over 50 percent, but a 50 percent decrease in crime.” Reynold references other theories that attribute crime reductions to a stable economy, but points out that crime hasn’t increased since the recent economic downturn– and that California’s violent crime dropped at twice the national rate.

In 2004, Proposition 66 was on the ballot to limit the application of the third-strikes law to violent crimes. Prop. 66 was defeated by 52.7 percent of voters, but the three-strikes law continues to be one of the first areas of law touted for reform in discussions over high prison populations and costs. Numerous court challenges have been filed in individual cases.

“I think if people were really educated about what (the three-strikes law) means, and its consequences, in both human and economic terms, they would vote to overturn it,” said Marjorie Cohn, a professor at Thomas Jefferson School of Law and former criminal defense attorney.

To Cohn, the problem with the three-strikes law exemplifies the problem with California’s prison system as a whole—namely, the exclusive focus on punishment to the neglect of rehabilitation.

“California has one of the most regressive three-strikes laws in the country,” Cohn said. “You’re basically locking people up and treating them like animals… rather than giving people job training, and having them work and support their families, where they can come out (of prison) and have some dignity.”
Last year, there were 41,284 prisoners serving time under the law, which requires a minimum 25-year sentence for third-time felons. Of those, 3,629 of third strikers were non-violent felons (although their first two offenses were violent felonies). Since third-strikers are often housed in maximum-security prisons, the average annual cost of housing, per person, is $31,000. The law also doubles sentences for second-time felons. The total cost of housing prisoners serving time under the law amounts to about $500 million a year.

“We need to revisit whether three-strikes is doing anything good… if it’s fulfilled its promise,” said Professor Laura M.S. Berend, a professor at University of San Diego School of Law. “We’re heading towards being geriatric institutions, and just (covering) medical costs.” The average cost of housing a prisoner over the age of 55 is $50,000 a year.

Reynolds argues that, with an increase in population of only 10,000 inmates a year, there aren’t as many prisoners coming in as there were before three-strikes, and that once they’re released, the law may act as a deterrent for repeat felonies.

“The recidivism rate for second and third time felons is at a much lower rate,” Reynolds said. He also points to an “extraordinary exodus” of inmates that have two or three strikes leaving the state.

When the law passed, the Legislative Analyst’s Office called it “the most significant change to the state criminal justice system in more than a generation.” A year after its passage, the LAO reported measurable increases in prosecutions, fewer guilty pleas by defendants (and subsequent increases in jury trials), a backlog of cases in the courts (and subsequent focus on criminal cases rather than civil cases), and that about 70 percent of second- and third-strikes were for nonviolent offenses.

However, ten years after the law passed, the LAO reported that it had not resulted in the expected rate of growth in prison populations, although strikers made up about 26 percent of prisoners in 2004.

“A number of factors have probably contributed to a lower prison population, including the use of discretion by judges and district attorneys to dismiss prior strikes in some cases,” the report found. It did find that the average age of prisoners had gone up, and the number of inmates 50 years of age and older had tripled, attributed in part to the fact that “The so-called ‘baby boom’ generation is getting older, and so are the criminals of the baby boom generation.”

Opponents of the three-strikes law, including Families to Amend California’s Three Strikes, keep lists of felons who are serving 25 years-to-life for nonviolent or non-serious third strikes. They range from stealing a spare tire to drug possession. Cohn cites a case that went all the way to the Supreme Court, Lockyer v. Andrade, wherein the defendant was given two 25 years-to-life sentences for stealing nine children’s videotapes, worth a total of $153.54. Leandro Andrade’s first two felonies were home burglaries. The Supreme Court upheld Andrade’s sentence.

Proponents of the law say the three-strikes law has prevented a million serious or violent crimes every five years since its passage by keeping violent repeat offenders off the streets.

“Repeat offenders are already doing life on the installment plan,” Reynolds said, only half-jokingly. “The question is, are you saving a lot of money when they’re on these crime sabatticals? An extraordinarily high percentage of violent crime is actually committed by a relatively small percentage of offenders, so three-strikes dropped that down. To suggest that some poor third-striker is being unjustly sentenced… an offender that’s a lifetime criminal has a rap sheet going back to childhood.”

These advocates keep their own lists of criminals who would have been released on parole without the law, including repeat sex offenders, murderers, and kidnappers. A report by former California Attorney General Dan Lungren found that violent crime dropped almost 27 percent in the four years following passage of the law, with homicide dropping by 40 percent. However, the LAO report stated that, “Our survey… found that there is little consensus among researchers about the impact of Three Strikes on public safety, even after more than ten years of application.”

Conventional wisdom on criminal sentencing is that the costs of imprisoning criminals (both dollar costs to the public and the human toll on the inmate) dictate that incarceration should be saved for those who present a threat to society. A criminal who serves time in prison is more likely to commit subsequent crimes, and more serious crimes, than one who does not serve a time.

The disparities between nonviolent and violent felonies—and the fact that sentences for those felonies are often similar— are measured against the larger issue of how laws are made in California, and how ballot-box measures contribute to the current backbreaking cost of the prison system.

“This is a good example of a situation where there’s a high profile case, and in response to the case there are voter initiatives placed on the ballot,” Cohn said. “These issues should be thoroughly considered by the legislature after hearing testimony from experts who have evidence relating to the consequences.”

Gina Giacopuzzi writes for the San Diego News Room where this story originally appeared.


Three Strikes 15 Years Later: We’re All Out -- of Money, and Time
By Tamar Todd, AlterNet
Posted on March 17, 2009, Printed on March 17, 2009

This month the California Supreme Court heard arguments in the case of Richard Allen Davis, who kidnapped and murdered a young girl named Polly Klaas over 15 years ago. The murder of Polly Klaas led to a wave of fear among Californians. That fear quickly turned to outrage and that outrage quickly led to the most heavy-handed, over-reaching, costly, and ineffective sentencing policy in California history. This policy has cost the state billions of dollars to incarcerate thousands of people convicted of nonviolent offenses for extraordinarily long periods. This month is the 15th anniversary of California's Three Strikes law.

Richard Allen Davis is a very violent person who should be imprisoned for a very long time. But California did not react to Polly Klass's murder by enacting a law to ensure that the Richard Allen Davises of the world would spend their lives in prison. (In fact, Mr. Davis was sentenced to death under existing California law). Instead, Californians saw fit to require that anyone convicted of any felony who had previously been convicted of more than one serious or violent felony would be sentenced to 25 years to life. A person with a prior conviction of one previous serious or violent felony would receive twice the prison term for any new felony conviction. There are a lot of felonies under California law, including petty theft with a prior and possession of a controlled substance. We now have people serving 25 years to life in California for drug possession, for stealing a pizza, or--in at least one sad case--a few chocolate chip cookies. Under California's Three Strikes law, first and second "strikes" are counted by individual charges, rather than individual criminal cases. This means two or three strikes can arise from a single case, even a case that was adjudicated years before the passage of the three strikes law. 

Convictions from all 50 states and the federal courts at any point in the person's past can count as strikes, including some offenses committed as a juvenile. Because of three strikes, California has been filling its prisons with a lot of people for long periods of time, many of whom do not deserve the lengthy sentences that judges have been forced to hand down. For example, there are 3,520 people in California's prisons on second or third strikes for drug possession offenses. At least 690 of them, convicted of third strikes, are serving sentenced of 25 years to life. It costs $49,000 a year to incarcerate a person in a California prison. It costs two or three times that amount to incarcerate older persons because of health care costs. Most persons serving a third strike will grow old and die in prison. It is costing Californians over $172 million each year to house persons convicted of a second or third strike for simple drug possession. Drug treatment is far cheaper--about one-tenth the cost--and far more effective. To be sure, some of the 41,089 second and third strikers in California prisons today are there for violent crimes. Those persons should receive long prison sentences--and they would have even without three strikes. But many of these so-called "strikers" are in prison for minor crimes that we--and eventually our children--will pay tens and hundreds of millions of dollars a year to lock away. California's Three Strikes law is the epitome of policy being driven by fear and politics rather than by reason and science. Unfortunately, much of the state's penal policies are similarly rooted. This is why California, for decades, has ignored the sound, cost saving, evidence-based recommendations of experts, blue ribbon commissions, and academic researchers as to how to sensibly cut costs and increase public safety through proven sentencing and parole reforms. This is why California's prisons are operating at nearly 200 percent capacity with inmates triple-bunked in hallways, gymnasiums, classrooms and clinics. This is why California spends over $10 billion annually on failing prisons, and why state officials have lost control of those prisons to federal judges.

In upcoming weeks, thousands of public teachers will receive pink-slips around the state because California can no longer pay them. State offices have shortened work-weeks and state workers are facing cuts and forced furloughs. Time has run out. As a matter of practice, California's incarceration policies are bankrupt--and are quickly bankrupting the state. 

Tamar Todd is a staff attorney at the Drug Policy Alliance. 


10 good reasons to ditch three strikes 
By JOHN PRATT - The Dominion Post 

DANGEROUS PRECEDENT: The United States' three-strikes law and order policies has seen 753 out of every 100,000 Americans end up in jail. 
ACT wants New Zealand to adopt the same strategy. 

OPINION The ACT party's "three strikes" component of the Sentencing and Parole Reform Bill - mandatory imprisonment for life with a minimum non-parole period of 25 years for third-time serious violent or sexual offenders - has passed its first reading. It is modelled on United States initiatives that have helped to give that country its remarkable imprisonment rate of 753 per 100,000 of population. 

The bill's supporters argue that it will reduce crime, its costs have been exaggerated and there is community support for it. I don't believe it will, for the following reasons.

First, the effect of the laws on reducing crime is quite small. While the crime rate has dropped in the US where they have these laws, it has also been dropping in most other Western societies (including New Zealand) since the early 1990s. Nor is it the case that it has dropped most in the US. There have been big drops in that country, but also in Canada, which does not have these laws.

The Canadian rate of imprisonment is just 116 per 100,000 of population (New Zealand's is 185). Furthermore, in the US the biggest drop in violent crime has not been in California, which has the most severe three strikes law but in New York, which has no such legislation.

Second, this bill is unnecessary. We already have a preventive detention law making possible indefinite detention for life. This is increasingly being used by the courts against violent and sexual offenders. Murderers receive life sentences anyway.

Third, it may make New Zealand prisons more dangerous. Those criminals it is used against will have nothing to lose and may become violent and disruptive. This in turn may lead to an intensification of costly prison security, as with the growth of US "supermax" prisons. These are jails within jails, where inmates are reduced to the most basic level of human existence. They have provoked (as have the three strikes laws) very costly litigation to test their legality.

Fourth, three strikes may lead to more crime, rather than less. Those committing a third-strike offence may commit murder rather than rape or grievous bodily harm, knowing the fate that awaits them if their victim lives to tell the tale.

Fifth, there is anecdotal evidence that juries may be reluctant to convict if they detect that a defendant may be on his or her third strike.

Sixth, I know of no reliable public support for this legislation. What public opinion poll evidence there is suggests that the general public is nothing like as punitive and vengeful as the bill's supporters seem to think. And for those who point to the 1999 law and order referendum, it has to be asked whether the 92 per cent of voters who supported the proposals for hard labour, longer sentences and so on would have voted for them if they had been told that it cost $1 billion dollars for just the four new prisons that became necessary in the referendum's aftermath. I doubt it.

SEVENTH, the three strikes will almost certainly not deter potential offenders. Most criminals do not weigh up the consequences of crime on a cost-benefit analysis. As any examination of the prison population will indicate, it is made up of people who, for the most part, have very little to lose by going to prison: they have all kinds of abuse and addiction problems, mental difficulties, come from broken families, were school failures, have high levels of illiteracy and are probably unemployable. No wonder deterrence research points overwhelmingly to the failure of "get tough" measures.

Eighth, it is likely to create additional burdens in our penal system. Like any system that is overloaded, it breaks down. Three strikes will contribute to the ageing of the prison population, placing new demands and costs on prison design and manpower, as has happened in the US. In some states the consequences of three strikes and other "get tough" measures have led to early administrative release from prison, reductions in prison terms, decreases in mandatory minimum sentences, freezes on new prison buildings, while the local three strikes laws themselves have been watered down.

This is because there is not enough money to pay for the increases in the prison population that such laws generate. In any democratic society where there are public expectations regarding not just the provision of safety and security but also the provision of services that enhance and improve the quality of life (such as health and education), there are limits to the level of imprisonment that can be provided.

Ninth, private prisons will not make three strikes more affordable. The evidence on the cost-saving capacity of private prisons is equivocal. What is clear, though, is that private prisons tend to operate at the low-security end of imprisonment, leaving public prisons to work with the most dangerous prisoners and to pick up the bill for the extra security that this necessitates.

Tenth, there is no guarantee that those imprisoned under a three strikes policy would go on to commit more crimes. Prediction studies indicate that the authorities have only about a 50 per cent chance of getting such assessments right.

To those who argue that the public has a right to protection regardless of cost, no responsible government can give such blank-cheque guarantees in the global credit crisis.

Political choices determine the way in which public money is spent, and it has to be asked what is going to be best for the long-term development of this country. Spending more public money on prisons or on health and education?

In the past 10 years, the New Zealand prison population has nearly doubled and the Corrections budget has more than doubled. The prisons black hole swallows all the public monies that are poured into it and still demands more.

This Government has the opportunity to make a fresh start and refrain from law and order theatricals that are high in volume but low in content. It should keep well clear of measures such as this that will further inflate the prison estate.

* John Pratt is professor of criminology at the Institute of Criminology, Victoria University of Wellington.


Appeals court overturns 3-strikes sentence
Bob Egelko, Chronicle Staff Writer

Thursday, January 1, 2009

(12-31) 15:13 PST SAN FRANCISCO -- In a rare case of a court overturning a three-strikes sentence, a federal appeals panel has rejected a term of 28 years to life for a sex offender from Los Angeles who missed one of his annual deadlines for reporting his whereabouts to police.

Cecilio Gonzalez failed to contact officers until three months after his birthday in 2001. He was convicted of violating the state law that imposes a lifetime requirement on sex criminals to check in with police each year within five days of their birthday.

The crime is a felony punishable by as much as three years in prison. With previous convictions for cocaine possession, robbery and attempted rape from 1988 to 1992, as well as lewd conduct with a minor, Gonzalez was sentenced under the state's three-strikes law. It requires a term of at least 25 years to life for any felon with at least two previous serious or violent felony convictions.

Defendants almost always lose appeals claiming that three-strikes sentences violate the constitutional ban on cruel and unusual punishment. That has particularly been true since 2003, when the U.S. Supreme Court upheld a 50-years-to-life term for a Southern California man whose third strike consisted of two convictions for shoplifting videotapes.

But the Ninth U.S. Circuit Court of Appeals in San Francisco ruled Tuesday that Gonzalez's sentence was "grossly disproportionate" to his crime.

Missing a deadline for the annual update of his records is "the most passive felony a person could commit," Judge Jay Bybee said in the 3-0 ruling, quoting a California court that described the offense as a "harmless and technical violation." 

Some states don't consider such conduct a crime, and only California imposes a potential life sentence if the defendant is a three-time felon, Bybee said.

The state has valid reasons for requiring sex offenders to register so police can keep track of them, Bybee said. But he said there was no evidence that Gonzalez had been trying to elude surveillance, noting that a jury had acquitted him of the separate charge of failing to report a change of address to police.

The last time the appeals court overturned a three-strikes sentence was in 2004, when it set aside the 25-years-to-life term of a shoplifter whose history of nonviolent crimes contrasted with Gonzalez's record of more serious offenses. Tuesday's ruling was also noteworthy because Bybee and another panel member, Andrew Kleinfeld, are among the court's most conservative judges.

The court said Gonzalez, 40, should be resentenced to a lesser term, which it did not specify. He has already served more than the maximum sentence for the crime. Acting as his own lawyer at his trial, he turned down a prosecution offer of a two-year sentence before his conviction.

"We would argue that he should be released," said his lawyer, Gia Kim, a deputy federal public defender. 

She said the key to the ruling was the court's recognition that Gonzalez's crime requires no proof of "evil intent" and that a sex offender can be convicted for simply forgetting the reporting deadline.

Deputy Attorney General Carl Henry, the state's lawyer, said his office was disappointed by the ruling but hadn't decided whether to appeal. 

Read the ruling 
The ruling in Gonzalez vs. Duncan can be viewed at:

E-mail Bob Egelko at .

Thomas Elias: Budget solutions have risks for politicians

Excerpt. . .

There's yet another sacred cow that, if changed, could put a major dent in the budget deficit: California's three-strikes-and-you're-out law. Efforts to change this law to cover only violent crimes have repeatedly failed ever since it was passed by the Legislature in early 1994 and later ratified by the voters via Proposition 184. As it stands, the law mandates 25-year-to-life sentences for three-time felons and doubling normal sentences for two-timers, whether their crimes are violent or not.

One result: Second- and third-strikers are partly responsible for the vast increase in California's prison population, which went from 23,511 in 1980 to more than 173,000 in 2006. The prison budget amounts to about $10 billion this year.

It costs an average of $43,287 to house, feed and guard one second- or third-striker today. The average cost of medical care for inmates over 55 years old now tops $60,000 per year.

Second- and third-strikers accounted for 41,724 prisoners in 2007. Only about 60 percent of them are violent offenders. The state could save billions without much risk by paroling many non-violent embezzlers, car thieves and the like to house arrest with electronic leg bracelets. The precise savings would depend on how many are let go.

This cost-cutting tactic, though, would require voter approval in a statewide election, unlike the two readily available revenue-raising measures.

But few laws are as popular today as three-strikes. So changing that also would involve major political risk - unless a panel of federal judges that's now studying ways to solve prison overcrowding without jeopardizing public safety takes the matter into its own hands.

Any one of these three actions would go far toward solving the budget problem. Doing all three eliminates the problem with no really new taxes. But only one, restoring the car tax to prior levels, is even under active consideration today.

The bottom line: Maybe it's time for state legislators to look at last beyond their own self interest and do what's best for the state, even if it's unpopular and puts their personal political futures at risk.

That would take unselfishness and political courage, of course, and Sacramento has been strikingly short of both commodities for decades.

Thomas D. Elias writes on California politics and other issues. His column appears Tuesdays. E-mail him at .


Going Down Swinging
What if three-strikes laws make criminals less likely to repeat offend—but more violent when they do?
By Ray Fisman
Posted Thursday, March 20, 2008, at 6:53 AM ET 

On Oct. 1, 1993, a man named Richard Allen Davis kidnapped 12-year-old Polly Klaas during a slumber party at her home in Petaluma, Calif. At the time, Davis was on parole after serving half of a 16-year sentence for a prior kidnapping and had accumulated a 25-year rap sheet with charges ranging from burglary to auto theft to public intoxication. Polly was found raped and murdered a couple of months later, and the public outcry that ensued led to the passage of a California law that mandated stiff prison sentences for convicted felons on their third offense. Davis had more than a dozen convictions when he abducted Polly Klaas. 

"Three-strikes" laws have now been enacted in 26 states, often with the stated purpose of keeping society safe from violent criminals like Richard Davis. But a new study released by the National Bureau of Economic Research finds that three-strikes laws like California's, while discouraging criminals from doing things like smoking pot or shoplifting, may push those who do continue in a life of crime to commit more violent offenses. The study's author, Radha Iyengar, argues that this is because under such laws, felons with a pair of strikes against them have little to lose (and often much to gain) by committing serious crimes rather than minor offenses.

Why would stiffer penalties increase violent crime? To understand this seeming paradox, you first need to understand the nature of California's three-strikes law. Not just any offense gets you a first strike. It must be a so-called "record-aggravating" offense, which includes violent crimes like assault and rape as well as serious nonviolent crimes such as burglary or drug sales to minors. But after strike one, strikes two and three can come from any felony, including minor offenses like possession of marijuana or even stealing golf clubs or videotapes. A third strike carries with it a mandatory sentence of at least 25 years in prison.

Now, put yourself in the shoes of a two-strike criminal. The prospect of 25 years behind bars for a third offense is likely to give even a hardened criminal pause before he or she crosses the street against the lights. So we'd expect two-strike felons to commit fewer crimes. But suppose you've already decided to break the law—maybe you need to make a quick buck. Are you going to lift a few golf clubs from the local pro shop? Or are you going to hold up a bank? The potential haul from a bank robbery is obviously much greater, and the penalty is the same: Bank robbery will get you decades in the slammer, but if it's your third offense, so will shoplifting. 

Even if you don't quite have the chutzpah to pull off a bank job, you still might end up committing a more violent crime if you're in a 0-2 hole. Let's say you opt for the golf club caper, but as you're making your getaway, you're cornered by a store security guard. Do you surrender quietly or pull out a gun? If strike three is looming, it's all the same to you whether you end up on trial for shoplifting or armed assault, so why not try to shoot your way out of an arrest? 

Proponents of three-strikes laws point to declines across the board in crime rates in California during the 1990s, following the passage of the three-strikes law—including rates of violent crime. But crime was dropping around the country during that period, with explanations ranging from new policing tactics to the legalization of abortion. With so much going on, it's hard to know how much, if any, of the decline comes from fear of a third strike. Instead of analyzing aggregate crime data, Iyengar looks at the lawbreaking choices of individual criminals. She examines how their lawbreaking activities change when the three-strikes law is on the books and also how their lawbreaking activities change depending on how many strikes they have against them. 

Using data from all criminal convictions during 1990 through 1999 in California's three biggest cities—Los Angeles, San Francisco, and San Diego—Iyengar finds that the three-strikes law did indeed have a large effect on the likelihood of recidivating (committing a crime after release from prison) in the two years following a prior offense. For those with one strike, the law reduced recidivism by 14 percent; this doubled to a 28 percent reduction for two-strikers, whose next crime would trigger the minimum 25-year prison term.

But that's where the good news ends. Three-strike-eligible criminals who actually do get arrested for a third offense commit more serious crimes. Burglars, for example, become robbers—these are both offenses that involve stealing, but robbery has the added element of force. Similarly, while thefts decline overall, assaults during thefts go up under three strikes, suggesting that an increasing number of thieves may, in desperation, be trying to muscle their way out of a third arrest (as in our golf club example). In general, arrests of three-strike-eligible felons are 20 percent more likely to be violent crimes (relative to no-strike criminals). 

(A Californian burglar on the verge of a third strike has an even safer option for his next act—take his activities out of state. Just across the border in Arizona, there's no three-strikes law at all, and in neighboring Nevada, the law is rarely invoked. So rather than breaking and entering in Los Angeles, why not take a road trip to Las Vegas or Phoenix instead? It seems that many criminals do. Iyengar finds that a larger fraction of repeat offenders recidivate out of state after the three-strikes law's passage.)

Overall, the three-strikes law did have the desired effect of deterring repeat offenders from striking again. But the law's original intent—motivated as it was by Polly Klaas' tragic story—was to avert further violent tragedies by putting habitual criminals away for a good, long time. It's putting away violent criminals, but Iyengar's study suggests it's also making criminals more violent. It's tempting to invoke the law of unintended consequences in thinking about what was perhaps a well-intentioned but flawed piece of legislation. But these consequences could have been entirely anticipated if legislators recognized that criminals, like all of us, often make decisions by rationally weighing the costs and benefits of their actions.

To make sure she's making apple-to-apple comparisons among felons, Iyengar compares the actions of criminals whose rap sheets are identical except for the order in which they committed their crimes. Since you don't start counting strikes until the first record-activating offense, order is crucial. For example, someone who is convicted for armed robbery—a record-activating offense—followed by shoplifting will have strike three looming; if he had reversed the order of his offenses, he'd have only one strike. So if the two-striker commits fewer crimes (but more violent ones) relative to the one-striker, we know it's the effect of the three-strikes incentives and not something about the different offense records of the two criminals.

Ray Fisman is the Lambert Family Professor of Social Enterprise and research director of the Social Enterprise Program at the Columbia Business School. His book with Ted Miguel, Economic Gangsters, is forthcoming in October 2008. 

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3-Strikes Case Against LA Man Dismissed 

New America Media, News Report, Words//Photos: Ken Kim, Posted: Sep 06, 2008 

LOS ANGELES—Edmond Brandy, who has two prior felony convictions, has been fighting for nine months against allegations of threatening a motorist and his passengers with a gun on an Orange County freeway. Under California’s three strikes law, the oil refinery worker could have faced 25 years to life in prison if convicted.

But late Thursday night, Brandy, five days after his 33rd birthday and a day before a motion for dismissal was scheduled to be heard, walked out of the Orange County jail, a free man. Several hours earlier, the Orange County District Attorney’s Office decided the charges against him should be dismissed. The evidence, which tied him to the alleged crime, was not enough to prove his guilt.

“The whole thing seemed unreal,” Brandy said. “I’ve never aimed a gun at anybody. I’ve never owned a gun in my life. I’ve been an innocent man all these days.”

Brandy had a sudden urge to go to bathroom on his way home in the family car that drove him away from jail. When his wife, Raeleen Taylor Brandy, asked him whether she should stop the car at a gas station, he told her to continue to drive. “I just want to get away from Orange County,” he told his wife.

Brandy's ordeal began on the morning of Oct. 26, 2007. Adrian Arias called 911 to report a road rage incident on the eastbound freeway 91 in Orange County, telling the authorities that the driver of a Volkswagen had threatened him and his three fellow passengers with a gun.

The California Highway Patrol conducted a two-month-long investigation into the incident, and discovered that the registered owner of the Volkswagen was on active parole for committing an armed robbery.

In the early morning hours of Dec. 13, 2007, authorities raided Brandy’s South Los Angeles home. Although the officers and detectives from California Highway Patrol found no gun, they arrested him.

“In the interest of Justice, our office felt that we couldn’t prove this case beyond a reasonable doubt,” Susan K. Schroeder, a prosecutor with the District Attorney’s Office, said. “Technically, he can be charged again but that is less likely to happen.” The DA’s office dismissed the case without prejudice—meaning the case is dismissed but the state is allowed to bring a new prosecution on the same claim.

According to Schroeder, upper levels in the DA’s office began paying attention to the case after the preliminary hearing in early July. 

Adrian Arias was unable to positively identify Brandy as the person who threatened him and his girlfriend with a gun, although he had previously picked out his mug shot from a photo line-up of six suspects.

The victims’ descriptions of the gun that Brandy allegedly brandished are inconsistent. Arias and his girlfriend Johanna Hipolito told the police they saw “a black gun with a round barrel.” However, the third victim, Ray Monroy, described it as “a nickel-plated semiautomatic weapon with a square type barrel.” The DA’s office wasn’t able to locate Monroy for the hearing.

Police have been unable to find the weapon that was allegedly used.

Judge James O. Perez, who presided over the preliminary hearing, warned the prosecution about weakness in the case. He said he wouldn’t vote for conviction if he were a juror.

“It’s travesty for this man to sit in jail for many, many months just based on clumsy evidence,” said Lonnie Brandon, Brandy’s attorney. “The race of Mr. Brandy and the locale where the incident allegedly occurred has everything to do with why the authorities kept him in jail.”

Brandy’s arrest last December not only devastated his family, but shook the African-American community in Los Angeles. Brandy has worked to change his life, dedicated himself to his wife and two young children, and was helping at-risk teenagers make the right decisions after getting out of prison. Recently, prominent local African-American politicians and grassroots organizations began showing interest in Brandy’s case.

It was past 11:30 p.m. Thursday night when a dozen family members and friends showed up at Brandy’s modest South Los Angeles home. They presented Christmas and birthday gifts for Brandy.

Raeleen Taylor Brandy cried softly in a corner of the living room, overwhelmed by the ecstatic reunion. Brandy, too, was blinking back tears, as he embraced his wife, his 2-year-old son and his sister, Deborah Brandy, an elementary school principal.

“I need to pick up things from where I had been forced to leave them behind,” Brandy said. “But tonight, I’ll just try to have a nice, good sleep. I’ll think about the rest tomorrow.”

“We still have many questions about Edmond’s case,” said Deborah Brandy. “At the same time, we will do our best to help him get back on his own feet, as we have done all these years.” 

Kenneth Kim is a Los Angeles-based reporter for New America Media.

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Stealth Initiative Threatens California Youth, Immigrants 

Legislators, Exonerees Call for Criminal Justice Reform 

L.A. Dad Faces Third Strike on Weak Charges

New America Media, News Report , Kenneth Kim, Posted: Aug 02, 2008 

Editor's Note: Despite a lack of evidence against him, an L.A. resident could be convicted of his third felony and serve 25 years to life under California's three strikes law. The new father, who recently turned his life around, doesn't deserve such punishment, friends and advocates say. New America Media writer Kenneth Kim reports from Los Angeles.

LOS ANGELES – Darkness still shrouded South Los Angeles in the early morning hours of Dec. 13, 2007, when authorities raided the house of Edmond Brandy, a 32-year-old man with two prior felony convictions, to search for a handgun that he had allegedly aimed at a passing car two months earlier on an Orange County freeway. The officers and detectives from California Highway Patrol found no gun but arrested him.

Seven months later, charged with brandishing a weapon at motorists and possession of a firearm by a felon, Brandy is fighting for his life and his family, which he just started building after getting out of prison two years ago.

Under California’s three strikes law, this oil refinery worker now faces 25 years to life in prison if convicted. 

Brandy and his wife, who were childhood friends, met again in church after he got out of prison and were married a little over a year ago. Now he faces losing her and his 11-year-old daughter and 2-year-old son.

As a teenager, Brandy drifted away and started hanging out with a group of troublemakers. After the death of his mother, at 19, he and his friends robbed a Beef Bowl with a BB gun. While he was serving the sentence for the robbery, he got involved in a fight in the prison yard, earning his second conviction. 

Since getting out of prison, Brandy has worked to change his life, dedicate himself to his family and help at-risk teenagers make the right decisions. 

Now he risks losing it all in what his family calls a blatant injustice.

“Even a judge saw the lack of evidence in my husband’s case,” said Raeleen Taylor Brandy, a behavior therapist for delinquent juveniles. “He’s never owned a gun in his life.”

The episode was set in motion in the morning of Oct. 26, 2007, when Adrian Arias called 911 at about 8 a.m. to report a road rage incident on the eastbound freeway 91 in Orange County, telling the authority that the driver of a Volkswagen had threatened Arias and his three fellow passengers with a gun. 

According to the police report, Arias was driving his 1992 Chevrolet in the carpool lane, going 40 to 50 mph because of the poor visibility caused by the dense fog. A Volkswagen that had been tailgating Arias’s car reportedly came within one foot of the car, and Arias tapped on his brakes. The other driver started honking his horn and flashing his headlights and then swerved into the next lane over so he was parallel with the car. Johanna Hipolito, who was sitting next to her boyfriend in the front passenger seat, flipped off the other driver with her middle finger. The other driver responded with the same gesture.

During the confrontation, according to Arias and Hipolito's statements, the other driver suddenly rolled down his a passenger window and aimed a handgun at them.

The California Highway Patrol conducted a two-month-long investigation into the incident, and discovered that the registered owner of the Volkswagen was on active parole for committing an armed robbery.

Brandy isn’t the first person to face life in prison under California’s three strikes law, which doubles the sentence of second-time felons and mandates 25 years to life imprisonment for those convicted of a third felony. 

The law aims to curtail felons from committing more violent crimes, yet groups advocating for its reform say that in practice it targets less violent, older offenders, and only contributes to an already overcrowded prison system. A report released by the Sentencing Project of Washington, D.C., a liberal think tank, indicates that, in the first five years after the 1994 law took effect, in nearly six of 10 cases in which offenders were imprisoned for 25 years to life, their third conviction was for a property, drug or other nonviolent crime. 

Groups like Families to Amend California's Three Strikes also claim that enforcement of the law discriminates against blacks and Latinos. Seventeen times more blacks have been charged under the law compared to whites in Los Angeles County. Forty-five percent of those who receive a third strike sentence are black, and 26 percent are Latino.

Brandy, who rebuilt his family after serving 10 years for the crimes he committed as a teenager, told police that the 91 Freeway is a route he used to go to work. But he denied any involvement in the confrontation.

His attorney and family have raised questions about the truthfulness of the witnesses’ statements.

At a court hearing in early July where more than 20 supporters of Brandy showed up, Adrian Arias couldn’t positively identify Brandy as the person who threatened him and his girlfriend with a gun, although he had previously picked out his mug shot from a photo line-up of six suspects.

The victims’ descriptions of the gun that Brandy allegedly brandished are inconsistent. Arias and his girlfriend told the police they saw “a black gun with a round barrel.” However, Ray Monroy, the third victim sitting in the left rear passenger seat, described it as “a nickel-plated semiautomatic weapon with a square type barrel.” The district attorney’s office wasn’t able to produce Monroy as a witness at the preliminary hearing because he couldn’t be located - the fourth victim is Arias's 2-year-old son. 

The weapon that was allegedly brandished at the victims has not been found.

Before sending the case to trial, Judge James O. Perez, who presided over the preliminary hearing, questioned whether the prosecution would be able to convince the jury beyond a reasonable doubt with the evidence it has.

“The burden of proving the defendant’s guilt beyond a reasonable doubt is not required in evidentiary hearings,” explained Judge Perez, who added, “If I were sitting in the jury, I wouldn’t vote for a conviction.” 

“How can a fellow be arrested based on a he-said accusation, and then be placed behind bars without any evidence whatsoever?” asked Deborah Brandy, the sister of Edmond who works as an elementary school principal for the Los Angeles Unified School District. “This is a grave injustice we’re looking at. As Dr. King so eloquently stated, an injustice anywhere is threat to justice everywhere.”

“Ex-convicts on parole often go back to prison,” added Raymond Taylor, Brandy’s father-in-law. “But Edmond turned his life around and was leading an exemplary life.”


Prison Games

California can't afford to play them anymore
Article Launched: 07/13/2008 07:29:57 AM PDT

'Aging inmates add strain on state prisons," said the headline in last Sunday's Reporter. It was affixed to an Associated Press report detailing how the average age of California prisoners is climbing, putting more pressure on the broken prison health-care system. 

But it wasn't prison health-care that captured the attention of The Reporter's editorial board, or the fact that the writer highlighted the problem by focusing on a Vacaville prison. It was a single paragraph describing why Louis Rodriguez - a 66-year-old inmate struggling through the final stages of liver cancer at the California Medical Facility - is even in prison. 

"He is serving a life sentence after being convicted of a 'third strike' for stealing candy and cheese from a Los Angeles County grocery store," author Don Thompson wrote. "The conviction in 2000 followed another petty theft and a string of robberies nearly 30 years ago." 

A life sentence for petty theft? And it's costing taxpayers $98,000 to $138,000 a year to incarcerate sick inmates such as Mr. Rodriguez - more than twice to lock up a healthy prisoner. 

Is this really what California voters had in mind when they approved Three Strikes 14 years ago? 

The law of unintended consequences has caught up with California. The state budget and the prison system are broken, and federal judges are now taking charge of the latter. 

Legislators, the governor and Department of Corrections and Rehabilitation officials have been working for years now to reduce overcrowded conditions in a system that was built for 100,000 inmates and now houses 159,000. That number, at least, has dropped from a 170,000 peak, but the prisons are still overcrowded. And there has been some effort to put "rehabilitation" back into the system's mission, in hopes of easing the recidivism rate that contributes to overcrowding. 
But to date, all efforts to reform the law that allows life sentences to be imposed for petty crimes have failed. An initiative to repair the Three Strikes law in 2006 was defeated by voters. Another initiative headed for this November's ballot didn't even qualify. And a recent attempt by the governor and Legislature to put together a sentencing commission that might bring some sanity to the process fell apart amid partisan squabbling. 

Indeed, of the 11 ballot measures (and counting) that California voters will weigh in on this fall, two would lead to even longer and stricter prison sentences, while a third would divert nonviolent substance abusers into treatment. 

One member of the lock-'em-up crowd, state Sen. George Runner, R-Antelope Valley, recently issued a report titled "Who Is in Our State Prisons?" in an attempt to show that there is nothing wrong with Three-Strikes - that California is about average when it comes to incarceration rates. 

That may well be true, but the same credible sources of Sen. Runner's statistics also show that incarceration rates are rising throughout the nation as politicians try to outdo each other in being tough on crime. At the middle of last year, the U.S. Justice Departments Bureau of Justice Statistics reports, there were 762 persons per 100,000 U.S. residents in jail or prison -11 percent more than in 2002, when the national incarceration rate was 684 persons per 100,000; 131 percent more than in 1997 when the rate was 330 per 100,000; and 348 percent more than in 1987, when the rate was 170 per 100,000. 

Because California's prison population didn't rise as quickly as Three Strikes opponents believed it might initially, Sen. Runner claims the law hasn't caused explosive growth in the prisons. 

"Equally dubious is the claim that California prisons are filled with low-level offenders and drug addicts," says the senator, who is backing one of the get-tougher ballot initiatives this fall. "The most recent census (Dec. 31, 2007) of state prison inmates ... reports that 53.1 percent of men in California's prison were committed for crimes against persons." 

A bare majority of inmates may well be serving time for violent crimes, but that leaves a substantial number who are incarcerated for nonviolent felonies. A California Legislative Analysts' report from a few years ago showed that at the end of 2004, there were 5,130 second- and third-strike inmates serving long prison sentences for merely possessing a controlled substance. Another 2,363 were imprisoned for "petty theft with a prior." 

California can't afford this. And since our Legislature and governor aren't willing to tackle sentencing reform, it's going to be up to voters to study those ballot measure carefully this fall, with an eye toward avoiding more unintended consequences.


Debra J. Saunders

Sunday, July 6, 2008

In 1994, Californians saw a state criminal justice system that too often let the worst criminals out of prison to wreak destruction and hurt the innocent, only to be sent back to prison for worse crimes.

Fresno parent Mike Reynolds had been pushing Sacramento to pass a "three strikes" measure after the murder of his 18-year-old daughter, Kimber, during a robbery in 1992. Then the rape and murder of Petaluma's 12-year-old Polly Klaas - kidnapped from her home by another violent career criminal - confirmed the voters' worst fears.

The public was ready. The Legislature was afraid. And both Sacramento and California voters passed tough "three strikes" measures.

This being California, there was a pro-criminal lobby that warned against the law, which mandated a 25-year-to-life term for the third offense by criminals who had already committed two serious or violent felonies. It also increased penalties for a second strike.

Longer sentences for career offenders? Horrors. 

Critics duly seized on state Department of Corrections forecasts, which ominously predicted that within five years, the prison population would more than double, from 124,813 to 245,554. The state would have to build 20 new prisons just to keep up. Within three years, opponents charged, prison spending would outstrip state spending on higher education.

Almost 15 years later, it turns out many of the so-called experts were wrong - and the voters were right. In approving the tough-on-crime measure, California residents didn't have to pay for an inmate population explosion or a bunch of new prisons. What voters got instead was a law that, for the most part, has worked the way it was supposed to.

Fact: California's inmate count was 171,444 last year - far below the grim projections. In part because other prisons already were in the works by the time voters approved "three strikes," Sacramento authorized and completed not 20 new prisons in five years, but only one new prison in the past 14 years. And that happened while the state population grew from 33 million to 38 million.

Yet critics won't even admit they were wrong. What's worse, they want the public to believe that their horror stories actually came to pass.

Every few years, lacking solid statistics, they throw out anecdotes - like the repeat offender who was sentenced under "three strikes" after snatching a pizza from a group of children - to argue that a draconian law has turned California into the Prison State, where petty criminals routinely are put away for life.

Why? Because they don't believe in harsh sentences for career criminals. They want repeat offenders to do long time on the installment plan. 

State Sen. George Runner, R-Lancaster (Los Angeles County), decided to fight back - with facts. His office put together a seven-page paper - "Who Is In Our State Prisons?" - that debunks many of the oft-repeated "three strikes" misinformation that paints California as a state that over-incarcerates. The paper points to a study released in February by the Pew Center's Public Safety Performance Project, which placed California in the middle quintile of American states in terms of inmates per capita. For the record, the Pew Center has been critical of "three strikes" laws.

Think that California prisons are teeming with petty offenders? Think again. The Runner paper cites a federal survey that found that 47 percent of California inmates are repeat violent offenders, and 33 percent are repeat nonviolent offenders. Most of the rest are first-time felons who committed crimes against people - think murder, manslaughter, robbery, assault, kidnapping, rape or other sex offenses.

California's crime rate fell dramatically after "three strikes" passed. In 1993, the year before voters approved the measure, the FBI ranked California fourth among the states for total crimes per 100,000 people; in 1999, the murder rate had been cut in half, and California's crime rate had fallen to 29th place.

As far as Runner is concerned, long penalties have made California safer. The "three strikes" law, he said, "keeps people in prison longer. It also makes people's behavior change."

His aide Charlie Fennessey points to burglary convictions as proof that criminals have changed their behavior to keep up with the changed laws. After 1994, he found, some crimes - second-degree burglary and car theft, which are not "three strikes" offenses - increased to earlier levels, but first-degree burglary, a "three strikes crime," remained flat.

"There's no rational explanation as to why the trends in burglaries would be bifurcated," Fennessey said, "unless it had something to do with the penalties."

Adam Gelb of the Pew Center provided an alternate explanation. Although he has not studied California's "three strikes" law, he noted, "There is a very common occurrence in courtrooms across the country. It's called 'losing the gun.' " The theory is that criminals are behaving as before, but officers of the court are charging criminals for lesser offenses to avoid "third strike" overkill.

"There's no evidence that anyone on the street knows the going rates for what their sentence is going to be or how those punishment rates have increased or decreased over time," Gelb said.

"To say that 'three strikes' has worked, the question is: Compared to what? Since there is so little evidence in any context that longer punishment acts as a general or a special deterrent, it's hard to say that California taxpayers have gotten their money's worth and could not have prevented more crime with a variety of strategies."

Michael Rushford of the Criminal Justice Legal Foundation in Sacramento conceded that some prosecutors may be under-charging to avoid the longer sentences for repeat offenders. But many prosecutors are not. And the Runner report shows that the "three strikes" law has locked up career criminals - which means that voters got from "three strikes" what they wanted.

Seth Unger of the California Department of Corrections and Rehabilitation told me that more than 1,000 third-strikers entered California prisons in 1995-96, but only 294 third-strikers entered the system 10 years later. Something has changed. Said Unger, "What 'three strikes' was designed to do was cut down on the churning of the prison population. We know that people (who are third-strikers) are not going to be coming back any time soon through the front gates, because they're not getting released."

When "three strikes" was put on the ballot in 1994, I voted no, because I believed that the third strike should apply only to a serious or violent offense. I, too, believed that low-level offenders, not career criminals, would be locked behind bars for decades for petty crimes. So why can't other critics just admit they made a mistake?

"The fundamental reason that critics of tough criminal penalties cannot come to grips with the facts is their unshakable belief that longer sentences inevitably increase prison population," the Runner report said. As if on cue, a February Pew Center paper asserted that laws like "three strikes" drive up the prison population.

"Opponents of tough criminal laws cannot accept that penalties deter crime," the Runner report said.

It's that simple.

It appears that petty criminals have either left the state or changed their ways. If they committed crimes, some at least committed different crimes. And when some small-time thug did get nicked for a small crime, it turned out the guy had a host of priors and couldn't stay out of prison to save his life.

Rather than celebrate the fact that California prisons are protecting the public by keeping violent, serious and repeat offenders behind bars, some California policy leaders actually want to neuter the "three strikes" measure or even get rid of the law.

Perhaps the "three strikes" supporters should follow the example of their opponents: Argue that if we get rid of "three strikes," not only will crime surely go up, but worse, we'll also have to build 20 new prisons. We'll start to spend more on prisons than we spend on higher education. If we get rid of "three strikes," the prison population will explode. 

And this time, the dire predictions might turn out to be true.

Who's in prison 
California state prison population (male) as of Dec. 31, 2007: 160,144

Crime*  Prisoners % of total prison population 
Murder 22,005 13.7 
Manslaughter 3,556 2.2 
Robbery 18,920 11.8 
Assault/battery or with deadly weapon 23,276 14.5 
Rape, child molestation and other sex crimes 14,812 9.2 
Kidnapping 2,428 1.5 
Crimes against people subtotal 84,997 52.9 
Burglary 12,379 7.7 
Arson 409 0.3 
DUI (with priors or injury) 2,320 1.4 
Escape 109 0.1 
Felon in possession of a weapon 6,532 3.8 
Theft with a prior felony 3,821 2.4 
Drug manufacture, sale, or possession for sale 18,711 11.8 
Lesser offense with serious or violent priors 9,620 7 
Total inmates convicted of crimes against people, serious or violent crimes, or crimes aggravated by prior felony convictions** 138,898 86.7 

E-mail Debra J. Saunders at

This article appeared on page G - 2 of the San Francisco Chronicle

Response:   Thursday, July 10, 2008

No bargain

Editor - States need enough prison cells to lock up violent and career criminals. But in arguing that California's "three strikes" law has been a bargain, Debra J. Saunders ("Escaping the myth of 'three strikes' state prison law," July 6) ignores the realities of California's correctional system and the value of strategies that are tough on crime without being so hard on taxpayers.

New York has no three strikes law, but its violent crime rate has fallen faster than California's since 1994, when California's three strikes took effect. 

Over that same period, New York's corrections spending grew from $2 billion to $2.6 billion while the cost to California taxpayers jumped from $2.9 billion to $8.8 billion. And that doesn't count the $7.4 billion extra that California lawmakers approved last year to alleviate severe overcrowding or another $7 billion a federal receiver says is needed to provide adequate inmate health care.

States like Arizona, Texas and Kansas are controlling both crime and costs by building strong community corrections options for low-risk offenders, which helps ensure there's sufficient prison space for dangerous criminals. 

Rather than simply trying to demonstrate they're tough on crime, these states are delivering a higher return on taxpayers' investments in public safety.

ADAM GELB, Director 

Pew Center on the States 

Washington, DC 

Is California's Original Three-Striker Innocent of the Car Theft That Sent Him Away for Life?
Thursday, July 3, 2008 - 3:00 pm

Dude, I Stole That Car!

Is California’s original three-striker innocent of the car theft that sent him away for life? One man says yes–and confesses to the crime himself 



Paul J. Coppola 

The man in the mustard-yellow jump suit stands patiently behind the black wire cage. Handcuffs attached to each wrist are chained to his waist. Another chain binds his ankles. When a deputy unlocks the cage and leads him to a nearby chair, he’s forced to take tiny steps; he seems apologetic for the inconvenience to his escort. When he sits down, the guard unlocks the prisoner’s left handcuff from the chain around his waist and fastens the other end of the cuff to an armrest. 

Thomas George Cargill, a graying but thick-haired 49-year-old man of average height and build, nods gratefully. Despite the restraints that provide a glaring reminder of the past decade and a half he’s spent behind bars, he’s in a good mood. After being convicted of a crime and sentenced to 25 years to life in prison as the first California resident to be convicted under the state’s so-called Three Strikes mandatory sentencing law, Cargill has finally won a court hearing, in which he can tell a judge he’s innocent. 

He’s been behind bars since May 29, 1994, when police arrested him for stealing a BMW convertible from a Huntington Beach car dealership. Cargill has always maintained his innocence, insisting that his then-girlfriend and her family set him up. Now, he has a letter from a man claiming he lent Cargill a Mercedes-Benz that witnesses who testified against Cargill may have mistaken for the stolen BMW. Even more important, he has a witness who is waiting on a bench outside the courtroom. And that witness is about to testify that he, not Cargill, stole that BMW. 

The Orange County district attorney’s office has done everything it can to prevent Cargill from getting his wish. Elizabeth Molfetta, a veteran attorney who has handled countless such writs of habeas corpus, has already filed detailed legal paperwork opposing the request. Although nobody says it, everybody in the courtroom knows that whether Cargill wins a new trial or goes straight back to state prison rests almost entirely on the credibility of the tanned man with thinning hair and brawny forearms who is outside waiting. 

A few minutes before 2 p.m. on June 5, Judge Thomas M. Goethals strolls into the courtroom. 

“I’ve read the entire case file,” Goethals says. “Frankly, now that I have some idea what the case is about, I’ve read some portions more carefully than others. The nature of this proceeding is a little unclear to me . . . [but] where I think we are going in this hearing is . . . Cargill is claiming we should have a new trial based on new evidence.” 

If Goethals believes that the man on the bench, not Cargill, stole the car, then the first Californian to be sentenced to life in prison thanks to Three Strikes could become a free man. Over the next three hours, Cargill’s future—a life behind bars or the hope of a new trial—will hang in the balance. 

*   *   * 

Back in the 1980s, Thomas Cargill had a bad habit. If he saw a car he liked, he took it. He favored high-end European luxury models that were so brand-new they were actually still sitting in a car dealership’s parking lot. Problem was, Cargill wasn’t too good at stealing them. 

Between 1983 and 1992, Cargill went to prison four times, twice for auto theft and once each for burglary and receiving stolen property. The first time police arrested him for stealing a car was in 1983, when Huntington Beach cops pulled him over while he was driving a Porsche that a month earlier had been liberated from a local dealership. He’d already made a second set of keys for the car. Cargill was convicted of stealing the vehicle and sent to prison. 

Two years later, he stole a Volkswagen from another Huntington Beach dealership, and later that year, a Porsche from a dealership in Newport Beach. Cargill pleaded guilty and went back to prison, but in 1992, he got caught again. Twice that year, cops caught him driving stolen cars: a BMW and a Volkswagen Cabriolet. Again, he pleaded guilty and received a three-year prison term. But on Dec. 29, 1993, Cargill got lucky, and after serving roughly half his sentence, he was released on parole. 

By all accounts, just five months later, on May 29, 1994, Cargill got into a heated argument with his girlfriend, Holly Fawcette, at the Huntington Beach apartment she shared with her 2-year-old daughter and her nephew, Joshua Drenk. That night, Drenk wasn’t home but at his other aunt’s nearby apartment, hanging out with his father, John Drenk, and two uncles. According to Amber O’Rourke, a neighbor who later spoke with police, Cargill and a bathrobe-clad Fawcette walked out of the apartment, yelling at each other. After a few minutes, Cargill went into the garage and pulled out in what O’Rourke says was a BMW convertible Cargill had been driving for the past month or so. In the process, he scraped the side of the garage and tore off a yellow side reflector before he sped down Elm Street toward nearby Beach Boulevard. 

O’Rourke offered to watch Fawcette’s daughter while Fawcette called her brother to see if she could stay at his apartment. At 8 p.m. that night, John Drenk returned with his two brothers and his son, Joshua, to help Fawcette move her belongings. While Drenk was packing clothes upstairs, he heard Fawcette yell from the garage. He ran downstairs and saw Cargill standing there with his hands on the wall near the garage door. Drenk and his brothers told Cargill to leave, and they began arguing. Cargill said he had “some stuff, some old clothes” that he wanted to take with him. 

According to Drenk, Cargill grabbed a pack of cigarettes and a set of car keys and walked off. A few minutes later, Huntington Beach police officer Sam Lopez pulled up on Elm Street, responding to a 911 call by O’Rourke. He ordered Cargill to stop and, after speaking with Drenk and his relatives, suspected that the BMW they said Cargill was driving had been stolen. Lopez called in the vehicle’s description, but it was Joshua Drenk who first discovered the car parked around the corner in a Howard Johnson’s parking lot. 

Another cop who responded to Lopez’s call searched the BMW and, in a driver’s-side-door compartment, found a pink small-claims-court summons with Cargill’s name. Police promptly arrested him for stealing the car. Besides the slip of paper, they found no physical evidence tying him to the car: no fingerprints and no car keys. 

Lopez and another officer checked the route between the apartment and the car without luck. The next day, Detective Robert Westlake examined Cargill’s property at the police station and the tow yard where the car had been taken; he did not find any keys. He and his partner returned to the apartment complex and checked the area, but again, they found no keys or other evidence linking Cargill to the car. 

Four months later, after a two-day trial during which his defense attorney called no witnesses and presented no alternative theory about the car theft except that Fawcette’s family “set him up,” a jury convicted Cargill of stealing the BMW. Cargill had taken a big risk, insisting he was innocent and rejecting a plea deal that would have allowed him to serve just four years behind bars. 

After being convicted, while incarcerated at the Orange County Jail, Cargill was arrested again, this time for heroin possession. Once again, he insisted he was innocent, claiming that another inmate had confessed to him that he surreptitiously dropped the drugs into his pocket while standing in the chow line. The heroin case (he was found guilty in March 1996) delayed sentencing in Cargill’s auto-theft case, but finally, on May 6, 1997, some three years after being busted for stealing the BMW, Cargill became the first Californian to be sentenced to 25 years to life in prison under the state’s brand-new Three Strikes law. In legal forms he wrote from prison, Cargill appealed the car-theft verdict and lost. 

One day, after 11 years behind bars, a glimmer of hope arrived in the form of Paul J. Coppola, a self-described alcoholic and drug addict who’d been sent to prison for a few too many DUI arrests. In late 2005—the exact date is unknown—Cargill was hanging out in the outdoor recreational area at Pleasant Valley State Prison in Coalinga when an inmate introduced him to Coppola, another convict from Huntington Beach. 

A brief conversation ensued, during which time Cargill and Coppola recognized each other as drinking buddies in the months leading up to Cargill’s arrest. The exact dialogue that allegedly took place is lost to history and poor recollection for detail (on Coppola’s behalf at least), but it ended with a spectacular punch line: Coppola, upon learning that Cargill had been busted for stealing a BMW in May 1994, confessed that he had stolen the car in question. 

Coppola also told Cargill he’d be more than happy to sign a declaration and, if necessary, testify in court that he, not Cargill, was the thief. On June 5, this promise brought him to Westminster and the courtroom of Thomas Goethals. 

*   *   * 

After several minutes of procedural discussion about the case, Cargill’s defense attorney, James Crawford, calls Coppola to the stand. He calmly strides forward, takes his oath and sits down, facing Crawford. For the next hour, he tells the story of how he stole the BMW and inadvertently caused Cargill to fall under suspicion for his crime. 

It all started at Club 5902, a nightspot in Huntington Beach. Coppola had just moved to the city from Mammoth, and he was trying to get a fresh start in life after checking out of an alcohol-rehab program. According to Coppola’s own testimony, he wasn’t off to much of a start: He estimates that he went to the club several nights a week to drink at the bar. In February 1994, he met Cargill at the bar for the first time. 

“We were in the club together having drinks,” Coppola testifies. At the time, Cargill had a suspended license and no car. “He asked if I could give him a ride home,” Coppola recalls. “I did. After a while, we exchanged phone numbers.” 

Because Coppola didn’t know Cargill too well, he didn’t feel comfortable giving him his real name. He told Cargill his name was Paul West. A few days later, Coppola gave Cargill another ride. Cargill, who always seemed to have cash on hand, would buy him drinks and offer to pay for gas. “I was trying to do something around Huntington Beach to make money,” he says. “He would call me when he was at his girlfriend’s house. . . . Two or three times a week, I saw him.” 

After a few weeks, Cargill even gave Coppola a pager, which would ring whenever Cargill needed a ride. On May 13, 1994, Coppola says, he was hanging out at Jack’s Sugar Shack on Huntington Beach’s Main Street with an acquaintance named Smiley; Coppola is not sure about his last name. “Ochoa, maybe,” Coppola says. “I asked him if he could get me some weed, and he said he could hook me up if we drive to Santa Ana.” 

The pair drove north along Beach Boulevard, and as they reached Heil Avenue, Coppola says, he noticed some movement inside a parking lot at Huntington Beach Dodge. “I see a man come up to a car, a BMW, blue, it was a convertible . . . a 318i,” he says. “He was putting a key in a lock box on the window. But as he done it, he walked away, and it fell back open.” 

Coppola told Smiley to pull a U-turn. “I got out, went over to it, opened [the lock box] and took it [the key],” he says. “I got back in the car and went to Santa Ana and picked up some weed.” Figuring that he’d return to the dealership on the weekend, when it would be less busy, he waited a few days. At 2 or 3 a.m. on the morning of May 16, he says he returned to actually steal the car. He says he got a ride to the dealership from a “lady” he met at a bar. 

“I asked if she could give me a ride to get dropped off around the corner,” he says. “I walked over to the car, I got the key, took the lock box out, shoved it under the car behind us, took off, drove around the corner and took off some stickers.” 

“Was Thomas Cargill with you when this happened?” Crawford asks. “Was he aware you stole this vehicle?” 

“No, Thomas Cargill had no idea this happened,” Coppola responds emphatically. “He had no idea it was stolen.” Coppola adds that Cargill never even set foot in the car, but saw it once or twice. “I said I borrowed it from my brother,” Coppola adds. “He never got in the car.” 

On May 29, 1994, the night Cargill was arrested for stealing the BMW, Coppola says that Cargill paged him and asked him to pick him up at his girlfriend’s apartment. “He asked if I would come over and pick up some bags,” Coppola says. When he arrived at the apartment complex, he saw the pair arguing outside. “He put the bags in the back of my car. They kept yelling and going at it. I felt uncomfortable. I had a stolen car.” 

Without warning, Coppola says, he sped away with Cargill’s bags in the back seat of the convertible. The wind began to blow some of Cargill’s paperwork around, so Coppola pulled into the nearby Howard Johnson’s parking lot and put the roof down. He then glanced over the fence and could see Cargill standing in front of the garage arguing with several men. “I thought they were going to beat him up,” he says. “I thought I’d go back and pick him up.” 

But by the time Coppola drove back to the apartment, he saw Cargill being followed down the street by the same men. As he watched, a police car arrived. So Coppola drove back to the Howard Johnson’s and put all of Cargill’s belongings in the trunk. He then walked back toward the apartment. “I saw they had him handcuffed,” he says. “I thought, I’m not going over there and get involved.” 

As he walked back to the car, he saw a police cruiser pull into the Howard Johnson’s parking lot. He kept walking. “I decided to make a phone call to get a ride,” he says. He never saw Cargill again at the bar and figured maybe he’d been arrested for something, but Coppola never expected it would be for stealing the BMW. 

“I stole the BMW,” Coppola says, concluding his testimony. “Mr. Cargill had nothing to do with it. I couldn’t even care, but I feel bad all these years. . . . I want to do the right thing.” 

*   *   * 

As Coppola winds up his story, he’s clearly gotten the attention of Judge Goethals. He has just provided an incredibly detailed story that completely exonerates Cargill. His testimony also fills in certain gaps in the case—including why police were never able to find any keys in Cargill’s possession. One inconsistency: Coppola says he put Cargill’s bags in the trunk of the BMW; police didn’t find them in the car at all. 

A big part of the original case against Cargill was courtroom testimony by John and Joshua Drenk alleging that Cargill borrowed tools to bust open a lock box a few weeks before his arrest. But as Cargill has already argued in pro se declarations leading up to this hearing, employees of the car dealership apparently never mentioned the lock box being missing—just the keys. In fact, transcripts of Cargill’s original trial show that those employees testified that they originally thought the car’s owner had simply kept his keys with him when he dropped the car off for service and later had come back and retrieved the vehicle. 

They didn’t realize the car had been stolen until they called the owner and he insisted he’d left it there with the keys. Coppola’s testimony that the lock box was unlocked and that he left it under a nearby vehicle would not only solve that mystery, but also indicate that the Drenks’ testimony against Cargill was untrue, just as Cargill had always said it was. 

After Coppola finishes talking, DA Molfetta begins to cross-examine him. First, she questions why Coppola would feel comfortable enough to give rides to Cargill but not give his real name. “I didn’t know him that well,” Coppola replies. “I wasn’t going to give him my real name.” Coppola insists that he told Cargill his name was Paul West because that was the surname of his brother by a different mother, who owned a business where he briefly worked, and he had that name printed on his work uniform as a joke. 

Then Molfetta asks Coppola to explain how he expected anybody to believe he stole the BMW when he had never stolen a car in his life, despite a long criminal record for driving drunk and passing bad checks. “I don’t know,” he responds, defensively. “A key fell out. It was my lucky day. I wanted to look cool in a nice car.” 

Molfetta continues to prod Coppola with questions. While Coppola has an amazing ability to recall the details of his theft of the BMW, he repeatedly fails to remember other events she asks him to describe. Suddenly, Coppola seems to crack under the pressure. “You know, all this is, lady?” he seethes. “I stole this car, and if you want to make something of it . . .” 

Molfetta raises her eyebrows as the two deputies in the courtroom begin marching toward Coppola, who remains seated. Goethals waves them off, but they stand ready to arrest him. “That’s not the way this works,” Goethals tells Coppola, instructing him not to address anybody unless answering a question. He instructs Molfetta to continue her interrogation, but she’s finished. 

And then something happens that nobody, least of all Cargill or Coppola, could have possibly expected: Goethals begins his own, grueling examination of Coppola, something that is very rare and perhaps motivated by the brevity of Molfetta’s cross-examination. Generally, judges sit back and let the lawyers do the fact-finding, but Coppola’s incredible tale has stirred Goethals’ curiosity. Among other things, he repeatedly asks Coppola to recite his own criminal record as well as what drugs he was taking at various times in his life. 

“I don’t usually ask questions, but this is a really unusual case.” Goethals explains. 

*   *   * 

Coppola states that he was doing coke from 1985 to 1997, heroin from 1993 to 2002, and drinking from 1985 to 2002. “I’m in a program right now,” he adds. “I’m working on all my addictions.” He also admits that he was snorting coke and drinking on the day he stole the car. 

“What were you drinking?” Goethals asks. 

“A little bit of everything,” Coppola responds. “I have three DUIs. I was doing coke and had started using heroin.” 

“You’re changing your story,” Goethals says. “First drugs, then just alcohol, and now drugs.” 

Things don’t get much better for Coppola—or Cargill, for that matter—from there. After an increasingly disdainful barrage of questions, Goethals dismisses Coppola from the room and begins to spell out his reaction to the testimony. “Coppola . . . is a problem,” he says. “Any person with a brain . . . Why should I believe him?” 

Crawford struggles to sway the judge. “Because the story makes sense,” he says. “Like what happened to the key. When you look at the trial testimony, there are gaps. The mystery of the lock box. It also explains how the BMW got to that location that night.” 

Crawford waves in the air the letter by another witness, who claims he lent Cargill his Mercedes-Benz, which witnesses may have confused for the BMW they testified Cargill was driving in the weeks leading up to his arrest. He reminds Goethals that neighbor O’Rourke testified that Cargill had been driving the supposed BMW for roughly “two months,” which would be impossible given that the car had only been stolen two weeks before he was arrested. “Mr. Cargill is spending 25 years to life for this verdict. I think this verdict should be right. All he is asking for is the chance to put it before another jury.” 

Molfetta shakes her head. “There is no confusion between a BMW and a Mercedes-Benz,” she says. “The defendant has a history of stealing expensive cars from Huntington Beach dealerships. And Coppola has never done this before. But on this one day, Coppola steals the car. And lo and behold, it ends up in [Cargill’s] back yard!” 

Goethals screws his face up into a portrait of intense concentration. “I don’t find [Coppola] particularly credible,” he says. “He says, ‘I have a difficult time remembering details, but I remember one time driving up Beach Boulevard and seeing this nice car and stealing it.’” 

Equally dubious to Goethals is the prison-yard meeting a decade later. “You don’t see Mr. Coppola for 11 years, and you have this fortuitous meeting in this prison yard, and when he can no longer be tried for the crime, he confesses.” 

Although Crawford has pointed out that Coppola risks a perjury conviction by confessing to the robbery, Goethals is clearly suspicious of the timing of the confession, given that it arrived just after the statute of limitations for auto theft has expired. It doesn’t help matters that Cargill can provide no proof he ever made any effort to find the man who happened to be giving him a ride in a BMW the night of his arrest, but who apparently went unnoticed by all the witnesses who testified against Cargill. (After Coppola confessed to Cargill, both Cargill and his parents signed declarations stating that they had tried to locate Coppola to testify in the original trial, but that they couldn’t find him without knowing his true surname.) 

But more suspicious than all that, to Goethals at least, is the prison-yard meeting. To Goethals, it has the distinctive whiff of a work of fiction, namely the scene in Shawshank Redemption in which the protagonist learns from a fellow prisoner that another man has bragged in convincing, unimpeachable detail about the murder that put him behind bars. “It’s one of my favorite movies,” Goethals says. “That scene is the only one where I was scratching my head.” 

Dispassionately, Goethals then announces that he will not grant Cargill’s request for a new trial. “When I began looking at your case, I was hoping I could grant you relief,” he says. “Eventually, we are going to have to release three-strikers. I don’t know if that will affect you, but maybe you will be one of them. Good luck to you, Mr. Cargill.” 

Cargill is dumbstruck, frozen in his seat. Crawford whispers in his ear as Molfetta walks out of the courtroom. Goethals stands up, watching Cargill trying to come up with a last-minute line of argument. But Goethals is having none of it. “We’re done here,” he says. “It’s time go, Mr. Cargill.”

*   *   * 

At press time, Thomas Cargill was on his way back to Pleasant Valley State Prison, where he has spent the past 14 years for stealing the BMW; he will not be eligible for parole until 2019. For his part, Coppola, who has been out of prison for only a few months, says he can’t understand why Goethals didn’t find him to be a credible witness. 

“I don’t know why the judge would think I was bullshitting for somebody I just met,” he says. “I just wish everything had worked out, and Thomas would get out, and it would be headline news, but now they are going to make me look like a liar.” 

Coppola says he never considered whether the statute of limitations had expired on the crime, but that he was prepared to go back to jail if necessary. “I discussed it with my family,” he says, “and they said, we don’t want you to go back, but if need be, you have to do the right thing.” He thought that testifying on Cargill’s behalf would make granting him a new trial a “slam-dunk” case. 

Meanwhile, he says, he’s busy working as a roof installer and trying to keep clean. “I promised my mom I’d never go back to jail,” he says. “That’s why I’m staying with her at the moment because I’m trying not to fall back into my old ways. I don’t need no monkey on my back.” 

Confessing to the crime that put Cargill away for life is part of the process. He continues to insist he’s the real thief. “When I saw him in prison, I told him I was going to straighten this out,” he says. “Why should he be in prison for something that wasn’t his doing?” 



Suspect in Yolo deputy's killing had avoided '3 strikes' lockup
By Andy Furillo -
Published 12:16 am PDT Wednesday, June 18, 2008

Marco Antonio Topete 

By last fall, the suspect in Sunday's shooting death of Yolo County Sheriff's Deputy Jose Antonio Diaz had accumulated a record of violence and two prior felony convictions.

So on Oct. 26, 2007, when Woodland police nabbed Marco Antonio Topete for possession of six-tenths of a gram of cocaine, authorities had a chance to put him away for a long time.

But police, prosecutors and parole officials never could quite close the loop on Topete.

As a parolee with two serious and violent prior felony convictions, Topete, 35, was a candidate for a 25-years-to-life term under California's "three-strikes" law.

On Tuesday, as details of Topete's history emerged, Yolo County Sheriff Ed Prieto said investigators had found empty shell casings at the scene of Sunday's shooting. Prieto said he believes Diaz might have fired at the suspect.

Prieto also said the bullet from a high-powered rifle penetrated Diaz's protective vest and hit him in the left chest area. Diaz was nonetheless able to describe the suspect, Prieto said. When he was captured, Topete was wearing clothing described by Diaz.

North of the crime scene, in Arbuckle, a man who lived across the cul de sac from Topete's mother's residence, within sight of Interstate 5, said he noticed Marco Antonio Topete had moved in about two weeks ago.

No one was at the Topete home; the front door jamb was damaged from a forcible entry by law enforcement officers who had searched the property.

Topete, said neighbor Joel Hernandez, was a regular at neighborhood parties.

"He was a good kid," said Hernandez. "We spent a lot of time together. Hamburgers or carne asada, you name it, at parties. It's a surprise what has happened."

Hernandez said he was aware Topete had served time in prison, but that the record did not prevent neighbors from embracing him when he was released.

Topete's profile among some neighbors conflicts with a history that almost led to his third criminal strike.

Last October, Woodland police arrested Topete just after midnight behind the wheel of a car seen speeding and tracked to Zitio's, a bar and restaurant on East Street, according to California Department of Corrections and Rehabilitation officials and the suspect's former lawyer.

Lt. Charlie Wilts said Woodland police submitted the case to the Yolo County District Attorney's Office.

Prosecutors declined to file it, however, when they couldn't prove which of the four people in the car Topete was driving that night actually possessed the drugs, according to the California corrections department.

Yolo County Chief Deputy District Attorney Ann Hurd declined to discuss the case.

"My ethical obligations are that I can't," she said.

Steve Sabbadini, the Woodland lawyer who represented Topete last fall, said the District Attorney's Office made the right call.

"There was no proof the drugs were his," Sabbadini said. "The drugs were found on the left rear floorboard of the vehicle. That's exactly where a passenger was sitting who ran when the car was pulled over. So the district attorney clearly made the right decision. There was insufficient evidence to proceed on Topete on that."

Topete was on parole at the time for a 1998 conviction on assault with a semiautomatic rifle. He also had a prior 1994 felony for negligent discharge of a firearm. Both are considered "strikes" under California's landmark 1994 sentencing law.

The 1998 case had initially been filed as an attempted murder with an allegation that Topete had inflicted great bodily injury on his victim in what court papers described as a gang shooting, according to the Yolo Superior Court records.

Hurd declined to comment on the plea bargain.

Parole officials placed a jail hold on Topete after the Oct. 26 arrest. Corrections spokesman Oscar Hidalgo said agents submitted a case to the Board of Parole Hearings that Topete had violated the terms of his release from prison by possessing the cocaine, drinking alcohol – he admitted to police that he had downed three beers – and hanging out with "prohibited" persons.

One parole administrator wrote in Topete's case status report that he was "a serious and violent offender" and "a risk to public safety."

Topete's risk assessment prepared by parole officials scored him a 10 on a scale of 10 for "violence," "history of violence" and "current violence," according to corrections documents.

They sent his case to the Board of Parole Hearings, where Deputy Parole Commissioner B.J. Moore, in a Nov. 14 hearing, sustained the alcohol charge and sentenced him to the 17 days time served dating back to Oct. 28, the documents said. The other alleged parole violations were dismissed.

In providing a basis for the disposition, Moore wrote that Topete "has been out of custody for a year and six months with no parole violations."

Moore also found that Topete "is employed and is married with children and has a stable residence" and "appears to have been doing very well and was becoming a contributing member of his community."

Topete "has earned an opportunity to continue successfully on parole and accepts … this case and reaffirms all the conditions of parole."

"Parole hold is removed …" Moore wrote.

Hidalgo, the corrections spokesman, said the most prison time the parole board could have given Topete is nine months and that he probably would have had to serve only half.

"We have to stay within the law and manage this type of population and keep as close an eye on them as possible," Hidalgo said. "We have incidents like this that bring out these kinds of questions, but we have to follow the law and base our decisions on the best judgment that we can."

Topete also had an arrest this past Jan. 9, when police in Davis acted on a tip that he was in possession of stolen property, Hidalgo said. Police found nothing and no charges were filed, according to Hidalgo.

Yolo County Sheriff's Deputy Jose Antonio Diaz died Sunday night after a high-powered rifle bullet pierced his protective vest.


Costs Exceed Benefits Of Three-Strikes Law
By Albert DiChiara, PhD


The Connecticut General Assembly should be congratulated for rejecting a proposal to create a three-strikes law in the state. With more than a decade to evaluate the effectiveness of the three-strikes laws, we know they are largely symbolic, tend to over-emphasize nonviolent offenders, the poor and minorities, and that the costs may exceed the public safety benefits. 

Albert DiChiara, Ph.D.
Violent and persistent offenders must be incarcerated for long periods of crime. The public demands this. 

However, the community must be careful when weighing the financial and social costs versus the benefits of such proposals. 

As a category of sentencing policy, three-strikes laws are of dubious merit. Evaluations — including one conducted by the National Institute of Justice — of the California and Florida three-strikes laws have found “no clear consensus on the “public safety impact” and “no impact,” respectively. 

Researchers have not been able to separate the amount of the decrease in crime associated with the existence of a three-strikes law from the more general decline in crime that has occurred throughout the United States during the past decade. Although there is some evidence that crime is deterred among some “second strikers,” the deterrent effect is not uniformly felt. 

Higher Costs 
An important consideration is that three-strikes laws are associated with increased costs related to increased prison populations, including health care costs and capital spending. It is estimated that the costs associated with incarcerating older individuals is between two and three times the cost of incarcerating a person below the age of 50. 

Take California, where it is estimated that its three-strikes law will cost $5.5 billion over a 20-year period. The cost of implementation is expected to rise at least until 2019 when the first wave of third-strikers is released. At that time, other costs, such as parole supervisions, will be incurred. 

The additional cost of parole supervision for California inmates is estimated at about $20 million per year. 

The recent Democratic proposal to strengthen the so-called “second-strike” elements of Connecticut’s current law makes more sense than a three-strikes law. A similar or greater public safety impact could be achieved by using the state’s existing persistent offender laws more effectively. Under these laws, violent and nonviolent persistent offenders are liable for significant prison terms that remove them from society for many years and, in some cases, for most of their lives. 

One aspect of the law is the increased time served by so-called “first strikers” before becoming eligible for parole, from 21 months to 25 months, at a cost of $60,000 per inmate. As “third-strikers” move toward the end of their sentences, additional workload costs are anticipated to accommodate these parole requests. The crime drop of the 1990s may have temporarily lowered the costs of these laws, and there is reason to believe the costs will rise dramatically. 

When lawmakers consider adopting a three-strikes law, they should evaluate whether other forms of sentencing frameworks and correctional and operational polices can achieve the same level of benefit with lower costs and less impact on vulnerable populations most likely to suffer in the operation of large impersonal bureaucracies. 

Those just released from prison face a significant challenge. Recidivism is high because opportunities to prosper do not exist in many neighborhoods in the state. Money spent housing aged criminals would be better spent on finding ways to help reintegrate ex-convicts into the community, to sustain their lives and health, and to find them a place in the community. 

The capital spending proposed to implement the now failed three-strikes proposal, which will be debated in the regular session of the legislature, should be used to create economic opportunity in poor communities. 

Albert DiChiara, PhD, is director of criminal justice at the University of Hartford.


Three Strikes Legislation on its Way Out in USA
Monday, 7 January 2008, 4:04 pm
Press Release: Rethinking Crime and Punishment 
Three Strikes Legislation on its Way Out in USA

The cost of maintaining ‘three strikes’ legislation is financially crippling those American states that have introduced it, said Kim Workman, Project Leader for the Rethinking Crime and Punishment Project. He was commenting on recent support by the Sensible Sentencing Trust for the introduction of such a law in New Zealand. "Eight states are currently trying to extricate themselves from the legislation, or modify it – California, Connecticut, Iowa, Kentucky, Louisiana, Nevada and New York. There are two main reasons – firstly, they can’t afford the cost of maintaining a high prison population. Secondly, they can’t find people willing to staff prisons that are inhumane and overcrowded.” 

They have had to resort to granting administrative release to prisoners well before their due release date, reduced prison terms for some classes of prisoners, increased parole eligibility, decreased mandatory minimum sentences, and deferring the building of new prisons. All states are keen to exit or modify the three strikes legislation. 

“The impact of such legislation if introduced to New Zealand, would double our prison population, from around 8000 to 16,000. Each prisoner costs the taxpayer around $76,000 a year. That is money that most New Zealanders would rather see spent on education, health, employment, climate change and social services. 

“The advantage of the New Zealand criminal justice system, is that it currently lags behind the rest of the world in its introduction of innovative measures to prevent crime and reduce re-offending. It can learn from both the achievements and the mistakes of other jurisdictions. Three strikes legislation, however drafted, has been a failure. 

The 5-7% of offenders who are psychopathic and seriously violent, can be adequately dealt with under existing legislation. The problem with ‘three strikes’ is that the judiciary are unable to exercise discretion on a case by case basis. As an ex-policeman I am aware of numerous cases in which charges of a serious nature are laid, but where the judiciary are able to look at alternatives which are likely to bring about a better result for the victim and the offender, without resorting to imprisonment. The hard truth is that the Department of Corrections can’t recruit sufficient staff now – it would be impossible to cope with double the numbers. 

“We would be better served looking at such alternatives as Drug Courts, Residential Work Centres, and community based treatment for those with drug dependency issues and mental illness.” 

“In August 2006, the Prime Minister declared that the current rates of imprisonment were “socially and economically unsustainable”. What has changed?”



Calif. Struggles With Sentencing Reform
By DON THOMPSON – 3 hours ago 

FOLSOM, Calif. (AP) — When California adopted its criminal sentencing code 30 years ago, a state appeals court marveled that it was virtually incomprehensible, comparing it to income tax forms and insurance policies.

The appellate judges wondered if the Legislature had used "some long departed Byzantine scholar to create its seemingly endless and convoluted complexities."

Since then, California has added more than 1,000 felony sentencing laws and more than 100 other changes that can lengthen prison terms.

As a result, the state's prisons are so dangerously jammed that there is a possibility federal courts could cap the population, potentially forcing the early release of some inmates.

The number of inmates in California prisons has soared, from nearly 25,000 in 1980 to more than 170,000 this year. The state has an incarceration rate of 475 per 100,000 residents, well above the national average of 445 per 100,000.

So far, political efforts to simplify the convoluted process have failed. However, the Legislature did approve a new law in April to build more prisons and jails, at a cost to the taxpayers of $7.8 billion.

"California's prison policy is to just build more prisons because they can't agree on anything else," said Don Specter, director of the nonprofit Prison Law Office, which wants to cap the prison population. "Without a sentencing commission, you're going to eventually fill as many prisons as you build because you're not affecting the number of people going in."

Proposals by Gov. Arnold Schwarzenegger and Democratic lawmakers to create such a commission to review sentencing collapsed this year amid partisan infighting. Some feared that a commission could open prison doors too wide.

"We are jammed up with this situation right now because we have fallen in love with one of the most undocumented beliefs: That somehow you get safer if you put more people in jail," Senate President Pro Tem Don Perata said this spring while reluctantly supporting the construction plan.

The problems with the current system date to 1977, when lawmakers adopted what are called determinate sentences, setting terms of incarceration by law rather than allowing a parole board to decide them on a case-by-case basis. Judges retain some leeway based on the nature of the crime and the criminal's history.

The system is so confusing that even the harshest penalties do little to deter many criminals, said Donald Jones, 42, who has spent much of his life behind bars.

He is serving 76 years to life at California State Prison, Sacramento, for having a stolen lawn mower and an illegal knife while he was on parole in 1996. It was his third offense under California's three-strikes law, after prior offenses including robberies and assaulting a police officer at age 14.

"One of the jurors said that if they'd known it was a third strike they wouldn't have voted to convict because they thought it was too much for receiving stolen property," Jones said in a prison interview.

"To tell you the truth, I heard of the third strike but I didn't know what it was. Somebody told me if you do a lot of violent stuff, they can put you away for a long time, but I never thought about it," he said.

Neither Schwarzenegger's plan nor a competing legislative proposal would touch three-strikes. However, a commission could make strides toward setting appropriate sentences that deter crime, protect public safety and consider the capacity of state prisons, said Assembly Speaker Pro Tem Sally Lieber.

"Our criminal code has become a rabbit's warren of conflicting laws," Lieber said.

A commission would take several years to make recommendations and would take even longer to affect the prison population. But Lieber said it would at least show California is serious about reform as federal judges — who already oversee inmate medical and mental health care, employee discipline, juvenile and parole programs — consider taking more control of the state's prisons.

Talks between Democratic lawmakers and the Republican governor on creating a commission broke down in a fundamental disagreement over how much power the panel should have.

"We don't just want an advisory, blue-ribbon commission," Senate Majority Leader Gloria Romero said.

Schwarzenegger, however, insists the commission be only advisory. Law enforcement officials and Republican lawmakers say anything more would usurp the Legislature's responsibility to pass laws.

The Democratic proposals would create an unaccountable group of appointees, Assemblyman Greg Aghazarian said.

"This unelected group is going to decide who stays in our prisons and who gets out," he said.

Fresno Co. Sheriff, 'Three Strikes' author support new initiative

Story Published: Nov 26, 2007 at 2:48 PM EST 

Story Updated: Nov 27, 2007 at 12:56 AM EST 

By Lindsey Pena

The anti-crime initiative called the "Safe Neighborhoods Act" was introduced in October by State Senator George Runner and his wife, Assemblywoman Sharon Runner.

The measure is drawing support from Fresno County Sheriff Margaret Mims and the author of the three-strikes law Mike Reynolds.

But the bill has it's critics, who say it significantly increases spending and could put a strain on California's already crowded prison system.

Both Reynolds and Mims are calling it the most important anti-crime initiative in California history.

The two spoke about the measure during Sunday’s “Radio Detective Program” with Jerry Pearce on KBIF.

“We need to start now in educating the public about something they're gonna have a chance to vote on here in the near future. It’s very important to public safety, its very important to Fresno county, and that's why I'm here today, “ said Sheriff Mims.

The initiative stiffens prison penalties, with terms doubled for gang related crimes and four-year sentences for possession or sale of methamphetamine.

It also provides anti-crime funding to the tune of almost $1 billion annually, with $250 million earmarked for local law enforcement programs and the rest to finance regional gang task forces, witness protection, GPS devices for gang members and other crime prevention programs.

Reynolds said, “This goes through those very carefully and especially with gangs and closes a lot of the loopholes they've found. This will do more to stop crime than anything we've seen since 3 strikes.”

The initiative also provides for alternative housing for inmates in local facilities.

In 2006 some Fresno county inmates had to be released from the jail because of overcrowding.

Sheriff Mims says with the jail currently at 87 percent capacity, it's just a matter of time before overcrowding becomes an issue once again.

“We need to make sure we lock people up, we keep them in facilities and this measure provides those facilities, as long as they meet the health codes and standards then it's good enough for inmates,” Mims said.

But there is opposition to the measure, with Senate President pro tem Don Perata and Assembly Speaker Fabian Nunez speaking out against the bill.

According to the Los Angeles Times, a spokesman for Nunez referred to the plan as "ballot box budgeting, which will put even more pressure on our already overcrowded prisons.”

But Reynolds has confidence that the initiative will become law.

“Certainly criminals are gonna hate this...but frankly I think the general public that's concerned about the safety of their children and themsleves and their neighborhoods are gonna vote overwhelmingly for this.”

Supporters of the initiative still need to gather 435,000 signatures by April 2008 to qualify the measure for the November 2008 ballot.



AGAINST: Inflexible System Would Tie Hands Of Justice, Worsen Prison Problem

September 30, 2007

 News stories about problems with Connecticut's parole and correction systems have prompted calls for action. One proposal is to change Connecticut's "three strikes and you're out" law. The idea is to send offenders who commit three serious crimes off to jail for a long time. California has the most rigid three-strikes law in the nation, and some in Connecticut want to imitate that law.

But California is rethinking its law, which allows misdemeanors to count as the third strike. The idea of sending someone to jail for 50 years because their third strike was stealing children's videos ("Snow White" and "Cinderella") or a slice of pizza - which are actual cases in California - is not the hallmark of a tough, smart system of justice.

There are other concerns about the California system. What about the first two strikes? The glib baseball analogy fails to convey the fact that any serious crime - whether it's Strike 1 or Strike 2 - puts communities at risk and creates new crime victims. In Connecticut, offenders are much more likely to spend more time - in some cases far more time - in jail for their first and second serious offenses than in California. It's neither tough nor smart to crack down only when an offender has victimized our citizens for a third time.

Going easy on criminals for their first two serious offenses is not good policy, but it's one way California has kept its prisons from overflowing. We know that a similar outcome is possible in Connecticut, because in a different context it's already happening.

Last year the state Department of Correction pressured prison wardens to release as many offenders as possible in order to reduce the prison population. After three directives were issued, the number of early-release furloughs soared by 50 percent, and included those who had committed violent crimes. Releasing violent offenders early as a way to control the prison population is wrong. A better approach would be to grant early-release furloughs only to those low-risk, nonviolent offenders who have earned it though good behavior.

Another problem in Connecticut is that parole board members do not receive offender files in advance of hearings. This lax approach undermines the basic duty of the board - to carefully consider whether to shorten an offender's prison sentence - and it compromises public safety. Much was made of the fact that an alarming sentencing transcript for one of the defendants in the Cheshire tragedy was not in his parole file.

Unfortunately, even if it had been in the file - which is required by law - board members most likely wouldn't have had time to read it. A simple solution is to send out the files at least a week in advance of a hearing, require that the files be complete and require board members to carefully review the records before granting parole. It's too bad something this obvious has not been occurring.

At present, the Board of Paroles and Pardons is contained within the Department of Correction. That may not seem like a problem, but in fact there is a conflict between the board's responsibility to carefully scrutinize offender records and the Department of Correction's desire to reduce the prison population. The board of parole should truly be independent.

Finally, Gov. M. Jodi Rell's recent suspension of parole for violent offenders touches the tip of a significant iceberg. We need to overhaul and professionalize the parole board. Ironically, defenders of the system have said that it's necessary to hire more full-time employees to make photocopies of sentencing transcripts, but not necessary to change the part-time parole board. That's backward. It's time to reform this outmoded system and bring more hands-on expertise to the process.

Some good may yet come from recent tragedies if we resolve to be both tough and smart regarding public safety in Connecticut.

Donald E. Williams Jr., D-Brooklyn, Conn., is Senate president pro tem.

'3 strikes' law is costly last resort 
A New Haven Register editorial 

Finally, the knee-jerk debate about the state locking up repeat criminals for life is getting a dose of fiscal reality. 

Passing a tough, "three strikes" law, such as California's, would increase the number of state inmates annually by 1,000 and require the construction of new prison cells at a cost of $110 million, according to the legislature's nonpartisan Office of Fiscal Analysis. 

The last time the state decided to lock more people up, it abolished parole in 1981.

During the next 10 years, it spent $1 billion building new prisons. The new prisons filled beyond capacity before the state restored parole and diverted inmates to alternative forms of sentencing.

California is still building prison cells. It plans to spend $7.4 billion to house an additional 40,000 to 50,000 prisoners to ease chronic overcrowding. The state is on track to spend more on its prisons than its public universities.

Connecticut does not have to follow the same fruitless and expensive path.

The parole board may not have released one of the suspects in a July 23 triple murder in Cheshire if it had a transcript of one of the suspect's 2002 sentencing for a series of nighttime burglaries when residents were at home. The judge described the suspect as a calculating predator and ordered that the suspect's mental health be evaluated as a condition of parole.

Another state fiscal analysis estimates the cost of providing the parole board the transcripts of sentencing hearings at only $45,000 annually.

State law already requires prosecutors to send sentencing transcripts to the parole board.

Building more prisons is an expensive last resort, an overreaction to a single, awful crime. Making sure current laws work effectively can do just as much to protect public safety. 


'3 Strikes' Measure Called Costly
Analysis Cites Expense Of Prison Expansion

Courant Staff Writer

September 11, 2007

 A "three strikes" law proposed for habitual offenders in the wake of the Cheshire triple slayings could increase the inmate population by 1,000 a year and require a new $110 million prison, nonpartisan legislative analysts say.

The legislature's Office of Fiscal Analysis describes the law, which would require mandatory life sentences for some three-time felons, as the most expensive proposal floated since the brutal home invasion in July.

New mandatory life sentences, tighter standards for parole and other proposals all come with a cost, said Rep. Michael P. Lawlor, D-East Haven, who requested the fiscal analyses of a half-dozen proposals.

"If the legislature does certain things, it will result in increases in the prison population," said Lawlor, co-chairman of the judiciary committee. "If that is what's going to happen, I feel very strongly you have to put the resources in place or the system will melt down."

Ending parole and transitional supervision would exceed current prison capacity and also require new prison space, the Office of Fiscal Analysis said. The state's 17,000-bed prison system now has 19,000 prisoners.

OFA also placed a price tag on the more modest proposition of tracking every parolee with global positioning technology. For every 30 parolees tracked by GPS, the annual cost is $212,000.

The analyses are nonpartisan, but a political tension underlies their preparation as Lawlor generally opposes mandatory sentences and new prison construction, while the most strenuous calls for tougher measures have come from legislative Republicans.

Republicans last week called for a "strong three strikes law that eliminates judicial discretion and requires life imprisonment for a third serious felony conviction, keeping career criminals in jail and out of our neighborhoods." Previously, they had called for an examination of parole standards.

Joshua Komisarjevsky, 26, and Steven Hayes, 44, were free on parole when they were arrested fleeing the home of Dr. William Petit Jr. of Cheshire. Authorities say they beat Petit and killed his wife, Jennifer Hawke-Petit, and their daughters, 17-year-old Hayley and 11-year-old Michaela.

House Minority Leader Lawrence F. Cafero Jr., R-Norwalk, said cost will be a part of any discussion about legislation enacted in response to the Cheshire case, but he complained that Lawlor seemed to be building a case against tougher sentences.

"What's the first thing you do, develop the public policy?" Cafero said. "Or get a report on the cost and say, `I dare you?'"

Cafero said the cost estimates assumed that Connecticut would adopt a three-strike law similar to the one in California, where any third felony can trigger a life sentence. He said Republicans are considering requiring that a serious felony be the trigger, which could send fewer offenders to prison.

Lawlor said the California law defines a life sentence as 25 years in prison, while Connecticut Republicans are talking about a three-strikes law with a penalty of life without possibility of parole.

Lawlor said he hopes the legislature will focus on providing court and prison officials with the tools to "find the needle in the haystack" - identifying dangerous offenders such as Komisarjevsky before they are eligible for parole.

"You need to find the Komisarjevskys of the world," Lawlor said. "Some are a complete mystery. Some have some indicators."

Lawlor said he believes that Komisarjevsky never would have been released had parole officials reviewed a transcript of his sentencing, which discussed the defendant's mental health and his dangerous predilection for breaking into occupied homes.

But parole officials never saw the transcript before releasing Komisarjevsky, despite the passage of a law in 1997 requiring prosecutors to provide transcripts before parole hearings.

Democrats and Republicans agree that no parole hearing should be conducted without the parole board having the transcript and other relevant information.

One of the fiscal analyses recently provided to Lawlor says that the transcripts could be provided in all cases for $45,000 a year.

Contact Mark Pazniokas at .

From the Los Angeles Times


How many strikes and you’re out?

Should a single act of criminality be counted as more than one felony under the three-strikes law, as is sometimes the case now? Where do you draw the line? All this week, Mike Reynolds and Barry Krisberg debate prisons and punishment in California.

August 9, 2007

Today, Reynolds and Krisberg discuss application of the three-strikes law. Previously, they debated the three-judge panel that will review the question of capping California's prison population, crime rates and incarceration, and prison overcrowding. Later this week they'll focus on mandatory sentencing laws and other issues. 

Sentencing commission now 
By Barry Krisberg

Like most of the baby boom generation, I am more interested in nostalgia these days, but I am not really eager to re-argue the merits of the three-strikes law. In my view, it was a bad idea in the mid 1990s and it is still a bad idea today. However, there is a bigger problem in California sentencing laws that cannot be fixed by simply tinkering with the current three-strikes law. The penal code is a hodgepodge of overlapping, duplicative and contradictory provisions. Change any significant part of it and other sections collapse like a house of cards. What is needed is a systematic overhaul of the entire sentencing system. This is why so many of us are calling for the creation of a California sentencing commission.

Since the passage of the Determinate Sentencing Law (DSL) in 1976, the way we sentence offenders has been in near constant flux. Before DSL, the Legislature set broad goals in sentencing and the judiciary and the parole board did the hands-on work of applying the broad legal guideposts to specific cases. Critics of the left and right attacked the older sentencing system. Liberals expressed concerns about disparity in sentencing based on race, social class, the whims of the parole board. Conservatives decried the alleged leniency of judges and parole boards.

When the left and the right join forces, watch out. California went to a system of very specific sentences, leaving little discretion to judges, that were enacted by the Legislature or passed via voter ballot measures. Allegedly, the discretion was taken out of the sentencing system. In reality, this just gave more power and discretion to district attorneys. The unintended consequence of the DSL was to make the entire sentencing process quite rigid and politicized. Our elected officials began posturing over who was really tougher on crime. After DSL passed, there were more than 1,000 bills passed to alter sentencing, usually toward the harsher direction. Sometimes these laws were based on reaction to one heinous case — thus these laws became known in Sacramento as "the crime of the week." There were several key voter initiatives that made further changes, including three strikes, harsh new juvenile sentencing laws (Proposition 21), diversion of drug offenders from jail (Proposition 36) and tougher parole rules for sex offenders (Jessica's law). While parts of these revisions may have been warranted, no effort was made to reconcile or revamp the overall penal code, or to repeal antiquated sections. So we have a monumental mess that cannot be fixed with another minor adjustment.

The way out of this morass is to follow the lead of states such as Virginia and North Carolina, creating a California sentencing commission that could translate broad legislative directions into sentencing rules that could be used by judges. Several states, including Washington, Oregon and Minnesota, and the federal system have commissions that are properly staffed and informed by solid research data. In Virginia and North Carolina, these reforms have reduced prison costs and allowed incarceration dollars to be spent on the truly dangerous, using less costly alternatives for the nondangerous offenders. In these states, the actual time served for violent offenders went up. Prison crowding was reduced in both states. Most important, sentencing commissions have depoliticized the whole process and achieved a remarkable degree of bipartisan consensus. States with sentencing commissions have achieved roughly the same declines in crime that occurred in California and other locales.

It is time for the Legislature and the governor to stop bickering about minor details and pass a sentencing commission for California. Then, the hard work can begin to overhaul the current penal code imbroglio and fix what needs repair in a more systematic fashion.

Dr. Barry Krisberg is the president of the National Council on Crime and Delinquency, a criminal justice research institute based in Oakland. This fall he will be teaching a class at UC Berkeley's Boalt Hall School of Law on prisoner reentry. 


Larger catches with a smaller net 
By Mike Reynolds

The L. A. Times asks a very carefully crafted question.

When the three-strikes law was originally drafted and as it appeared on the ballot in 1994, only one strike could be charged at any one crime scene; however the California Supreme Court toughened three strikes by extending the ability to charge more than one strike at any one crime.

Here is what a "single act of criminality" could actually mean. A person breaks into your house and rapes your two daughters, kidnaps your wife, takes her to the bank and forces her to withdraw $25,000, returns to your home and proceeds to set fire to the room where the daughters are tied up and watches them burn to death. He then strangles your wife to death while you are regaining consciousness from the severe beating you received when he first entered your home.

By the way, this just happened two weeks ago in Cheshire, Conn., to a doctor and his family. It would also be considered a "single act of criminality."

It requires two serious or violent felony convictions to be considered strikes in the three-strikes formula. If they occur at the same crime scene, they should be and are strikes.

The California Supreme Court also weakened three strikes in the Romero decision by allowing judges to have the same power as prosecutors in allowing them to strike prior convictions in the interests of justice.

The end result is that nine out of 10 repeat offenders who are eligible for a third strike end up getting it reduced to a second strike and avoiding the 25-to-life term.

That fact is further reinforced by the knowledge that fewer than 250 third-strike convictions a year are taking place. With a general prison population of 170,000, you can see that three strikes is not overpopulating the system.

Also noteworthy is the fact that California has only 5% of its total inmate population, including three-strikers, serving more than 20 year terms.

This is nearly the lowest in the nation.

Each time a crime law is changed, the net gets bigger or smaller. The Supreme Court decision to expand three strikes has been more than offset with the Romero decision, which made the net a great deal smaller.

Mike Reynolds is the father of Kimber Reynolds, who was murdered 1992 at the age of 18. He is also the father of "Three Strikes and You're Out" and "10-20-Life (Use A Gun and You're Done)," which are said to be among America's toughest crime laws.

Victory in People v. Trujillo -- a Three Strikes Case! 

On December 11, 2006, the California Supreme Court issued a terrific victory for SDAP's Executive Director Michael A. Kresser in People v. Trujillo:

The Trujillo case presented two issues to the Court: (1) May the prosecutor appeal if the trial court finds that a prior conviction is not a "strike"? (2) May a trial court rely upon a defendant's statement in a probation report to determine whether a prior conviction is a strike?

The case below:

In the trial court, the prosecutor tried to use the defendant's statement to a probation officer concerning the prior for inflicting corporal injury that he had stabbed his girlfriend during an argument, stating: "I stuck her with the knife." The charges involving the knife had been dismissed as a result of a plea bargain. Now the prosecutor asked that the prior be deemed a strike as a serious felony, pointing to the defendant's statement in the 1991 probation report. The trial court concluded that Trujillo had accepted the plea bargain "with the understanding the knife allegation would not be used. It went away. The defendant relied on that." Accordingly, the trial court found that the prior was not a strike. The People appealed.

The Sixth District Court of Appeal disagreed with the trial court and concluded that Trujillo's prior conviction for inflicting corporal injury was a strike, because he had admitted to the probation officer that he had used a knife. The defendant sought review.

The California Supreme Court decided:

(1) As to the People's right to appeal, a prosecutor may appeal the trial court's ruling that the prior conviction is not a strike on the grounds that the defendant's sentence is unlawful. The People may appeal from "[t]he imposition of an unlawful sentence," pursuant to Penal Code section 1238, subdivision (a)(10).


(2) The prior conviction is not a strike! The Court found that the Court of Appeal erred in reversing the trial court's ruling that the defendant's prior was not a strike. "Although we employ different reasoning than that utilized by the trial court, we conclude that the trial court correctly declined to consider the statement attributed to defendant in the probation officer’s report in determining whether defendant had suffered a prior conviction for a serious felony as defined in section 1192.7, subdivision (c)(23)." 

Indeed, addressing the Guerrero line of cases (44 Cal.3d 343) as to what a prosecutor can use to prove a serious or violent felony prior, this Court finds: 

"A statement by the defendant recounted in a postconviction probation officer’s report does not necessarily reflect the nature of the crime of which the defendant was convicted. In the present case, for example, the prosecution did not attempt to prove that defendant used a knife and, instead, entered into a plea bargain in which it dismissed the allegation that defendant used a deadly or dangerous weapon and committed an assault with a deadly weapon. The prosecution could not have compelled defendant to testify, and thus could not have used defendant’s subsequent admission that he stabbed the victim to convict him. Once the court accepted his plea, defendant could admit to the probation officer having stabbed the victim without fear of prosecution, because he was clothed with the protection of the double jeopardy clause from successive prosecution for the same offense. (Texas v. Cobb (2001) 532 U.S. 162, 173.) Defendant’s admission recounted in the probation officer’s report, therefore, does not describe the nature of the crime of which he was convicted and cannot be used to prove that the prior conviction was for a serious felony." 

Wow! Congratulations to Michael for his earth-shaking victory in this case!

A more complete analysis of the Trujillo decision by Bill Arzbaecher, CCAP staff attorney, will be posted soon on our website. 

Mailing address: CCAP - 2407 J St., Suite 301, Sacramento, CA 95816

Posted on Wed, Dec. 13, 2006 

Ruling to boost court scrutiny
By Fredric N. Tulsky
Mercury News

In a significant shift, the California Supreme Court adopted rules Tuesday encouraging the publication of a wider number of appellate opinions in legal journals -- a practice that could reduce errors of fact or law in such cases.

The court amended state court rules to abolish a longstanding presumption against publishing court cases.

The change, to take effect next April, ``creates a different mindset,'' said Beth Jay, chief of staff to the chief justice. ``It should tip the scales'' in favor of publishing cases of legal interest.

``I think this is a big step forward,'' said Michael A. Kresser, executive director of the Sixth District Appellate Project, a state-funded agency that coordinates the appeals of indigent criminal defendants.

The Mercury News' series ``Tainted Trials, Stolen Justice'' documented that locally, the unpublished opinions of the Sixth District Court of Appeal repeatedly misstated facts or legal principles and that those rulings -- no matter how faulty -- were routinely left unchallenged by the state Supreme Court.

Fewer than 5 percent of all criminal case appeals from the Sixth District, which covers Santa Clara, Santa Cruz, Monterey and San Benito, historically have been published. Unpublished opinions cannot be cited as legal precedents, and therefore are of little relevance to those not immediately involved in the case.

In its examination of more than 700 criminal jury trials over a five-year period, the newspaper found that the appellate court misstated facts or the law in 30 and, at times, the opinions ignored established law. At times, the court based its analysis on misunderstandings of the facts in ways that hurt defendants.

Legal experts have told the paper that unpublished opinions may tend to reflect less caution in writing.

Arlin Adams, a former judge of the Third Circuit U.S. Court of Appeals, said, ``Writing an opinion for publication often forces the writer to analyze more carefully alleged errors.''

In addition, published opinions are more likely to be reviewed by higher courts. Over the past decade, the newspaper found, the state Supreme Court reversed defense appeals in unpublished criminal cases only about twice a year out of the more than 3,000 requests it receives statewide for review.

Kresser said he thought the new rules would promote more consistency, both in decisions to publish cases and in the legal reasoning justices adopt. And he said greater publication would promote a more transparent court system. ``I believe the virtue of openness applies to the work of the appellate courts'' as much as any other institution, he said.

The high court's new rule requires publication if the opinion offers a new interpretation of the law, modifies or explains rules of law, or advances a new interpretation of a state law, among other factors. The Supreme Court also is requiring publication if a decision is not unanimous and the competing opinions significantly contribute to the development of the law.

When deciding whether to publish an opinion, the appellate courts are not to consider the workload of the court or the potential embarrassment publication might bring to a lawyer, judge or parties to the case.

Contact Fredric N. Tulsky at

Former sheriff's corporal pleads guilty 

By: JOHN HALL - Staff Writer 

FRENCH VALLEY -- A former Riverside County sheriff's corporal, highly decorated for his acts of bravery, pleaded guilty Tuesday to burglary and indecent exposure for his actions with two women while on duty.

John Wayne Leseberg, 43, of Sun City, agreed to plead guilty to two felonies and three misdemeanors in exchange to a two-year prison sentence. He faced about 16 years in prison had the case gone to trial and he had been found guilty as charged.

However, Leseberg most likely will not end up in prison. By law, he only has to serve half of his sentence -- or a year -- because the crimes to which he admitted committing are not violent felonies.

With 200 days already behind bars since his arrest, he only has 165 days remaining on that year, which he probably will serve in county jail.

Leseberg, who was assigned to the Lake Elsinore Sheriff's Station, is scheduled to return to Southwest Justice Center on Feb. 2 to be formally sentenced.

As part of the plea agreement, Leseberg will have two "strikes" hanging over his head under California's "Three Strikes Law," meaning should he ever be convicted of another felony after he is released, he would face a mandatory sentence of 25 years to life in prison.

Leseberg also must register as a sex offender for a minimum of seven years before he is able to petition to have that requirement lifted -- a decision ultimately made by the governor.

"It was extremely important and appropriate that the defendant acknowledge his responsibility for victimizing these women," Deputy District Attorney Sean Lafferty said outside the courtroom Tuesday.

The prosecutor said Leseberg also needed to be accountable "for his betrayal of trust, not only to these women, but his department and the community."

Lafferty said he has discussed the outcome of the case with the two women. Both would have liked to have seen him get more time, the prosecutor said, but they are relieved that they can now get on with their lives.

Leseberg pleaded guilty to two felony counts of burglary and three misdemeanor counts of indecent exposure.

Judge Michael Hider told him that he would not dismiss any of the other charges Leseberg faced until the sentencing. Those counts included sexual battery, penetration with a foreign object and dissuading a witness.

Lafferty said there were issues concerning the level of coercion Leseberg used to commit his crimes. That, the prosecutor adds, "make this disposition appropriate under the circumstances."

Leseberg was not treated any differently by prosecutors who agreed to accept the plea deal because he was a peace officer, Lafferty said.

Joseph Cavallo, Leseberg's attorney, said his client's decision to accept the plea was made to save his family and the Sheriff's Department from any further embarrassment.

Cavallo has contended that, while Leseberg's on-duty behavior was inappropriate, it was not criminal.

"This is no different than what President Clinton did (with Monica Lewinsky)," Cavallo said.

The defense attorney also has argued that since he took Leseberg's case, the Riverside County district attorney's office "overcharged" his client. That, he said Tuesday, "goes away with this resolution."

"John feels comfortable with the substance of this resolution," Cavallo said. "There's a light at the end of the tunnel for him now."

Being a law enforcement officer was Leseberg's life, the attorney said.

"Ninety percent of who he is has been stripped from him," Cavallo said. "He has to rehabilitate himself now that (he's) not going to be in law enforcement."

The first thing Leseberg wants to do once he is out of custody is sit down with his three children, making up for lost time with them and trying to explain why his life went the way it did, Cavallo said.

Leseberg was first arrested April 26 on charges involving the sexual assault of a woman while on duty Nov. 14, 2004.

After news of Leseberg's arrest was reported by the media, a second woman told investigators that he also sexually assaulted her in September 2005.

His arrest and the filing of criminal charges against him shocked many in local law enforcement at the time.

Leseberg received the sheriff's Lifesaving Award earlier this year for his part in saving the occupants of two cars that overturned down a freeway embankment. One car caught fire and Leseberg extinguished the blaze, then used his baton to smash out a window so he could pull two people to safety.

In 2005, he received two sheriff's Medal of Courage awards, which are given to recognize those who put themselves at great personal risk.

Leseberg resigned from the Sheriff's Department on May 24.

-- Contact staff writer John Hall at (951) 676-4315, Ext. 2628, or .

Feds Consider Three Strikes Law For Dangerous Offenders
Wednesday September 20, 2006

They called themselves the Law and Order government. And now the federal Conservatives are out to prove it by preparing a Canadian version of the U.S. 'three strikes' law. 

Although our justice systems are different, the intent of the new regulations would be similar - locking up violent criminals who have continually reoffended and pose an ongoing danger to society. 

As envisioned by Justice Minister Vic Toews, the Canadian version would apply only to those whose crimes are considered violent and would in effect reverse the current system. It would be up to the accused to convince a court why they're not dangerous and shouldn't be held for longer periods. 

Current philosophy favours the more common 'innocent until proven guilty' theory. 

"We feel that, once a person has been convicted three times, a presumption should apply that the individual is dangerous because a court has found that individual to be dangerous," Toews explains.

Canada currently operates under a 'dangerous offender' rule, where those deemed a habitual menace to society can be locked up virtually for life, with no parole application possible for seven years. 

But critics insist the three strikes law isn't ready for the major leagues. 

"If just tough penalties work, Texas would be the safest place in the world," counters Liberal MP Mark Holland. "It certainly isn't. "

N.D.P. leader Jack Layton maintains there's no evidence the idea has worked down south. 

"Where these sort of steps have been tried, for instance in California, the evidence of deterrence is not available," he argues. "It doesn't work as a deterrent."

And one criminal lawyer believes the impending law is a contradiction in terms. 

"Toews is the one who appoints these judges," points out Lawrence Greenspon. "On the one hand he appoints them. The next day he wants to put them in a court and take away their ability to apply a sentence that's appropriate for the individual and the offence that they've committed. I don't understand why."

Toews warns the law isn't fully formed and he'll need to work with his provincial counterparts to ensure he comes up with legislation that everyone can live with. But he insists the finished product will be different than its U.S. counterpart. 

That one leaves no room for a judge to decide on a sentence. Canada's will put some of the decision making in the jurist's hands. 

The legislation is likely to be included in a major Tory anti-crime package, expected to be delivered during the fall session.


The Three Strikes Law has been controversial in the U.S. since it first gained steam in California in 1994. But the rules have their critics and some argue there has been mixed success. 

Although Canada's version would differ from the one in the U.S., here's a look at some of the fallout from the past 20 years of the American 'three strikes' provision. 

What's considered a violent offence?

Murder or attempted murder, of course, along with felonies like rape, robbery with a weapon and sexual offences. 

More cases=more clogged courts.

Officials discovered they're actually pursuing more cases because of the law, but that led to additional backlogs in court. Because the U.S.  three strikes law mandates a minimum 25-year sentence, many who would normally have pled guilty to lesser charges or worked a plea bargain with prosecutors have demanded their day in court, figuring they have little to lose. 

And because of the extra work, some district attorneys in the U.S. have let less serious cases - like misdemeanors - slide.

More crowded jails

More and longer sentences have led to another inevitable outcome - a lot less space in already crowded jails and the need to either let lesser offenders go early or build more detention centres. Neither solution appeals to the public or governments, who have to spend the money to put up the facilities. 

Fewer are also getting out on bail, because of their potential dangerous offender status, further clogging up the cells. 

And because they're considered a public peril, they require additional resources, like extra guards and security measures.

Crime and punishment

The law has raised ethical issues, where a person convicted of two previous serious crimes commits a much lesser offence - say shoplifting - and is sentenced to untold years in prison despite the fact the act wasn't that harmful.

Effects on judges and juries

A study in California shows many judges and juries have been more reluctant to impose a guilty verdict if they know a person is facing serious time for a lesser offence. Some jurists even tried to reduce felonies to misdemeanors to avoid having to impose a de facto life sentence until legislation stopped the practice. 

Many victims have also refused to testify, not wanting to be responsible for imposing a life sentence on a person who only committed a minor crime. A 1995 survey found 70 percent of all second and third strike cases were for non-violent and non-serious offences. 

Crime Reduction

The law did, in fact, see a reduction in violent crimes, since most of those likely to repeat them were still behind bars. 

Source: California Legislative Analyst's Office

Inter Press Service News Agency

Jailed for Life, Migrant Says Justice Was Too Blind
Aaron Glantz

SAN FRANCISCO, California, Sep 14 (IPS) - A California immigrant serving a life sentence for lying to the Department of Motor Vehicles got a day in court Wednesday. Santos Reyes has already served six years for that crime, which he has never denied. 

"They were trying to get a driver's license for his cousin but his cousin can't read," said Peter Camejo, the Green Party candidate for California governor and a spokesman for the campaign to free Reyes. "The crime that Santos did was to take the written test for his cousin and he got caught doing it." 

"They got suspicious and they started asking him questions, so he just admitted it," Camejo told IPS. "He said he was just trying to get a driver's license for his cousin because they need it for work to feed his family. So they called the police and the police arrested him." 

When they took Reyes to jail, the police found he had been convicted of felonies twice before. In 1981, at age 17, he was convicted of stealing a radio. Five years later he was convicted of robbery. He then had no offenses for the next 11 years, a period in which he gained employment as a roofer, got married and fathered two children. 

But as an undocumented immigrant from Mexico, he couldn't drive legally and neither could his cousin. 

"He had a criminal record so to try to get [even] a fake driver's license under his name was very difficult," Camejo said. "There are many tricks that people use to get driver's licenses. You understand what happens if the police catch you driving illegally. They take your car and it's not returned to you. The state sells it and keeps the money. It's a form of robbery." 

California has the toughest "three strikes" law in the nation. And under the terms of the law, everyone convicted of a third felony -- no matter what kind -- serves a mandatory sentence of 25 years to life. According to the group Families to Amend California's Three Strikes (FACTS), 4,500 California prisoners are currently serving life sentences for crimes as minor as stealing a slice of pizza. 

Dororthy Erskine, 72, turned out for Reyes' hearing in Los Angeles Wednesday. Her nephew is currently serving a life sentence for aiding and abetting shoplifting. 

"He was a cocaine addict and this led to his criminal activity," she said. "In 1994, he was in a mall in Cerritos (outside Los Angeles) and these two women were on the same floor as him taking sheets and they stopped him when he left the store. Even though he didn't have any merchandise from the store he was arrested for aiding and abetting shoplifting and he has been in prison ever since." 

The severity of California's three strikes law makes it unlikely Santos Reyes will be freed by judicial order. While the Third District Court of Appeals in Los Angeles agreed to hear the case, Reyes's legal team believes their best hope lies in convincing California's Governor Arnold Schwarzenegger to commute his sentence to time served. 

At the same time, FACTS wants to change California's three strikes law so that only serious or violent felonies can send criminals to prison for life. Opponents of the three strikes law also argue for changes in immigration law so that undocumented immigrants like Santos Reyes don't have to lie to get a driver's license. 

But the backlash has been strong to such proposals. In 2003, former Hollywood actor Schwarzenegger ousted incumbent Democrat Gray Davis pledging to revoke driver's license privileges for undocumented immigrants. In 2004, the state of Arizona passed Proposition 200, which barred all state services for undocumented immigrants. This November, Arizona voters will consider a proposition forbidding judges to grant bail to the undocumented. 

Moreover, on Tuesday, anti-immigrant crusader Randy Graf won a hotly contested Congressional primary battle with the help of the Minutemen, vigilantes who have begun to patrol the U.S.-Mexico border. 

"We know that large numbers of people who are coming to this country lately are not just immigrants looking for a job," Graf told IPS after winning the Republican nomination for an Arizona House district that includes the city of Tuscon. 

"The crime rate and statistics along the border around here and in Texas with drug smuggling all bring us to the same conclusion that we need to secure the border and stop this invasion," he said. 

Despite the backlash, immigrants and their allies are optimistic about success in the future. The national Republican Party spent 122,000 dollars to support Graf's opponent, fearing a Graf win would push a growing population of Latino voters away from voting for Republicans. After California passed the anti-immigrant Proposition 187 in 1994, Latino voter registration soared -- their votes have helped put California firmly in the Democratic column. (END/2006) 

Tuesday, August 1, 2006

'Three strikes' law due for fine-tuning

The sentencing law should be amended to require that a third strike be a serious or violent felony
The Orange County Register

Proposition 66, which would have reformed California's "three strikes" law substantially, almost passed in November 2004 and would quite likely have passed if Gov. Schwarzenegger had not recorded a powerful series of TV ads against it. A substantial number of Californians seem ready to revise a law that represents a good idea but has serious flaws. 

Three strikes is short-hand campaign language referring to enhanced penalties for repeat violent offenders. Under the current law, those found guilty a second time of certain serious felonies receive double the prison time meted out for a first conviction. Those found guilty of any felony after having two strikes are sentenced to 25 years to life, with no early parole.

Among the problems with the law are making those who commit any felony, not just serious or violent felonies, eligible for that third strike and 25 years to life in prison. Currently 57 percent of the third-strikers whom the taxpayers are paying to keep in prison for life (at $35,000 per year, which rises as inmates get older and require more medical attention) are nonviolent offenders. There are more third-strikers serving life for drug possession than for second-degree murder, assault with a deadly weapon and rape combined, according to the Justice Policy Institute. 

SB1642, put together by Los Angeles District Attorney Steve Cooley and introduced by Senate Majority Leader Gloria Romero, would require that a third strike be a serious or violent felony. It differs from Prop. 66 (which Mr. Cooley opposed as being too far-reaching) in retaining burglary as a "strikable" offense and in making only third-strikers eligible to apply for resentencing.

One of the arguments against Prop. 66 was that it would have clogged the courts with thousands of second-and third-strikers appealing their sentences. SB1642 would make fewer prisoners eligible to appeal, and courts would have discretion as to whether to hear their cases or not.

Because the three-strikes law was created by initiative, it can only be amended by the people. So SB1642 would have the Legislature place the law's language on the November ballot. It has passed the Senate Appropriations Committee, and Sen. Romero's office told us it should be placed before the entire Senate and then the Assembly before the current session ends around the end of August.

The Legislature should pass SB1642, and the people would do well to approve it.

Justices refuse to revisit controversial California law
The Associated Press
Published 11:25 am PDT Monday, June 19, 2006

WASHINGTON (AP) - The Supreme Court refused Monday to hear appeals over whether California repeat offenders serving lengthy prison sentences can challenge the state's three-strikes law as cruel and unusual punishment.

California officials had asked justices to take two cases involving inmates serving 25 years-to-life sentences because the San Francisco-based 9th U.S. Circuit Court of Appeals has allowed the prisoners to challenge their lengthy imprisonments under the Eighth Amendment.

"This is a matter of great importance to the criminal justice system in California," Bill Lockyer, the state's attorney general, said in court filings.

Raymond Ramirez had two first-degree burglary convictions before he landed behind bars for possessing methamphetamine. Santos Reyes was locked up as a juvenile for burglary and was convicted of armed robbery before he faced a perjury charge for signing a driver's license application for his illiterate cousin.

In 2003, the high court ruled that California and other states could lock up certain repeat offenders for long periods for relatively minor crimes, and that the sentences do not necessarily lead to a violation of the Constitution's ban on cruel and unusual punishment.

But the appellate court sent both cases back to federal trial judges to examine the seriousness of the prisoners' prior convictions to determine whether their long sentence under the three-strikes law are out of proportion.

The cases are Dovey v. Ramirez, 05-736, and Brown v. Reyes, 05-755.

On the Net:

Posted on Wed, Jun. 14, 2006 

Girl's savior faces 3rd strike

By Sean Webby
Mercury News

There is a growing pile of books in Matthew Hahn's cell at Elmwood Correctional complex in Milpitas. Among Plato dialogues, the Tao Te Ching and ``Law for Dummies'' is a paperback titled ``Martyrs'' -- a collection of stories about Christians who sacrificed their lives for their faith.

It was a present from the mother of a young girl, in gratitude for helping bring the girl's molester to justice.

Last year, Hahn, a 26-year-old Los Gatos felon with a rap sheet full of residential burglaries, anonymously sent police some stolen photographs -- photos that showed a man molesting a toddler. Using the photographs, police found and arrested John Robertson ``Robbie'' Aitken. Last month, Aitken pleaded no contest to molestation charges and received a 30-year sentence.

But Hahn, who was later arrested for a burglary spree after he turned in the photos, is facing a prison term that could be longer than Aitken's. The latest series of burglaries was Hahn's ``third strike,'' and prosecutors have decided to seek a life sentence. His trial could begin this month.

The conundrum of weighing Hahn's crimes against his good deed has people across the country debating whether he deserves leniency. There have been blog polls, raving CNN hosts, e-mails from Sweden, editorials in Jackson, Miss., radio shows in Canada, and three petition drives calling for leniency.

``Matt is not a career criminal,'' said Allen Schwartz, Hahn's attorney. ``He has a terrible, terrible record. He is a thief and he is a drug addict. All of his previous crimes were from one crime spree. And after he went through the drug rehab, he got caught up again and he is doing it again. What will it take to get this guy's attention? I don't know. But I don't think we should throw this guy on the garbage pile of life.''

Assistant District Attorney Dave Tomkins is the senior member of the panel that decides how to charge potential three strikes cases.

He said when the panel made the decision on Hahn's burglary case, it knew about his pivotal role in Aitken's arrest. That, Tomkins said, was one of the reasons he didn't charge Hahn with the specific burglary of the safe that contained the damning photographs.

But they also saw a record of crimes that, while not violent, had the potential to be if anyone caught him in the act.

``We see someone with a bunch of residential burglaries and his current case is a bunch of residential burglaries,'' Tomkins said. ``This guy is a career burglar. In my experience, if you take residential burglars off the street, you are cutting the crime rate dramatically.

``But this isn't science. We try to consider everything.''

Hahn's supporters say the district attorney's office should be more lenient.

Both the mother of the victim and Aitken's prosecutor Dana Overstreet -- a deputy district attorney in Santa Clara County -- have said they would be willing to testify on Hanh's behalf.

Hahn is also receiving help from people he's never met.

Ginger Davis, a 45-year-old Los Gatos woman who said she was molested as a child, started a petition drive, gathered 100 signatures and sent it to Hahn's lawyer.

``He has so many priors,'' Davis said. ``But I'm not sure how they would put someone behind bars for life when you think of that little girl. I think he saved her life.''

Hahn himself is conflicted about what punishment he should receive.

``I sit in my cell and think about the fact that I've hurt people with my crimes,'' Hahn said. ``And I've thought about forgiveness. But finally, I am trying to let go of it, that question. It's in God's hands.''

Now the former star student at De Anza College reads philosophy and teaches math to inmates at Elmwood. He said he got high fives and handshakes when they found out what he did. But his record only shows a drug-abusing repeat felon.

In fall 1998, Hahn went on a four-month methamphetamine-fueled spree of burglarizing garages, cars and houses in Saratoga, according to court records.

When he was caught, he pointed out the places he had burglarized. In one instance, he took guns, ammunition and a safe with $20,000 worth of jewelry and cash from his former Little League coach, Keith Barna, who was away on vacation.

After Hahn was arrested, Barna found his rifles stashed in the closet of Hahn's mortified mother, a Stanford-educated tech engineer.

``He's done a lot of reckless things and it's time for him to be spanked pretty badly,'' Barna said. ``But life? I've got a lot of issues with the overcrowding in our jail system for non-violent offenders.''

Los Gatos Police Sgt. Mike Barbieri, who was involved in Hahn's and Aitken's arrests, sees both sides.

``You gotta give the guy some credit. He got someone off the street who is pretty bad,'' he said. ``But he's also a pretty prolific thief. It's an interesting question: Does he deserve a break? But I don't think so.''

The district attorney's office has indicated that Hahn's help in convicting Aitken may be a mitigating factor in his case and has asked his lawyer to submit it for consideration.

In San Mateo County, Chief Deputy District Attorney Steve Wagstaffe said he asks lawyers for ``mitigation packages'' -- documented information of good deeds by suspects facing three strikes. He recalled declining to charge three strikes for a suspect who discovered a fire in a jail cell.

Hahn's case comes when there are renewed efforts in the state to reform the three strikes sentencing law that began 12 years ago. For example, two ballot initiatives from the Los Angeles County District Attorney's Office aim to give judges more flexibility when giving three strikes sentences in non-violent, less serious crimes.

Said Franklin E. Zimring, a professor of law at the University of California-Berkeley: ``He's not violent, yet not inactive either. The question is how to balance these two. My tendency is to give him a break. If I ran for district attorney and all the people who worry about child sex abuse voted for me and all the people who worry about burglary didn't, I think I would get re-elected.''

Contact Sean Webby at

How the Three-Strikes Law May Change
The Associated Press
Published: March 23, 2006 14:56 

Efforts are underway to place competing propositions on the November ballot to change California’s “three-strikes” sentencing guidelines. Here’s a look at what each would do: 

The Three Strikes Reform Act of 2006, co-sponsored by Los Angeles County District Attorney Steve Cooley, would: 

_ Limit 25-to-life terms to offenders whose third-strike convictions were for “serious or violent” crimes, not just any felony. 

_ Make inmates now serving life terms eligible for lesser sentences or release as long as their third offense wasn’t serious or violent. The change would not apply if first or second strikes included murder, rape or child molestation and the third conviction involved some sex crimes, gun offenses and other crimes. 

The Repeat Criminal Offender/Three Strikes Fair Sentencing Act of 2006, co-sponsored by Los Angeles County Deputy District Attorney Steven Ipsen, would: 

_ Give life sentences to sex offenders and murderers after two convictions, not the three required under current law. 

_ Expand the strike list to include more crimes such as other sex offenses, fleeing police, certain white-collar felonies and hate crimes. 

_ Allow sentences of 15 years and 10 years to life _ not just the current 25 to life mandate _ to felons if their third conviction wasn’t serious or violent. 

_ Commute 25-to-life sentences to 10-to-life for some drug offenders and petty thieves. It would exclude anyone whose prior convictions were for murder or certain sex offenses. 

Source: Ballot language submitted to California Attorney General’s Office and interviews with backers of proposals.

Mar 23, 2006 7:49 pm US/Pacific

Cooley Urging Change For Three Strikes Law

(AP) LOS ANGELES The lead voice urging voters to reconsider California's tough "three strikes" sentencing law belongs to an unlikely advocate for change: one of the state's top lawmen. 

Los Angeles County District Attorney Steve Cooley is pushing for a ballot measure he believes would make prison terms more just by reforming guidelines voters passed amid an early 1990s crime wave. 

Cooley says his motivation is twofold. He wants the punishment to fit the crime and believes current guidelines -- the toughest in the nation -- can be too harsh. He also worries that Californians eventually will overhaul sentencing law, and he wants reform done right. 

"We're fixing three strikes in order to save it," says the Republican prosecutor who leads the country's largest district attorney's office. 

One result could be that hundreds, perhaps thousands, of inmates would be sentenced to shorter terms or set free. 

At its core, the three-strikes debate pits Californians' sense of safety against their sense of fairness. This wouldn't be the first swing at the 1994 law under which certain felony convictions equal strikes. Voters narrowly rejected a proposition two years ago that Cooley opposed as too lenient. 

Fellow prosecutors already are assailing Cooley. Among them is a subordinate who is one of the main advocates for a rival ballot proposal. In addition, victims advocates are evoking the kind of arguments that doomed the 2004 attempt at reform. 

"There are going to be some terrible individuals back in the street," said Mark Klaas, whose 12-year-old daughter Polly was murdered and became a poster child for the original law. 

Supporters of each measure will begin this spring collecting the nearly 400,000 signatures they need to put each measure before voters on the November ballot. 

Cooley's measure would limit 25-to-life terms to offenders whose third felony was for "serious or violent" crimes. And it would make inmates serving life eligible for re-sentencing as long as their third offense wasn't serious or violent. 

A felon sentenced to life in 1997 for the third strike of trying to break into a church pantry might get a shorter term or be released. 

By ensuring nothing changes for murderers, rapists and child molesters, Cooley's proposal might ease some fears among voters, his supporters say. 

"The law we have doesn't undo (three strikes), it just fine-tunes," said Brian Dunn, a prominent civil rights lawyer who co-wrote the measure. 

The competing measure is being pushed by Steven Ipsen, a deputy district attorney under Cooley. Ipsen's measure would toughen the law in many cases, moderate it in others. 

Sex offenders and murderers could face life in prison for two strikes, not three, and the measure would expand the strike list to include other felonies. 

"Either you have tough laws and low crime, or you have weak laws and high crime," says Ipsen. "You have to take your pick." 

Some third-strike felons could get sentences lighter than 25 to life if their most recent offense wasn't serious or violent. And in some cases, Ipsen's proposal would allow the reduction of 25-to-life sentence that have already been handed out. 

There's little dispute that Cooley's measure would free some of California's nearly 7,800 third-strike inmates. Just how many isn't clear. 

An analysis of Los Angeles County -- where Cooley's local three-strikes prosecution strategy mirrors his state measure in many respects -- shows a decline in third-strikers sentenced to life. 

From 2001 to 2005, the number dropped 63 percent, from 521 to 192, according to Los Angeles County prosecutors. Supporters say the decline indicates that the toughest criminals are steadily being put behind bars. 

Cooley's opponents point out that decline tracked a statewide pattern and isn't unique to Los Angeles County. 

Over the same period, third-strike convicts entering state prisons fell from 493 to 239, or nearly 51 percent, according to the California District Attorney's Association, which opposes both measures. 

The state and county numbers differ because they are kept separately and measure different felon populations. 

Cooley believes his support for reform was part of what first got him elected six years ago and says private polls give him confidence that voters will approve his proposal. 

"Punishment fitting the crime is a core value," Cooley says. "It's the right thing to do."

Article Launched: 3/07/2006 12:00 AM 

Judge reduces bank robber's sentence because of his rehabilitation efforts 

By TERRY VAU DELL - Staff Writer
Chico Enterprise-Record 

OROVILLE -- A Chico bank robber who attempted a get-away in a stolen sheriff's patrol car amid a hail of bullets in 1999 had his 17-year prison term sharply reduced Monday. 
Ross Evan Toscano, a one-time professional golf caddy, had served about six years of his term and now could be paroled in less than a year, according to prosecutors. 

The 3rd District Court of Appeal in Sacramento overturned Toscano's original 17-year sentence, forcing a second trial before a Butte County jury last year solely on the validity and scope of a 1982 Arizona federal bank robbery conviction on Toscano's record. 

At his resentencing hearing Monday, Butte County Superior Court Judge Gerald Hermansen said he was "impressed'' with efforts Toscano, 50, has made to rehabilitate himself within a "a milieu of (prison) violence." 

Over the objections of the prosecutor Monday, the sentencing judge exercised his discretion under California's "three-strikes law" by dismissing a strike relating to the earlier holdup. 

That reduced Toscano's prison term to 11 years, but "custody credits" earned by the Chico inmate leave him with less than a year to do on his sentence, deputy district attorney Brent Redelsperger calculated. 

"I'm disappointed," said the local prosecutor following Monday's unusual court proceeding. 

His hair a little grayer than it was at his original sentencing in April 2000, Toscano publicly apologized in court for the "fright" he caused three female Butte Community Bank tellers whom he robbed of about $14,000 with a realistic-looking toy gun during the East Avenue bank's grand opening in June 1999. 

A live radio broadcast was under way when the suspect, wearing a blazer, ascot and mariner's hat, was chased by several bank employees and at least one citizen following the robbery.

After stripping off his disguise, Toscano used a ruse to steal a sheriff's patrol car responding to the robbery, and under a hail of bullets, led scores of officers on a lengthy pursuit which ended when the suspect was rear-ended by law enforcement officers on Highway 99 north of Chico. 

At Toscano's resentencing Monday, Redelsperger argued the bank robbery and subsequent high-speed pursuit in the stolen patrol car put lives in danger. 

Sentencing the convicted bandit to anything less than the original 17-year term would not serve as "a proper deterrent," the local prosecutor said. 

But the judge said he agreed with San Francisco defense attorney Edward Swanson that counseling Toscano sought in prison, coupled with letters of apology he wrote his victims, showed "real strides to rehabilitate'' himself. 

Toscano's efforts were all the more remarkable given a current state prison system that is seriously overpopulated and teeming with violence, the judge noted. 

"If all prisoners could go through what you have, we wouldn't have the violence and murders that we have in the prisons," Hermansen told Toscano, characterizing him as "a model prisoner." 

The local judge added that he "fully supported'' the 1996 three-strikes law, and felt that it "only survives because judges are willing to exercise their discretion" when to apply it. 

"I want to thank the judge for taking a close look at the efforts that my client has made in prison to understand why he committed this crime so that he doesn't do it again," said Toscano's attorney following Monday's hearing. 

Attending the resentencing were several of Toscano's closest friends. 

"Ross is really a very decent man, who just made a very bad decision," said Diane Glover. 

BACKGROUND: In 2000, Ross Evan Toscano of Chico was sentenced to prison for robbing a local bank. 

WHAT'S NEW: On Monday, Toscano had his sentence reduced after a judge praised his efforts to rehabilitate himself while in prison.

'Three strikes' must be reformed statewide
By Steve Cooley -- Special To The Bee
Published 2:15 am PST Sunday, February 26, 2006

In 1994, California voters overwhelmingly approved Proposition 184, the "three-strikes" law, which mandated a sentence of 25 years to life imprisonment for anyone convicted of any felony if that person had been previously convicted of two or more serious or violent felonies. The three-strikes law also doubled the penalty for anyone convicted of a felony who had been previously convicted of one serious or violent felony (a so-called second-strike case). Thousands of recidivists have been imprisoned under the second-and third-strike statutory schemes. Some observers credit the declining crime rates in most counties to this recidivist sentencing law.

At first, many prosecutors and judges felt that three-strikes sentences were mandatory in all qualifying cases, no matter what the nature of the triggering felony. In California, many crimes are punishable as felonies but are not labeled as serious or violent by the Penal Code. For example, a second shoplifting offense, stealing more than $100 worth of avocados, writing an NSF check for more than $200 and possessing a small amount of illegal drugs for personal use are all felonies that could trigger the 25 years to life sentencing consequence of the three-strikes law.

In 1996, the California Supreme Court ruled that judges retained discretion under the three-strikes law to disregard a prior strike in the interest of justice and impose a sentence more commensurate with the circumstances of the present offense. As a result of this decision, policies and practices changed in some counties and courts, but not in all. Thus, California has a system that can vary widely and result in inequality of treatment depending on the county in which the offense is committed and on which court within a county sentences the offender. Such inequality causes the public to question whether the criminal justice system is actually dispensing evenhanded justice.

In 1999, as a candidate for Los Angeles County district attorney, I issued a campaign position paper in which I pledged to issue a new three-strikes policy for the Los Angeles County District Attorney's Office. Immediately after being sworn in as district attorney, I made good on that pledge.

The present policy of the Los Angeles County District Attorney's Office requires that if a potential third strike is not a serious or violent felony, it will not be treated as a third-strike case except in very unusual circumstances. It is generally sentenced as a second-strike case. This policy avoids injustice and abuse in the form of disproportionately harsh sentences of 25 years to life for relatively minor crimes. Since December 2000, prosecutors have implemented this policy and virtually eliminated 25-years-to-life sentences for petty thieves and petty drug offenders. This new three-strikes policy has worked well and has been well received by law enforcement, the courts and the community at large.

In 2004, voters were asked to approve Proposition 66, a ballot measure that virtually all law enforcement officials believed would have seriously undercut the three-strikes law. It would have resulted in the wholesale release of thousands upon thousands of dangerous criminals. Pre-election opinion polls indicated broad public support for Proposition 66. Only a last-minute aggressive public awareness campaign led by Gov. Schwarzenegger and other former California governors defeated the proposition by a close vote of 53 percent to 47 percent. Schwarzenegger has said that he would be interested in fixing problems with the current three-strikes law. Those who supported Proposition 66 have vowed to continue their efforts to modify or repeal the three-strikes law. There is little doubt that the public wants reasonable and just reform of the three-strikes law.

Experience has revealed some inequities in the original law. The best way to ensure that the three-strikes law retains public support and confidence is to make modifications that will dispense justice while preserving the valuable public safety features of the law.

The Three Strikes Reform Act of 2006 is the joint product of prosecutors, private attorneys and other interested parties working together to ensure a realistic approach to prevent unjust sentencing without compromising the ability to remove serious and dangerous recidivist criminals from our communities. It has already received support from law enforcement, including Los Angeles County Sheriff Lee Baca, Los Angeles Police Chief William Bratton and the Los Angeles County Chiefs of Police Association. It has also been favorably reviewed by a number of newspapers, including The Sacramento Bee, the Los Angeles Times, the San Francisco Chronicle, the San Diego Union Tribune, the San Gabriel Valley Tribune and the Orange County Register. California State Senator Gloria Romero has agreed to introduce legislation to place the initiative on the ballot.

The proposed act keeps the present two and three strikes penalties; keeps the definitions of "serious" and "violent" felonies that count as prior strikes; and provides that current strikes must be either serious or violent felonies or from specific crime categories, such as certain sex offenses, large quantity drug offenses, crimes where the defendant uses a firearm, was armed or intended to cause great bodily injury to another person. Current third-strike prisoners whose triggering felony would not qualify for a 25-years-to-life sentence under the act would be eligible to apply for resentencing at the court's discretion as a second strike offender.

The criminal justice system needs to retain the very beneficial provisions of the three-strikes law. However, the state should not allow the misallocation of limited penal resources by having life prison sentences for those who do not pose a serious criminal threat to society. The punishment should fit the crime. California can assure public safety and achieve the interests of justice in all counties and courts with The Three Strikes Reform Act of 2006.

About the writer:
Steve Cooley has been district attorney of Los Angeles County since December 2000. Information about the Three Strikes Reform Act of 2006 can be found at

These jampacked joints don't make you safe

By Joe Domanick
Joe Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," is senior fellow in criminal justice at USC Annenberg's Institute for Justice and Journalism

October 16, 2005

IN THE LAST 25 years, the United States has responded to citizens' legitimate fears of murder, muggings and addiction with mindless wars on crime and drugs. Pandering politicians, a sensationalist media and a public content only with tough-guy approaches have compounded the problem. As a result, our prisons are bulging with young, poor blacks and Latinos, nonviolent addicts, alcoholics, petty thieves and the mentally ill. Some are serving life sentences for buying a macadamia nut disguised as a $5 rock of cocaine from an undercover cop. 

"We've been engaged in a prison buildup that's a uniquely 20th and 21st century American phenomenon, one without parallel elsewhere in the world," says professor Todd Clear, head of doctoral studies at the John Jay College of Criminal Justice at the City University of New York.

The number of prisons in the nation has grown quickly, and California is representative. In 1980, there were 12 prisons in the state. Today, there are 33.

Between 1982 and 2001, arrests in the United States increased by 13%, yet the number of inmates in federal and state prisons surged 228%. The total number of Americans in prison, jail, on probation or on parole soared from 400,000 in 1970 to 1.8 million in 1980 and to 6.7 million in 2002. About 13 million Americans have served time for a felony conviction. Although the U.S. contains 4% of the world's population, it houses one-quarter of all the imprisoned people on Earth. 

Incarceration costs have correspondingly exploded. Twenty years ago, the nation annually spent $36 billion on police, courts and incarceration. Today, it's $167 billion. 

It was during the late 1960s and the 1970s that government — state and federal — concluded that the only way to deal with rising crime and addiction was more cops and prisons and far tougher punishment. In the 1980s and '90s, thousands of laws were passed to put this approach into practice. Drug offenses carried penalties as severe as those for violent crimes.

Several factors accounted for the turn to punishment. Then-available social science data showed that many prison rehab programs weren't working. As a result, prison officials abandoned most of them. Underpinning and reinforcing this development was the belief that people behaved criminally because they lacked moral scruples. A big stick and longer prison terms were therefore the best guarantors of social control — and petty criminals, crack-heads and junkies should be treated no differently than rapists, robbers and murderers. California lawmakers were so taken with this view of human nature that, in 1977, they changed the state's penal code to read that the purpose of imprisonment was not rehabilitation but punishment. 

Paralleling the philosophical shift was the emergence of the criminal justice industry as a political player. Its 2.3 million members include highway patrol officers, sheriffs and deputies, district attorneys and prison and jail guards (747,000). Add law enforcement's natural allies — prison construction firms, police equipment manufacturers, the National Rifle Assn. and victims' rights groups — and you have a lobbying force capable of advancing legislation that maximizes sentencing and incarceration.

With more criminals serving longer sentences, the crime rate has dramatically dropped. Experts say increased incarceration explains 15% to 25% of the decline. But it's only part of the story. Texas' prison population rose by 168% from 1992 to 2001, but the state's violent crime rate fell by just 14%. Conversely, New York's prison population jumped 9%, but its violent crime rate fell by 52%, which suggests other factors have played a larger role in crime reduction, such as a stronger national economy, the end of the crack cocaine wars, more street cops, computerized crime-tracking strategies and a smaller population in the prime crime-prone ages of 18 to 34.

Nevertheless, violent crime remains rampant in many of the United States' poorest neighborhoods, where young men and women are sucked into an intergenerational cycle of crime, imprisonment, release and reimprisonment. About 40% of U.S. prisoners are black. If incarceration trends continue, 1 in 3 black males born today will do time in state prison. About 7 million children have a parent somewhere in the corrections system, and they are five times more likely to be incarcerated than kids whose parents have not been imprisoned.

The economic costs of a criminal justice system that emphasizes punishment and incarceration at the expense of rehabilitation and the potential for recovery are unsustainable. Nowhere is this more evident than in California, whose corrections system spends $7.3 billion annually and "has little accountability, no uniformity [or] transparency … too much political interference, too much union control and too little management courage," according to a report commissioned by Gov. Arnold Schwarzenegger.

In California and in other states, governors are turning away from their exclusive reliance on incarceration and reintroducing rehabilitation as a less costly way to deal with some criminals. A return to a criminal justice policy that balances punishment and rehab could save billions of dollars and reclaim hundreds of thousands of lives.

Two things must happen to reform the U.S. corrections system. Law enforcement leaders need to abandon their fiefdoms and work with reform-minded corrections officials such as Rod Hickman, head of California's Department of Corrections and Rehabilitation, to develop rehab programs to help prisoners reenter society successfully. And the public needs to understand that criminal behavior is not simply caused by a failure of moral willpower, but results from a constellation of factors, including dysfunctional schools, poor healthcare, single-parent households and the lack of economic opportunity.

Another strike at 'three strikes' law 

Monday, January 9, 2006 

NO CIVILIZED SOCIETY should be imposing life sentences on offenders who have committed relatively minor crimes such as shoplifting or car theft. 

Yet that is precisely what the voters of California have done through the state's "three strikes" law, which was advertised as a way to lock up irredeemable psychopaths such as Richard Allen Davis, the killer of 12-year-old Polly Klaas in 1993. 

Unlike other states with three-strikes laws, however, in California only the first two strikes must be a serious or violent felony. As of last June, 7,716 inmates were serving 25-years-to-life three-strike sentences. Nearly 60 percent of them had committed nonviolent third-strike felonies. 

Yet in November 2004, voters defeated Proposition 66, an initiative that would have reformed California's harsh three-strikes law by requiring the third strike to be a serious and violent felony. 

Fortunately, there have since been numerous behind-the-scenes discussions to come up with "three strike" reforms more likely to be get voter approval. San Francisco District Attorney Kamala Harris helped lead post-Prop. 66 discussions, which have included Alameda County District Attorney Tom Orloff and Los Angeles District Attorney Steve Cooley, a Republican. Assemblyman Mark Leno, D-San Francisco, convened a series of meetings to fashion a bill that the Legislature could approve and then put on the ballot for passage by voters. But a legislative consensus proved elusive. 

Last week, in a potentially significant development, Cooley, together with Brian Dunn, an attorney with the late Johnnie Cochran's law firm, submitted a new three-strikes reform initiative to the California attorney general's office for a fiscal analysis and title and summary, as required by state law. Once it is cleared by the attorney general's office, the next step will be to collect signatures to qualify the initiative for the November's ballot. 

The initiative, which is based on the language of the legislation Leno was fashioning in the Legislature, addresses the concerns that arose with Prop. 66. For example, the new plan only applies to inmates serving a three-strike sentence of 25 years to life, not to those serving enhanced "two strike" sentences. Unlike Prop. 66, it does not eliminate some crimes such as burglary of an unoccupied residence from the list of serious and violent crimes. 

Cooley and others from his office worked intensively with Dunn over the New Year's weekend to write the initiative. Because of time pressures, they say, they were unable to consult some of the key constituencies attempting to reform the law. 

A key group for Cooley to persuade is the California District Attorneys Association, which led the opposition to Proposition 66. The association will meet on Jan. 23 in Palm Springs for its winter meeting, and we urge its members to take a more constructive approach to reforming the law than they did in 2004. 

As Leno noted, California already incarcerates a higher percentage of its population than any other state. Yet in his State of the State speech last week, Schwarzenegger called for the construction of more jails and expanding California's prison population by another 83,000 inmates. We think the state should be reserving prison space for those who belong there. 

This state cannot afford the burden of prolonged incarcerations of nonviolent inmates, especially when the governor is contemplating an ambitious $200 billion public-works program to sustain our economy and improve our quality of life. 

California's three-strikes law should be reformed to meet the needs of public safety and fiscal prudence. It's time to restore sanity to a system that now imposes punishments that are wildly out of proportion to certain crimes.

Two initiatives aim to alter California's "Three Strikes" law
The Associated Press
Published 2:30 am PST Saturday, January 7, 2006

LOS ANGELES (AP) - Two proposed ballot measures would alter the state's "Three Strikes" law - but one would ease its requirements while another would toughen some of them.
Both would appear on the November election ballot if enough signatures are gathered to qualify them.

Under the 1994 law, someone convicted of a third felony faces a mandatory sentence of 25 years to life.

The proposed "Three Strikes Reform Act of 2006" would require the third felony to be a serious or violent crime before the sentence could be imposed.

Inmates who already received the "third strike" sentence for a non-serious felony would be eligible for re-sentencing.

"You've got a lot of folks doing 25 years to life for nonserious and nonviolent offenses," said Brian T. Dunn, an attorney who submitted the initiative to the state attorney general's office.

Los Angeles County District Attorney Steve Cooley also submitted the proposal.

A second proposed initiative, the "Repeat Felon Justice Act of 2006," was filed by Steve Ipsen, president of the Association of Deputy District Attorneys.

That measure would change the law by requiring only two felony "strikes" before rapists, child molesters and murderers are given life sentences.

For other criminals, judges would have the choice of imposing third-strike sentences of 15 years to life, nine years to life or a fixed nine-year term.

"It allows the judge to give the appropriate punishment to the criminal based on the current offense and his past offenses," Ipsen said.

The measure "makes sure the punishment is fair," he said.


Information from: (Los Angeles) Daily News,

October 2005 - Reader's Digest (US)

Petty Crime, Outrageous Punishment
Why the Three-Strikes Law Doesn't Work
By Carl M. Cannon 

There was nothing honorable about it, nothing particularly heinous, either, when Leandro Andrade, a 37-year-old Army veteran with three kids and a drug habit, walked into a Kmart store in Ontario, California stuffed five videos into his waistband and tried to leave without paying. Security guards stopped him, but two weeks later, Andrade went to another Kmart and tried to steal four more videos. The police were called, and he was tried and convicted.

That was ten years ago, and Leandro Andrade is still behind bars. He figures to be there a lot longer: He came out of the courtroom with a sentence of 50 years to life.

If you find that stunningly harsh, you're in good company. The Andrade case went all the way to the U.S. Supreme Court, where Justice David Souter wrote that the punishment was "grossly disproportionate" to the crime.

So why is Andrade still serving a virtual life sentence? For the same reason that, across the country, thousands of others are behind bars serving extraordinarily long terms for a variety of low-level, nonviolent crimes. It's the result of well-intentioned anti-crime laws that have gone terribly wrong.

Convinced that too many judges were going easy on violent recidivists, Congress enacted federal "mandatory minimum" sentences two decades ago, mainly targeting drug crimes. Throughout the 1990s, state legislatures and Congress kept upping the ante, passing new mandatory minimums, including "three strikes and you're out" laws. The upshot was a mosaic of sentencing statues that all but eliminated judicial discretion, mercy, or even common sense.

Now we are living with the fallout. California came down hard on Andrade because he'd committed a petty theft in 1990 that allowed prosecutors to classify the video thefts as felonies, triggering the three-strikes laws.

The videos that Andrade stole were kids' movies, such as Casper and Snow White -- Christmas presents, he said, for nieces and nephews. A pre-sentence report theorized he was swiping the videos to feed a heroin habit. Their retail value: $84.70 for the first batch and $68.84 for the second.

When Andrade's case went before the Supreme Court, a bare majority upheld his sentence. But rather than try to defend the three-strikes law, the opinion merely said the court should not function as a super-legislature.

Andre will languish in prison, then, serving a much longer sentence for his non-violent crimes than most first offenders, or even second-timers convicted of sexual assault or manslaughter.

Politicians saw harsh sentences as one way to satisfy voters fed up with the rising crime rates of the '70s and '80s, and the violence associated with crack cocaine and other drugs. And most would agree that strict sentencing laws have played a key role in lowering the crime rate for violent and property crimes.

Last June, Florida Governor Jeb Bush celebrated his state's 13th straight year of declining crime rates, thanks in part to tough sentencing statues he enacted. "If violent habitual offenders are in prison," Bush said, "they're not going to be committing crimes on innocent people."

California, in particular, has seen a stark drop in crime since passing its toughest-in-the-nation three-strikes law more than ten years ago. Mike Reynolds, who pushed for the legislation after his 18-year-old daughter was murdered by two career criminals says that under three-strikes, "those who can get their lives turned around, will. Those who can't have two choices -- leave California or go to prison. The one thing we cannot allow is another victim to be part of their criminal therapy."

But putting thousands behind bars comes at a price -- a cool $750 million in California alone. That's the annual cost to the state of incarcerating the nonviolent offenders sentenced under three-strikes. Add up all the years these inmates will serve on average and, according to the Justice Policy Institute, California's taxpayers will eventually shell out more than $6 billion. For a state with a battered economy, that's a pile of money to spend on sweeping up petty crooks.

The law also falls hardest on minorities. African Americans are imprisoned under three-strikes at ten times the rate of whites, and Latinos at nearly double the white rate. While crime rates are higher for these minorities than for whites, the incarceration gap is disproportionately wide under three-strikes largely because of drug-related convictions.

Arkansas Governor Mike Huckabee is blunt when it comes to the three-strikes approach to justice: "It's the dumbest piece of public-policy legislation in a long time. We don't have a massive crime problem; we have a massive drug problem. And you don't treat that by locking drug addicts up. We're putting away people we're mad at, instead of the people we're afraid of."

There are some telling figures. In 1985 about 750,000 Americans were incarcerated on a variety of pending charges and convictions in federal and state prisons and local jails. The number of inmates is now about 2.1 million, of which some 440,000 were convicted on drug charges. A significant portion of the rest are there because drug addiction led them to rob and steal.

Early on there were signs that mandatory minimum laws -- especially three-strikes statutes -- had gone too far. Just a few months after Washington state passed the nation's first three-strikes law in 1993, a 29-year-old named Paul Rivers was sentenced to life for stealing $337 from an espresso stand. Rivers had pretended he had a gun in his pocket, and the theft came after earlier convictions for second-degree robbery and assault. A prison term was appropriate. But life behind bars, without the possibility of parole? If Rivers had been packing a gun -- and shot the espresso stand owner -- he wouldn't have gotten any more time.

Just a few weeks after California's three-strikes law took effect, Brian A. Smith, a 30-year old recovering crack addict, was charged with aiding and abetting two female shoplifters who took bed sheets from Robinsons-May department store in Los Cerritos Shopping Center. Smith got 25 years to life.

As a younger man, his first two strikes were for unarmed robbery and for burglarizing an unoccupied residence. Was Brian Smith really the kind of criminal whom California voters had in mind when they approved their three-strikes measure? Proponents sold the measure by saying it would keep murders, rapists and child molesters behind bars where they belong. Instead the law locked Smith away for his petty crime until at least 2020, and probably longer -- at a cost to the state of more than $750,000.

His case is not an aberration. By the end of last year, 2,344 of the 7,574 three-strikers in the state's penal system got their third strikes for a property offence. Scott Benscoter struck out after stealing a pair of running shoes, and is serving 25 years to life. His prior offenses were for residential burglaries that, according to the public defender's office, did not involve violence. Gregory Taylor a homeless man in Los Angeles, was trying to jimmy a screen open to get into the kitchen of a church where he had previously been given food. But he had two prior offenses from more than a decade before: one for snatching a purse and the other for attempted robbery without a weapon. He's also serving 25 years to life.

One reason the pendulum has swung so far is that politicians love to get behind popular slogans, even if they lead to bad social policy.

Few California lawmakers, for example, could resist the "use a gun, go to prison" law, a concept so catchy that it swept the nation, and is now codified in one form or another in many state statues and in federal law. It began as a sensible idea: Make our streets safer by discouraging drug dealers and the like from packing guns during their crimes. But the law needs to be more flexible than some rigid slogan. Ask Monica Clyburn. You can't, really, because she's been in prison these past ten years. Her crime? Well, that's hard to figure out.

A Florida welfare mom, Clyburn accompanied her boyfriend to a pawnshop to sell his .22-caliber pistol. She provided her ID because her boyfriend didn't bring his own, and the couple got $30 for the gun. But Clyburn had a previous criminal record for minor drug charges, and when federal authorities ran a routine check of the pawnshop's records, they produced a "hit" -- a felon in possession of a firearm. That's automatically 15 years in federal prison, which is exactly what Clyburn got. "I never even held the gun," she noted in an interview from prison.

No one is more appalled than H. Jay Stevens, the former federal public defender from the middle district of Florida. "Everybody I've described this case to says, "This can't have happened." [But] it's happening five days a week all over this country."

Several years ago, a prominent Congressman, Rep. Dan Rostenkowski of Illinois, was sent to prison on mail-fraud charges. It was only then that he learned what he'd been voting for all those years when anticrime legislation came up and he cast the safe "aye" vote. Rostenkowski told of being stunned at how many young, low-level drug offenders were doing 15- and 20- year stretches in federal prison.

"The waste of these lives is a loss to the entire community," Rostenkowski said. "I was swept along by the rhetoric about getting tough on crime. Frankly, I lacked both expertise and perspective on these issues."

Former Michigan Governor William G. Milliken signed into law his state's mandatory minimums for drug cases, but after leaving office he lobbied the state legislature to rescind them. "I have since come to realize that the provisions of the law have led to terrible injustices," Milliken wrote in 2002. Soon after, Gov. John Engler signed legislation doing away with most of Michigan's mandatory sentences.

On the federal level, judges have been expressing their anger with Congress for preventing them from exercising discretion and mercy. U.S. District Court Judge John S. Martin, Jr., appointed by the first President Bush, announced his retirement from the bench rather than remain part of "a sentencing system that is unnecessarily cruel and rigid."

While the U.S. Supreme Court has yet to strike down mandatory minimums, one justice at least has signaled his opposition to them. Justice Anthony M. Kennedy said in a speech to the 2003 American Bar Association meeting that he accepted neither the "necessity" nor the "wisdom" of mandatory minimums.

"One day in prison is longer than almost any day you and I have had to endure," Justice Kennedy told the nation's lawyers. "When the door is locked against the prisoner, we do not think about what is behind it. To be sure, the prisoner must e punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person. Still, he or she is art of the family of humankind."

Bulk of '3 strikes' crimes nonviolent, study finds 
Longer sentences add $500 million a year to budget 
- Mark Martin, Chronicle Sacramento Bureau
Friday, October 21, 2005 

Sacramento -- More than half of California inmates serving time in prisons due to the state's "three strikes" law are there for nonviolent offenses, according to a new study of the law that also found little link between the law and crime rates. 

The longer sentences called for under the law have been used on more than 87,000 inmates and have added about $500 million a year to the state's corrections budget, reports the state's nonpartisan Legislative Analyst's Office. 

Now more than 10 years old, the effects of three strikes remain disputed. The report, released Thursday by the office that provides research to the state Legislature, will likely provide ammunition for both sides of a debate about whether the sentencing enhancement protects society from career criminals or jails too many petty thieves and drug addicts for far too long. 

The law has proved to be far less costly to taxpayers than originally predicted and has been used on inmates with lengthier and more serious crimes in their pasts than other inmates, according to the study. But the study's authors also say the law has had a small impact on crime rates in the state.

"There is no research indicating any link between severe punishment and a reduction in crime,'' said Greg Jolivette, co-author of the report. 

Three strikes allows prosecutors to seek a sentence twice as long as otherwise allowed for anyone who has one prior serious or violent felony conviction, and a 25-to-life sentence for anyone with two prior felonies. 

Crime rates have dropped since three strikes went into affect, although the report notes that crime rates were also falling rapidly during the early 1990s, before three strikes. 

And the study found that crime rates seemed to fall at about the same rates in California counties that used the law frequently and those that didn't. 

The law leaves it up to prosecutors to determine when to seek the longer sentences and allows judges to discount past felonies at their discretion. 

For that reason, the law has been used differently in California counties. 

Crime rates fell by an average of 37 percent between 1994 and 2004 in Kern, Los Angeles, San Diego and Riverside counties, the four counties that used the sentencing enhancements the most. But crime fell by an average of 33 percent in San Francisco, Alameda, Contra Costa and Ventura counties -- the four counties that used three strikes the least -- during the same period. 

"You would expect the counties who used three strikes more to have seen more of a drop in crime,'' Jolivette said. 

Supporters of three strikes argue it is difficult to determine the law's true effect on crime, however. 

"The point of the law was to target a small group of repeat offenders and get them off the streets,'' said Marc Klaas, whose daughter's murder in 1994 attracted attention to the three strikes measure. "How can anyone say what these guy would be doing if they weren't in prison?'' 

The law has plenty of critics who complain that too many long sentences have been handed out. The report found that 56 percent of those in prison on second- and third-strike sentences were incarcerated for nonviolent crimes. 

An effort to revise the law and restrict its use for nonviolent crimes was defeated at the ballot last year. 

Assemblyman Mark Leno, D-San Francisco, plans to push legislation next year that would prevent the use of the third-strike sentence for nonviolent crime. 

E-mail Mark Martin at

Dan Walters: 'Three strikes' law a decade later - its impact is still unsettled
By Dan Walters -- Bee Columnist
Published 2:15 am PDT Friday, October 21, 2005

Californians' preoccupation with crime as a political issue reached its apogee in 1994 when the Legislature - dramatically reversing an earlier position - passed the "three-strikes-and-you're-out" law that sharply increased penalties for repeat offenders, and voters re-enacted it themselves later that year.
A liberal Legislature had rejected the "three strikes" law despite the pleas of Fresno photographer Mike Reynolds, whose daughter had been murdered by a repeat felon. However, in late 1993, the abduction and murder of 12-year-old Polly Klaas in Petaluma by a particularly loathsome recent parolee reignited the issue, and panicky lawmakers did an abrupt about-face.

The omnipotent speaker of the state Assembly, Willie Brown, opposed the measure but as the Klaas case erupted, he acknowledged the political firestorm, describing his colleagues as "a group of people of zero courage" and adding, "Not even Willie Brown, regardless of his persuasive powers, could turn that around or alter that course. I would be shouting in the wind."

There were other agendas in play, of course. Then-Gov. Pete Wilson was facing a tough re-election in 1994 and was trumpeting his tough-on-crime credentials as he faced state Treasurer Kathleen Brown, who had opposed capital punishment. And the California Correctional Peace Officers Association, the powerful union that represents prison employees, had provided seed money for the "three strikes" initiative. Locking more felons behind bars would, of course, require more prison cells and more dues-paying unions members to guard them.

"Three strikes" has been California's law for a decade, surviving several judicial challenges and a major effort last year to persuade voters to soften its provisions, financed by a wealthy man whose son was serving an enhanced prison term. When it appeared that the 2004 measure (Proposition 66) might pass, Gov. Arnold Schwarzenegger intervened with a last-minute campaign to persuade voters to reject it.

Stripped of its politics, has "three strikes" made Californians safer from predatory criminals as Reynolds and other advocates said it would, or has it filled the prisons with relatively harmless minor criminals at great cost to taxpayers, as the naysayers still contend? A new study by the Legislature's budget analyst acknowledges that there are no definitive answers.

It's an arithmetic certainty that "three strikes" has prevented at least some crimes, and perhaps some violent crimes, that otherwise would have been committed. A quarter of the state's prison inmates are serving enhanced terms because of the law, and some of them certainly would have committed crimes were they not behind bars. But it's impossible to pinpoint the law's precise effect, as the legislative analyst's overview points out, because other factors were also in play.

The study notes that the state's crime rate had declined by 10 percent in the three years prior to "three strikes" enactment and has continued to drop since, with a few blips. But similar declines have been charted in the nation as a whole, and in California the declines have been roughly the same in counties where "three strikes" is often applied and in those where prosecutors and judges use it sparingly.

In conservative Kern County, there are 1,518 "three strikes" sentencings for every 100,000 adult felony arrests, but in liberal San Francisco, at the other end of the scale, it's just 113 per 100,000. Not surprisingly, there is a strong correlation with the application of the law and local voting on last year's Proposition 66.

If proponents' claims about its positive effects are difficult to prove, the claims of its opponents that "three strikes" would flood the prisons are equally shaky. Although a quarter of the 160,000 or so current inmates have "three strikes" enhancements, that proportion appears to have stabilized and inmate population growth has been far less than the opponents claimed it would be.

Overall, the legislative analyst estimates that keeping "strikers" behind bars is costing taxpayers about a half-billion extra dollars a year. But of course we cannot measure how much property loss or human grief that half-billion dollars has prevented, so the debate continues.

About the writer:
Reach Dan Walters at (916) 321-1195 or . Back columns:

Posted on Thu, Oct. 20, 2005 

Report: Thousands serving time under three strikes law

Associated Press

SACRAMENTO - About 43,000 inmates are in California prisons under the 1994 voter-approved three strikes law, according to a Legislative Analyst's Office report released Thursday.

The cost to house them is $1.5 billion a year, the report from the nonpartisan state agency said.

The sentencing law, one of the nation's strictest, generally requires two-time felons to serve at least a 25-year sentence after being convicted of a third felony. Second strikers, those convicted of two felonies, are imprisoned for double the time the offense would normally carry for a defendant without felony priors.

Prosecutors have the discretion on whether to seek the higher sentences.

State voters failed to pass a measure to make it more lenient last year.

The report, titled "Three Strikes: the Impact After More Than a Decade," said there was "little consensus among researchers about the impact of three strikes on public safety, even after more than 10 years of application."

The report said less than half the "strikers" imprisoned committed serious or violent crimes, such as rape, robbery and murder. The remainder comprise of drug and property crimes such as burglary.

In 2003, the U.S. Supreme Court upheld life terms under the measure, ruling the states were free to decide sentences.

Inmates age 50 and older increased in the 10-year period - from 5,500 in 1994 to 16,300 last year. The report said it costs taxpayers about $35,000 annually to house an inmate and as much as $100,000 a year to incarcerate older inmates because of health issues.

The report found blacks account for 37 percent of the striker population; Hispanics 33 percent and whites 26 percent - all of which is similar to the total inmate population of about 160,000.

These jampacked joints don't make you safe
By Joe Domanick
Joe Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," is senior fellow in criminal justice at USC Annenberg's Institute for Justice and Journalism

October 16, 2005

IN THE LAST 25 years, the United States has responded to citizens' legitimate fears of murder, muggings and addiction with mindless wars on crime and drugs. Pandering politicians, a sensationalist media and a public content only with tough-guy approaches have compounded the problem. As a result, our prisons are bulging with young, poor blacks and Latinos, nonviolent addicts, alcoholics, petty thieves and the mentally ill. Some are serving life sentences for buying a macadamia nut disguised as a $5 rock of cocaine from an undercover cop. 

"We've been engaged in a prison buildup that's a uniquely 20th and 21st century American phenomenon, one without parallel elsewhere in the world," says professor Todd Clear, head of doctoral studies at the John Jay College of Criminal Justice at the City University of New York.

The number of prisons in the nation has grown quickly, and California is representative. In 1980, there were 12 prisons in the state. Today, there are 33.

Between 1982 and 2001, arrests in the United States increased by 13%, yet the number of inmates in federal and state prisons surged 228%. The total number of Americans in prison, jail, on probation or on parole soared from 400,000 in 1970 to 1.8 million in 1980 and to 6.7 million in 2002. About 13 million Americans have served time for a felony conviction. Although the U.S. contains 4% of the world's population, it houses one-quarter of all the imprisoned people on Earth. 

Incarceration costs have correspondingly exploded. Twenty years ago, the nation annually spent $36 billion on police, courts and incarceration. Today, it's $167 billion. 

It was during the late 1960s and the 1970s that government — state and federal — concluded that the only way to deal with rising crime and addiction was more cops and prisons and far tougher punishment. In the 1980s and '90s, thousands of laws were passed to put this approach into practice. Drug offenses carried penalties as severe as those for violent crimes.

Several factors accounted for the turn to punishment. Then-available social science data showed that many prison rehab programs weren't working. As a result, prison officials abandoned most of them. Underpinning and reinforcing this development was the belief that people behaved criminally because they lacked moral scruples. A big stick and longer prison terms were therefore the best guarantors of social control — and petty criminals, crack-heads and junkies should be treated no differently than rapists, robbers and murderers. California lawmakers were so taken with this view of human nature that, in 1977, they changed the state's penal code to read that the purpose of imprisonment was not rehabilitation but punishment. 

Paralleling the philosophical shift was the emergence of the criminal justice industry as a political player. Its 2.3 million members include highway patrol officers, sheriffs and deputies, district attorneys and prison and jail guards (747,000). Add law enforcement's natural allies — prison construction firms, police equipment manufacturers, the National Rifle Assn. and victims' rights groups — and you have a lobbying force capable of advancing legislation that maximizes sentencing and incarceration.

With more criminals serving longer sentences, the crime rate has dramatically dropped. Experts say increased incarceration explains 15% to 25% of the decline. But it's only part of the story. Texas' prison population rose by 168% from 1992 to 2001, but the state's violent crime rate fell by just 14%. Conversely, New York's prison population jumped 9%, but its violent crime rate fell by 52%, which suggests other factors have played a larger role in crime reduction, such as a stronger national economy, the end of the crack cocaine wars, more street cops, computerized crime-tracking strategies and a smaller population in the prime crime-prone ages of 18 to 34.

Nevertheless, violent crime remains rampant in many of the United States' poorest neighborhoods, where young men and women are sucked into an intergenerational cycle of crime, imprisonment, release and reimprisonment. About 40% of U.S. prisoners are black. If incarceration trends continue, 1 in 3 black males born today will do time in state prison. About 7 million children have a parent somewhere in the corrections system, and they are five times more likely to be incarcerated than kids whose parents have not been imprisoned.

The economic costs of a criminal justice system that emphasizes punishment and incarceration at the expense of rehabilitation and the potential for recovery are unsustainable. Nowhere is this more evident than in California, whose corrections system spends $7.3 billion annually and "has little accountability, no uniformity [or] transparency … too much political interference, too much union control and too little management courage," according to a report commissioned by Gov. Arnold Schwarzenegger.

In California and in other states, governors are turning away from their exclusive reliance on incarceration and reintroducing rehabilitation as a less costly way to deal with some criminals. A return to a criminal justice policy that balances punishment and rehab could save billions of dollars and reclaim hundreds of thousands of lives.

Two things must happen to reform the U.S. corrections system. Law enforcement leaders need to abandon their fiefdoms and work with reform-minded corrections officials such as Rod Hickman, head of California's Department of Corrections and Rehabilitation, to develop rehab programs to help prisoners reenter society successfully. And the public needs to understand that criminal behavior is not simply caused by a failure of moral willpower, but results from a constellation of factors, including dysfunctional schools, poor healthcare, single-parent households and the lack of economic opportunity.

Thursday, August 11, 2005 
Sentence sparks debate on three strikes 
Ex-convict gets 25 years to life for allegedly stalking a bank teller. Some argue that he should be admitted to a hospital instead.
By Denise Nix 
Daily Breeze

A mentally ill ex-convict accused of stalking a South Bay bank teller and convicted of defacing her car was sentenced Tuesday to 25 years to life in state prison under California's three-strikes law.

Although he was never seen in court by the jurors who convicted him of vandalism, Ron Shigaura could be the poster boy for what's right about the three-strikes law or what's wrong with it.

The 41-year-old has led a life of crime for two decades -- roughly the same amount of time he has struggled with mental illness.

His conviction in February was his fifth under the state's tough-on-crime initiative, and qualified him for the maximum sentence of 25 years to life in prison. The same jury deadlocked 9-3 in favor of guilt on a stalking charge.

Deputy District Attorney Lisa Houle argued before Torrance Superior Court Judge Andrew C. Kauffman that Shigaura's behavior and criminal record warrant the maximum term.

The victim told Houle she was very scared Shigaura will come after her.

"This is not one of those cases like menial felony offenses that received a lot of bad press," Houle said, referring to third-strike sentences given to people convicted of stealing such things as a slice of pizza or a videotape. "This is the type of case people had in mind when they voted three strikes to pass."

The victim and two other women who reported similar strange encounters with Shigaura in 2002 and 2003 testified during Shigaura's trial, which he refused to leave lockup to attend.

The victim said Shigaura would visit her at the Washington Mutual branch in Torrance where she worked. He made a scene by insisting that she help him, then told her things such as that he's good in bed, according to Houle.

After she rebuffed his advances, she found her car heavily scratched on Aug. 9, 2003. A witness reported seeing Shigaura with some kind of knife, Houle said.

The woman took some time off work, then transferred to a branch in Manhattan Beach. Her first day there, Shigaura came in. She called 911 and he was arrested.

His mental competency to stand trial was continually questioned, but the case finally went before a jury.

Also testifying was Dr. Kaushal Sharma, who told jurors Shigaura was delusional, suffered from schizoaffective disorder and other mental illnesses. He called Shigaura "one sick cookie."

Shigaura's attorney, Deputy Public Defender Matt Huey, asked Kauffman to delay sentencing so he could have a conservator appointed to represent Shigaura's interests through the county's Mental Health Court.

When Kauffman refused to delay the proceedings, Huey asked Kauffman to disregard a previous strike and sentence Shigaura to a term that gives him a chance for a life outside of prison.

Huey said Shigaura has the worst kind of mental illness because he is not aware he is mentally ill. Huey also noted that the crime was one against property and no one was hurt.

"I just don't think that Mr. Shigaura is in the spirit of the three-strikes law," Huey added.

Shigaura's sister, June Markiyama, begged for mercy on behalf of her brother. She was the voice of family -- including a father who she said spent his whole life trying to protect Shigaura, only to die two years ago from what she believes was the stress of it.

She asked Kauffman to imagine the horror of losing a "precious son" to a mental illness, unable to convince him he needs medication and therapy.

Markiyama asked him to give her brother a chance by sending him to a mental hospital or group home.

"Sending him to prison does nothing, protects no one and diminishes us all," she added.

Three months ago, Kauffman sent Shigaura to the Department of Corrections and Rehabilitation for a mental evaluation to help decide whether he should be eligible for a lighter sentence.

Finding that Shigaura's future holds nothing other than antisocial behavior, Kauffman said he felt it necessary to sentence him to the term prescribed by law.

"This case reveals what is one of the saddest realities of our criminal justice system -- that we just dump into (prison) people who have mental problems," said Loyola Law School Professor Laurie Levenson.

Levenson said this scenario is not uncommon because no one wants to risk having these mentally ill offenders out on the street. And while there is treatment available in prison for those who suffer mental disorders, it's generally not adequate because resources are scarce.

Geri Silva, executive director of Families to Amend California's Three Strikes, said putting Shigaura in prison was "sad and barbaric."

"You don't treat illness with prison," said the advocate for a kinder, gentler crime initiative.

But Mike Reynolds, a three-strikes backer who lost his daughter in a violent crime, suggested that people use mental illness to shrug off responsibility for their crimes.

"We really have to, at some point, assess whether we're going to give him a chance or give his next victim a chance," Reynolds said. "He cannot be on the street. He cannot be allowed to have more victims as part of his therapy.",2232,REDD_17533_3920106,00.html

Judge wants 'third strike' removed
DA insists multiple convictions warrant lengthy prison term

By Jim Schultz, Record Searchlight
July 12, 2005

A visiting retired state appellate court judge wants the Shasta County district attorney's office to consider dropping a "strike" against a 35-year-old Redding man who is facing 50 years to life in prison stemming from a well-publicized standoff last year with sheriff's deputies. 

But Shasta County Deputy District Attorney Ben Hanna said Monday that his office would not drop the third strike against Thomas Wayne Sikora, who was convicted by a jury in May of several felonies, including vehicle theft, evading arrest and possession of a firearm by a felon. 

"We're not going to do it," he said. 

Judge Winslow Christian, who indicated that a five-year prison stint was more appropriate for Sikora, made his request after tearful members of Sikora's family, as well as a minister, sought leniency for him, saying he's since turned his life around as a result of religion. 

"Tommy has truly changed," said Sharon Pruitt, one of Sikora's aunts. 

Christian said he does not believe Sikora deserves a 50-year-to-life sentence under the state's three-strikes law. 

He also said he doesn't have much discretion. 

So he put off Sikora's sentencing until Aug. 16 to allow the district attorney's office to rethink possible punishment. 

"Twenty-five to life is too much, way too much," Christian also said. 

But Hanna told Christian that Sikora, who has two prior burglary convictions and pointed a gun toward law enforcement officers during last year's standoff, is a habitual felon who has repeatedly put the community at risk. 

"It (dropping a strike) wouldn't be in the interest of justice," Hanna said. 

Sikora, who is defended by attorney Richard Farrell, was arrested March 19, 2004, after California Highway Patrol officers spotted a reported stolen vehicle in the Evergreen Road area in Tehama County and chased it north into Shasta County and onto Gas Point Road. 

Sikora then crashed or ditched the pickup on a side road, ran through brush and broke into a Greengate Road home in Cottonwood, sheriff's deputies have said. 

A SWAT team eventually fired tear gas into the home's attic following an approximately five-hour standoff, and Sikora was taken into custody after he attempted to flee the home. 

Reporter Jim Schultz can be reached at 225-8223 or at

Copyright 2005, Redding. All Rights Reserved.

Third-striker sentenced to life for stealing groceries
By JESSICA LOGAN, Californian staff writer

Posted: Tuesday April 5th, 2005, 11:00 PM
Last Updated: Tuesday April 5th, 2005, 11:12 PM

A 50-year-old man with a lengthy criminal history could spend the rest of his life in prison for stealing a basket of groceries in 2003, a judge ordered Tuesday.

Kern County Superior Court Judge Kenneth C. Twisselman III sentenced Mark Eddie McKenzie to 27 years to life in prison after he was convicted of a petty theft.

McKenzie had been previously sentenced to the same term, but an appeals court ruled that he couldn't be convicted of committing a petty theft and for attempted possession of stolen property for one act.

The appeals court sent the case back to Kern County Superior Court for resentencing.

McKenzie was given the term of 27 years to life because that was his third strike under California's three-strikes law.

Under this law, a person who racks up a third felony may be sentenced to life in prison.

Prosecutors in many counties across California have decided to pursue a third strike on a case-by-case basis.

Dan Sparks, the second in command under Kern County District Attorney Ed Jagels, said his office pursues life in prison on any possible third-strike offense, even nonviolent.

"We do not see any room in the language of the law to exercise ... discretion," Sparks said.

McKenzie's attorney Nancy Sharp disagreed with the policy.

"I don't think it's a good way to approach the policy," Sharp said. "It's a mindless policy. It allows people to do horrible things because it's policy. I think we should expect more from our judges and from the prosecution."

Deputy District Attorney Jessica Hartnett, who was the prosecutor in the sentencing, said life in prison was justified.

"This man had a prior record of violence," Hartnett said. "He was also a recidivist."

She noted an array of offenses dating back from 1975 including burglary, drug, and firearms crimes. The strikes were given for assault with a firearm in 1983 and committing a lewd and lascivious act with a child under the age of 14 in 1988.

Sharp disagreed.

"It's immoral to send a person to life in prison for stealing groceries no matter what his history," Sharp said.

She was hoping that the judge would have shown leniency on the case.

"There is no justice when a man can get more time for stealing groceries than for murdering somebody," Sharp said.

'Three strikes' is too harsh, needs to be changed
By Pam Martinez -- Special To The Bee
Published 2:15 am PST Wednesday, March 30, 2005

It's 10 years since the district attorney in Los Angeles County charged me with residential burglary and offered me a plea bargain of 17 years. I already had two priors for robbery, one in 1978 and one in 1987, but in this case, I wasn't guilty. I was pretty sure a jury wouldn't convict me, and 17 years was an awfully long time in prison for something I didn't do. So I refused the plea.
In response, the prosecutor amended the complaint against me and slapped me with a second charge in 1995, petty theft with a prior. He knew there was a better chance of getting a conviction for that. And because he had the discretion under California's "three-strikes" law to prosecute a petty theft as a felony, I was still at risk of a life sentence. In December 1995, a jury found me guilty of petty theft, and in July 1996, I was sentenced to 25 years to life. My husband had just been diagnosed with a terminal illness. Tears were running down his face when he heard my sentence. I never saw him alive again.

My two priors were strikes one and two because they were considered "serious" or "violent." In 1978, I loaned my car to friends, who used it while holding up a liquor store. That led to a robbery conviction. In 1987, I shoplifted merchandise and led the security guard on a chase. That ended in a second-degree robbery conviction. In the third case, I was convicted of stealing a toolbox.

While awaiting my final trial and again after my 1995 conviction, I got jobs at the prison law library. I became my own best legal counsel. I also managed to get help from a University of Southern California law school student. After five years, the Los Angeles Superior Court reversed my conviction and vacated my sentence on the grounds of ineffective assistance of counsel. I was retried and in August 1999, I accepted a plea of nine years. I wasn't going to risk another life sentence.

In all, I served seven years in prison for the 1995 conviction. While I was there, I got involved in Narcotics Anonymous and Alcoholics Anonymous. I cleaned up my act and when I was released in 2001 by a state appeal court, I moved to San Diego and got a job as a sales associate in the garden department of Home Depot. I received merit badges and awards for customer service. I spoke weekly with young adults and at-risk youth at drug rehabs. I became a poster child for rehabilitation.

Happy ending? Not quite. In 2004, the California Department of Corrections recalculated my time served and decided I still owed the state 68 days. I fought back. More than a dozen legislators and many friends supported me. We went to the governor's office with a petition for clemency. Last March, Gov. Arnold Schwarzenegger advocated on my behalf in a letter to the state Supreme Court, where I was appealing the extra time. In part it said: "I would submit that her sentence be commuted to time served and that she be allowed to commence her period of parole forthwith."

The final clemency for me came through from the state Supreme Court on April 29, 2004. This would not have happened without Schwarzenegger's endorsement.

But I'm the lucky one. Thousands are still doing life sentences for petty crimes under three strikes. More than 350 people are in California prisons doing life sentences for shoplifting. They stole T-shirts or batteries or videotapes. Other people doing life sentences had small quantities of illegal drugs, or they were hanging out with somebody dealing.

All of this makes March a very significant month for me. It's the 11th anniversary of this draconian three-strikes law that puts nonviolent people like me behind bars for life for minor offenses. It's also the month that the governor, a hero to me, recommended clemency for me. I'm free, but I'm sad for the thousands of strikers I left behind.

Most Californians were prepared to change the law last November by voting in favor of Proposition 66. Polls showed the measure winning, but $4 million worth of misleading ads aired in the last couple days of the campaign. Ads that starred Arnold, the man I owe my future to.

I honestly don't get it. I'm convinced the governor didn't know what he was doing when he got involved in those ads, because really there's not much difference between me and the people who would have gotten a chance at a new life had three strikes been amended last November.

Schwarzenegger could save hundreds of millions of tax dollars without jeopardizing public safety by supporting a move to change this law and let people just like me pull their lives back together.

We need a three-strikes law that doesn't treat someone found guilty of petty theft the same way we treat a murderer. We need a law that recognizes that someone who committed a serious crime 20 years ago may not be a serious criminal today. We need a law that allows people to be judged by their individual histories. That kind of law would bring California back into line with sanity, not to mention with the rest of the country.

Then, with a stroke of his pen, the governor could make himself a real hero again.

About the writer:
Pam Martinez lives in Los Angeles County. She is pursuing a career in advertising and marketing.

Posted on Sun, Mar. 20, 2005 

Yost: DAs keeping `three strikes' reform alive

By Phil Yost

Mercury News

Last fall, as all the state's district attorneys were warning that Proposition 66 would set murderers loose among the helpless, progressive DAs promised to support reasonable reform of the ``three strikes, you're out'' law in the Legislature if voters were wise enough to reject the reckless initiative.

Two of them are keeping that promise, with more possibly to come. Even though any legislation is a long way from passing (it's an evolving concept), credit them for trying to keep an important debate alive.

``Three strikes'' still needs revision, if the Legislature has the gumption to do it.

Barely had the new session of the Legislature begun when Steve Cooley of Los Angeles County and Kamala Harris of San Francisco approached the chair of the Assembly's Public Safety Committee, San Francisco Democrat Mark Leno, to sketch out a bill.

They are only two of 58 district attorneys. But their jurisdictions include nearly a third of California's population, and therefore, a third of its legislators. Other district attorneys from urban counties are at least somewhat sympathetic.

Proposition 66 aimed to curb the excesses of three strikes. The worst is that after two strikes, which must be violent or serious crimes, any felony, not just a violent or serious one, can be the third strike.

A shoplifter can be sentenced to 25 years to life because petty theft can be a felony if the thief has prior convictions.

Proposition 66 wanted to strike the any-felony provision. As happens with initiatives, its backers got carried away, softening up the law in other respects as well. After starting with a big lead in the pre-election polls, Proposition 66 lost, 53 percent to 47 percent.

During the campaign, some district attorneys said they were comfortable with requiring the third strike to be serious or violent, with several exceptions, because that is the way they apply the law now.

The proposal that the district attorneys have given Leno does that. It would not eliminate as many potential third strikes as Proposition 66 would have, and it would not offer convicted second- and third-strikers as much opportunity to get their sentences shortened.

But it would go a long way toward adjusting three strikes so that fewer non-dangerous criminals would be unjustly and expensively imprisoned in order to make sure that dangerous ones are kept behind bars.

Despite its excesses, I wanted Proposition 66 to pass, figuring the Legislature could be depended on to make the necessary corrections.

With Proposition 66 defeated, the proponents of the proposition, Families to Amend California's Three Strikes and the American Civil Liberties Union among others, are holding the weak hand now.

The Legislature should include them in any discussion of three strikes modification, but if reformers insist on nearly as much in legislation as they were seeking in the proposition, the whole matter will go nowhere. This is not just a situation where half a loaf is better than none; a quarter is better.

Proposition 66 wasn't drubbed, but its narrow margin of defeat is less encouraging than it looks. Well into the campaign, the proposition was comfortably ahead. Then Gov. Arnold Schwarzenegger weighed in. A major donation gave opponents the resources to put him on TV. Support for significantly rolling back three strikes proved tissue-thin.

``They like it in San Francisco'' is not a winning motto for a crime bill in the Legislature, so building a broad coalition is the only hope. That means taking baby steps. They will be helped by the fact that Cooley is a Republican.

In this debate, the statewide organization of district attorneys is as important as the Legislature. The majority of legislators won't touch three strikes unless the district attorneys cover their backs.

For those of us who think that Proposition 66 proponents had a good idea and a flawed execution, there's at least an ember of hope in the follow-through by Cooley and Harris.

PHIL YOST is chief editorial writer of the Mercury News. Contact him at .

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