These are two separate events and phenomena, but they have truly coalesced together. California already had a booming prison population before Three Strikes, and that population has continued to increase. Likewise, sentencing law in California had already increased greatly by the time the 1994 Three Strikes campaign began. Three Strikes, and the sentencing laws before it, have so greatly expanded the amount of time that people face when they go to prison, and have made some of even the more innocuous crimes in to serious matters, that it is actually hard to contemplate.
As an example, in 1998 I was a fairly new attorney and deputy public defender and I was representing a client charged with a PC 245(a)(1) – assault by means likely to cause GBI. It was a conservative judicial district, and there was a plea on the table which was pretty much standard for that area at that time – the offer was plead to the 245 and get 180 days CJ, straight time. It was basically a fight where the D got the better of the other gut, and it was a clear case of assault by means likely to cause GBI. I was up on the law at the time, and I was greatly concerned that Three Strikes was going to change and that ALL 245 cases, whether they involved a weapon or GBI or not, would become strikes. I had a somewhat reasonable DA at the time, so we looked around for something else. Something that would be innocuous enough to be a basis for felony probation, but that would not become a strike. We agreed to PC 422, the “terrorist threats” statute. It was fairly recent, coming about in 1990 or so. Not that many cases had actually been decided regarding PC 422 at the time. We settled on that. Oops.
As it turns out, PC 422 was added to the Three Strikes list in 2000, converting that glorified misdemeanor fight into a strike. This was not an uncommon event – I knew many, many attorneys who pled out 422 cases thinking nothing of it. Little did we know that PC 422 would be added to the list.
That kind of sums up the thinking of the drafters of the laws that have come down the pipe in the last few decades. “They never saw this one coming, huh?” Prisons that were built in the 1980s and 1990s to get tough on crime are now filled to overflowing, and the California legislature looks to find even more bad guys to put away. The sex offender laws have become so harsh and cruel that at least some of these lawmakers have to have faces bright red with shame at some point during the voting and amendment processes. The Jessica’s Law initiative that passed in 2006 did so with a whopping 80+% of the vote. It was kind of a referendum on sex offenders in general. The voters of California were asked: “You do hate sex offenders, don’t you? You want to kick them while they’re down, right?” The electorate joyously responded in the affirmative: “Why yes, of course we do. We’d like to kick them as much as and as often as possible.”
I get a sick sense of “I told you so,” if only briefly, when one of my various clients’ parents are talking to me, shocked that their drug addicted and/or mentally ill (or both) son is now charged with serious crimes and that he is looking at a long time in prison for whatever bad deed he did while high/drunk/mentally imbalanced/all three. “I don’t understand,” they exclaim, “why is the law so harsh? What is it you’re not doing to defend my son? This is your fault.” I have to admit that I feel a tiny bit of glee when I explain to these deluded parents that their autopilot votes and blind support of the “tough on crime” and “build more prisons” mentalities is exactly what is ensnaring their son and screwing up their grandchildren. Don’t get me wrong, I still fight for my client and I still have compassion. But it still amazes me what these supposedly loving parents are willing to do to everyone else’s children, all for the false sense of security they get from the bad people being locked away. They only seem to care when one of their own gets caught in the not-so-gentle grips of the criminal justice system.
We have become a very cruel society in United States, perhaps without really meaning to be. I personally blame our own prosperity, and the fact that people do not pay attention. So many times laws are passed not because they are the right thing to do, but because the criminal justice lobby was able to portray a particular law as “necessary” to keep “them” in prison. I also blame the willingness of the electorate to delude ourselves that simple fixes are the answer, and for coming to the realization that it is okay to treat human beings like garbage. People are not disposable razors to be discarded when they become inconvenient. We as a society should have shamed those who suggested otherwise, rather than listed to them.
The good news, I think, is that the prison crisis is bringing these problems into the open. In 2004 I was strongly behind Proposition 66, which would have ameliorated at least some of the ill effects of Three Strikes. It would not have made Three Strikes perfect, but it sure would have made it a little fairer. It was winning. But then Marc Klaas (Polly’s father) switched sides and went against it. Then Schwarzenegger came down on it. It failed by a surprisingly close margin – 53% to 47%. But it wasn’t that close. When Schwarzenegger came in to the fight support for Prop. 66 sank like a stone. Had he come in earlier, the support would have run away all the faster. Something hadn’t happened yet. Something that is finally starting to happen now.
Now I am a Democrat and I was against Schwarzenegger when he first ran against Davis, and I still am against him. I would rather have had Agelides last time around. But the screwed up criminal justice system is a truly bi-partisan disaster caused by, and ignored by, both parties. Liberal Democrats in the legislature and governor's office have been almost as bad as conservative Republicans. Republicans run on "tough on crime" while Democrats run away from Republicans running on "tough on crime, and each side one-ups the other in passing dumb and cruel criminal laws that serve only to swell the prisons and starve the rest of the budget.
I believe that when Schwarzenegger came into office he honestly thought that he could fix some of California’s worst problems. Call me naive, but I really believe that he thought he could do it. Remember that Schwarzenegger was going to fix our finances in California, and take us away from all that troubling borrowing? Well, he has thus far failed to do so, and now we are a whopping 14.5 billion dollars in the red. In the meantime, J.C. Kelso (my torts professor from McGeorge, definitely NOT a liberal) is the court-appointed trustee for the prison medical system, appointed by the federal judge overseeing the lawsuit. Kelso has been empowered and entrusted with the duty of making the badly broken prison medical system work, and he’s already made it clear that he will take money from the state to do so – around 3 billion dollars over the next year. Let me repeat that: Some guy, empowered by a federal judge, is going to take 3 billion dollars from a budget that is off already by 8 billion. Oh, and that same judge (Thelton Henderson), along with another federal judge, are poised to release about 30,000 prisoners to relieve overcrowding. These judges DO NOT WANT TO DO THIS. They have delayed, delayed, and delayed some more. But it is coming. The State is simply not fixing the prisons, the prison medical system, relieving overcrowding, or any of that stuff.
But these are only stopgaps, and in some small way are counterproductive. When the judges act this way, a lot of people will blame “federal intervention” for our problems, scapegoating “liberal judges” for making us unsafe. What we need as a people is to be confronted with our poor choices in as stark a manner as possible, preferable with as little violence as possible, but that is unlikely to be the case. The heat is up this summer in the prisons, there is vast overcrowding, the medical system is screwed up. Can anyone say riots? They are coming – give it time. I am not advocating any such thing – quite the contrary, I hope and pray that we can avoid such a catastrophe.
But we have neglected our criminal justice system for so long, or more precisely, we have continuously dehumanized it for so long that we are soon going to pay the various prices for our choices. Massive expenditures. Riots. More and more disrespect for the law. Children being treated in an increasingly punitive manner, and then being housed with adult criminals. Gang violence that crowded prisons breed. Not even the hint at rehabilitation, no drug treatment programs worth a damn. No real societal re-entry programs for prisoners. Etc., etc., etc.
There will come a time soon when we will pretty much have to junk large parts of our current criminal justice system, if only to save us from ourselves. Let us hope that time is coming soon. Rewriting California’s penal code from the ground up may be the smartest thing we will do.
The Guest PD Blogger