Tuesday, July 08, 2008

Three Strikes, The meltdown of California's prisons, and all that jazz

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.

Dennis Wilkins
The Guest PD Blogger


Bonnie said...


Frank Courser said...

Thank you Dennis, I agree! I still can't understand those that support this law and their view about three strikes. There is plenty of evidence that three strikes has failed the public in both the sense of the American criminal justice system and its fiscal impact. The public had no idea what that would be as they were sold it would put the murderers, rapist and child molesters away for life. Yet no person in California has ever been convicted under three strikes for 1st degree murder? But DA's have been able to convict 689 drug users and 346 shoplifters or 181 for receiving stolen property? You spoke of what could be a strike-able offense. But the public is blinded by what that really is. Such as a 16 year steals a bike from a garage, and then is charged with assault when he and a friend get into a fight. Ten years later he is busted for simple drug possession don't see those as heinous crimes, yet that is still what is spewed by its supporters? Maybe it will take California falling into fiscal abyss before we save us from ourselves!

amend3strikes said...

Thank you so much for this blog! Just this weekend there was a really biased, pro-3 strikes report in the SF Gate of all newspapers. Needless to say it was really depressing to read all their misinformation that they were feeding the public. :( This article couldn't have come at a better time to lift our spirits and remind us that those of us trying so hard to fight for changing this law are not alone!! Thank you again!

Pat Dazis said...

I agree the three strikes law is not such a good thing. I have to admit when the monster who murdered our 12 year old grandson Chris Cejas was three striked into 75 to life I did get some satisfaction.
I am concerned however when a nonviolent offender is sent away for life because he nicked some bread or a few video tapes. It seems an abuse of the law, even the spirit of the three strikes law.
I also think while sex offenders need to be kept from our children, there should be a solid tier system in place. For instance the 18 year old who is disliked by the parents of his 15 or 16 year old girl friend should not be made a sex offender for life because they want him out of her life.
The true pedophile is really who we are looking for. That and the violent sexual predator who wants to grab, rape and perhaps kill anyone they can lay their hands on often male or female, those are who need to be on a major sex offender's list.

Our society and our politicians seem to have an all or nothing at all attitude. We end up throwing the baby out with the bath water. Of course the politicians didn't think about how they would house all those new and repeat offenders. They were and are about the "now" and how they look when it comes time to vote them in for their next term. When have politicians EVER thought about the end result beyond how it affects them in the next election? I call it Star Trek politics . They sign their laws then look out over the state or the country and say "Make it so Number One". Never thinking of unintended consequences, of who or how those who have to implement the laws will do it, or how much it will cost and worse who will be snagged by the law who were never intended to be dragged in at all. Now California is in the "s..t" with prison over crowding plus the demands by the feds to give all those prisoners good medical care.
And so the story goes.

PD Dude said...

Great stuff Dennis.

Pat, my heart goes out to you. I know that nothing will be any consolation to you, but all of the ideas for amending 3 strikes involve only amending it relating to non-serious and non-violent present offenses. Thus, if someone has prior strikes and shoplifts, then they do not face a life sentence. However, if they do a violent act (and that does not necessarily involve taking someone's life), then they would still be subject to a 3 strike sentnece.

In other words, your child's killer would have received the same sentence wehther 3 strikes was reformed or not. The only difference is - and this is a slap - your child's killer got almost the same sentence that the person who stole some golf clubs got when he case went to the US Supreme Court, who ruled that 50 to life was not cruel and unusual.

Morris1 said...

Thank you for this blog. I believe that finally the public is starting to see what "THEY" have created with their "tough on crime" initiatives and bills that have been voted into law. The bottom line is that people are sheep and can be led to slaughter by the ever campaigning politician trying to further his/her career. When did any of these laws ever get used for the intended purpose? No one voted for 3 strikes thinking that a shoplifter would get a life term. Law Enforcements takes every well intended law and twists and turns it's intention. The unintended consequences of voters that just plain don't pay attention and really don't understand what they are voting for. Much of this is done on purpose by the author of the legislation. No one can understand the legal terms used in these bills. They refer to penal code this, section that, and who knows that??? THE ANSWER IS SIMPLE. IF YOU DON'T KNOW, VOTE NO! We have 2 more stupid, dangerous initiatives once again showing up on our November ballots. Proposition 6 and 9. Proposition 6 by the Republican George Runner with an initiative that sounds good on the surface, TO MISLEAD THE PUBLIC. Who wouldn't vote for the "Safe Neighborhoods Act". That is how they get the sheeple to vote. This law is a Wolf in Sheeps clothing. It is more of the same expensive, punitive legislation that only serves to punish those already being punished with ridiculously long sentences.

Prop. 9 is Marsy's law. Another vindictive piece of legislation, bought and paid for by Mr. Nichols, the billionaire who lost his sister to a jealous boyfriend. Mr Nichols himself is now under federal indictment on drug, prostition and securities fraud charges. He wants to buy a law! This claims to be for victims rights, however it is another Wolf in Sheeps clothing. Victims already have all these rights afforded to them under Prop. 8 a few years back. This law has a hidden agenda designed to deny parole hearings for up to 15 years, alow hearsay testimony not backed up by anything and a myriad of other punitive punishments heaped on top of those already being punished. There are 29 pages that were dropped off of this initiative to get this on the ballot. Those 29 pages are filled with vindictive, hateful, expensive, unneccessary punitive penal enhancements. This is just the prefix to enact all those pages over time.

Will the Sheeple fall for these again? Both of these Propositions will drain billions more of the general fund for the benefit of the LAW ENFORCEMENT UNIONS which is the real goal.
If we keep stealing money away from education and continue to fund irresponsible legislation that only serves to incarcerate our children in our prisons for ever longer periods of time, those Prison Universities may be the only publicly funded educaton left in the state. PRISONS REHABILITATE, THE CREATE CRIMINALS.


Morris1 said...



Judeca said...

That was one of the best articles I've read in a very long time. The prison system is beyond broken, it's fractured. You have hit on every possible reason we are in this mess, and then some. I wish more people would read this and realize that they may fall into one or more of the catagories of people that have allowed this to happen.

Anonymous said...

That was the most intelligent article on Three Strikes that I have ever read.

We need more PD's like you. I wish my son had gotten one that had half of your interest in justice.

exployer said...

Wow! Great article. Can you run for Governor?

The only way we are to effect change. is by getting this message out to the general public.

Thank you for writing this wonderful piece.

tloveall said...

How can i make a change.............

tloveall said...

To all thank you! for the understanding comments here.
My son is sitting in jail in California,he goes back to court next month for final sentencing he is looking at 16years and 1 strike for code 288a,he is not a repeat offender of any crime(never been in trouble)and was only 21 at the time now 23yrs old,he did not rape her or force her it was a age of consent issue....how can i help all !!!!!!

mapd said...

I am happy to find some SENSE being spoken about this 3 strike law.

Today on the news we were told of a repeat offender from Chico California who has had numerous crimes, from spousal abuse to mainly robbery of various types, who was sentenced to 75 years to life in prison for stealing a truck! I'm sure no one was in it at the time!! I am horrified!

My goodness I am from Australia which was colonized by convicts from England and Ireland who were sent for stealing food or other petty crimes. They faced indescribable punishments, lashings and many other terrible things.

I am starting to wonder what this Nation which I have always had a Big heart for is doing when they use such CRUEL, INHUMAN, and UNUSUAL PUNISHMENTS for non-violent crime.

I have traveled a lot and I don't know of any other Western Nation who have such archaic, Cruel and UNJUST Punishments. Not only how this 3 strike law is often used so abusively, but other sentencing as well.

America has the highest % of Incarceration in the Western World and I would say it has made little difference to the rate of crime.

No one is saying crime should not be Punished, but if more was spent to rehabilitate especially youth offenders, non-violent offenders, sex offenders even, then these shameful, and cruel prison sentences would not be required.

rockeyraj said...

The state public defender advised the parole board that Arm stead should be released because of his



A place for Treatment..

California Drug Treatment

Anonymous said...

seriously - i am a safety director for a trucking company. i have a driver who is a third strike offender. he is the perfect parole for rehabilation as he has progressed so far. he has been brought up on a bogus charge of theft (1.89 lotion) - and a prejudiced person. bottom line he is getting six months for this and cannot go to trial for fear of the three strikes. i need assistance now as he is in an appeal to get an ankle bracelet vs incarcaration. i need someone to help me help him be free. rosemary in stockton california for vernon

Bella said...

Thank you so much, finally someone feels my pain. I'm so frustrated with California and it's views of prisoners. I have a 22 year old daughter who has been in prison for two years and still have two and a half years to go because of an obvious drug problem where she stole goods from a walmart twice to feed her drug habit. Why is this young lady serving so much time when I was watching an episode of "Snapped" where a young lady in Illinois went into a rage after arguing with her mother and drove her mustang into a honda civic stopped a red light, which ended in a horrific fatality where all three innocent men in the Honda Civic lost their life, and the girl only broke an ankle. She ends up getting eight years for vehicular manslaughter, served a little over a year and got out for good behavior. Mind you, she left three people dead. My daughter's crime didn't include bodily harm at all on anybody, and she is still in prison, someone please make sense of this for me. while in prison, no one is trying to rehabilitate her, she is serving 80% of her time without even a chance to get out early because of good behavior. Meanwhile, thank god, she is pursuing a degree, and earning numerous certificates that she on her own accord has sought after. Why wouldn't the prison system look at this type of self-rehabilitating and give her less time simply based on that alone. Once again, someone please help me understand this, the California prison system is a joke, all it does is add to the already messed up state of affairs, it creates hardened criminals out of people who could have been rehabilitated, but instead with the three strike law, it nothing good comes out of it, nothing at all.

Anonymous said...

can you please write the "powers that be," organize protest, go on Oprah, write letters to Obama. Do whatever you can to bring attention to this travesty of justice. You have to garner national attention with your message. You have the power! You are well informed and well versed. If you lead, we will follow! May God bless you and your efforts!

NAOMI said...

Children are always left behind and forgotten about. I have a high school friend name Frederick Hill who is now my husband. Frederick was incarcerated at the age of 16 for robbing a blockbuster with a BB gun with a friend and sentenced to 7 years to life. It has now been 12 years later and he has been denied 6 times. The parole board comments are: “you are a model inmate”, “a breath of fresh air”, “you are making this hard on us”, “you have taken advantage of all prison programs, you received several college degrees and certificates of trades” but we are going to deny you, and this time in January of 09”, due to prop 9 was given a three year denial, and the question they posed was: “why did your mother have bars on her windows when you were growing up, was she a drug dealer” and off the record, he was told it is because you are still young. Now they say these things, but Frederick watches murderers, child molesters(who need life sentences), repeat offenders, and rapist go free. So as a child advocate, what do I tell these children, that everyone makes mistakes and even if you do change, that will make no difference so continue to be who you are and run the streets recklessly. Do I just give up on the them, what is the point? Or sorry kids because you have no money and you are poor, you were bound to fail? Does this keep me motivated? Absolutely not. Should I just give up on these kids? Absolutely not. The system has already done that, I will be here for these kids till my dying day, that is why I went back to school because just being a staff member can only help so many, I want help more and more. Frederick crime partner who was 16 at the time of the crime was paroled last year and the panel that granted him parole were fired for that. After being paroled he was employed three days later, promoted a month later, a regular church attendee and is writing a book, and they say they can not change. Mr. California Gov. says our state is broke, but building new prisons and taking from the education system. Parole board members are denying rightful people parole due to fear of losing their job.
Frederick was granted an appeal in from the 05” denial with the judge saying he should have been given a date. The parole board completely ignored this, and decided on what they wanted to do. Frederick is appealing this denial, and somewhat discouraged and almost got to a point of giving up but as I told him don’t give up. I would not have made it this far by giving up, I pressed on every time and every time I’ve gotten a little further. I have set out petitions, I have something I didn’t know I had when I was younger and that is a voice, when I realized that, no one could shut me up. We deserve to be treated like we are human and apart of the community and this world. I will fight for not only Frederick but every teen who does not have a voice. I'm not talking about murderers , or evil people , but children and people who have t he ability to change and not given that chance.
I would also like to stress that prison guards have written letters on my husband behalf, telling the parole board his ia model inmate and they believe he does not deserve to be there. Guards are so overwhelmed, their staff count is 955 to 3955 inmates to so many square inches, inamtes are not getting thieir mail becasue there are not enough guards on duty, what is this a concentration camp? Beds piled on top of beds. Repeat offenders are getting out and spreading sickness from the prisons to other people, no adequate health care. If no concern about prisoners, why not be concerned about the children that visit, women and parents who visit? I do believe murderers, rapist, and child molesters need to make their bed in the prison system all the day of their life, but this is serious, they are receiving release dates and young men between the ages of 18-21 are sentenced to life for rape, due to them having sexual encounters with 16 and 17 year old girls, who most of them lied about their age, as I used to, but at that age we don't understand the consequences of someone's life by doing that. The justice systme is becoming a joke at this point. I do know we all have a voice, I used to be scared to talk, allowed child molesters to violate me, be abused and tortured myself to quietness, I'm not going to let this happen to other people, not my husband and especially not children, for them to lock them up and throw away the key, my husband is in fear that the overcrowdness will start violence and he may never leave that place.
I need a letter to address this issue, answer these questions. Why? What will be done? I will not stop. What about the kids who are forgotten and not given a second chance, work with me to keep them off the streets, in school, respecting women, respecting themselves, respecting others, taking care of their own children. I need my husband home, they are just not using common sense or being fair and that is what has me to investigate why they use such poor judgement, and now I see the $$$$$ signs for them, and now I have to act