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Foul Justice

Photo by Lea Rubin

When Mandy Brazell’s fiancé, Teddy Baldwin, was in his early 20s, he was sent to prison twice — once for burglarizing a house, the second time for breaking into a car. After that, she says, he learned his lesson and stayed out of trouble for several years after his release. But then his son died of leukemia, and Baldwin slipped back into the grip of a cocaine addiction. In short order, he was arrested on drug charges.

“He did something wrong, and he deserved punishment,” says Brazell, a slight 21-year-old with pale-blue eyes and blond hair pulled back in a bun. “He should have got five or six years.”

Instead, Baldwin was sentenced last January to 25 years to life in prison — another petty criminal caught in the sweeping net of California’s “Three Strikes” law.

Brazell, who lives in Sacramento, was in South Los Angeles’ Leimert Park on March 6 to help mark the 10th anniversary of the law’s enactment. Some 200 people gathered on the park’s lawn for a rally and candlelight vigil, surrounded by cardboard “tombstones” bearing the names and pictures of their loved ones who will be spending decades behind bars.

The event was organized by a local group, Families To Amend California’s Three Strikes. FACTS has been lobbying unsuccessfully for years to amend the law, enshrined by a 1994 ballot initiative, which mandates a double sentence for anyone convicted of a second serious or violent felony, and 25-to-life for conviction on a third felony — any felony. Thanks to that wide-open wording, while the law has taken many hardcore criminals off the streets, it has also swept up hundreds of minor offenders for transgressions as picayune as drug possession or shoplifting.

“We’ve done rallies, vigils, petitions. We’ve bussed people to Sacramento and stayed up all night. We’ve done everything an organization can do,” says FACTS executive director Geri Silva. “And our members look at us and say, ‘My son is still in prison. What’s changed?’ But now, they see there’s finally a chance.”

Until now, Three Strikes has survived a barrage of challenges in arenas from the state Legislature to the United States Supreme Court. But this year it may be reined in by the very people who put it in place — California’s voters. An alliance of criminal-

justice-reform groups are well on their way to getting an initiative on the November ballot to remake the law into what voters thought it was in the first place — a statute that will send only violent or genuinely serious third-time offenders away for life.

Timing may prove opportune. With crime down, a new governor and an ongoing budget crisis that has legislators looking to save money anywhere they can, Three Strikes may be politically vulnerable.

Since 1994, more than two dozen states have also passed some kind of law that mandates 25-years-to-life imprisonment for third-time felony offenders. But California’s is by far the most extensively used and broadly worded. According to a study released this month by the Justice Policy Institute (JPI), a Washington, D.C.–based sentencing-reform group, more than 42,000 prisoners — more than one-fourth of the state’s total — are serving doubled or 25-to-life sentences under Three Strikes. Nearly two-thirds of them are doing time for a nonviolent offense. That number includes more than 1,000 inmates serving 25-to-life for theft under $400 or drug possession. Some of their crimes practically define the word petty: One man is doing 31 years for stealing a pair of AA batteries; another got 25 years for shoplifting three packs of J.C. Penney T-shirts.

Leon Shirley, 51, a wound-up cannonball of a man from West Los Angeles, knows all about it. His brother Gaylon, he says, was sentenced to 28-to-life for holding 6.8 grams of crack. “He’s 50 now. I don’t think he’ll ever get out,” says Shirley. “This is a law affecting mainly poor people. People like Rush Limbaugh go to drug rehab. My brother goes to prison.”

Keeping all those third-strikers locked up for so long is also costing taxpayers millions of dollars every year. It costs about $28,000 a year to keep the average convict in prison, and the price goes up as they age and their health deteriorates.

 

Still, the bottom-line question for most people is: Does Three Strikes make us safer? The evidence is, at best, ambiguous. The state’s crime rate has gone down dramatically since 1994 — but so has crime nationwide. Most experts chalk that up to a combination of factors, including changing demographics that have temporarily lowered the number of young men — the most crime-prone group — in the population, the waning of the violent crack trade, smarter policing techniques, and the formerly booming economy.

 

Moreover, the JPI study found that California counties that used the Three Strikes law less saw violent crime drop by an even greater margin over the last 10 years than did crime in counties that use Three Strikes more often. And crime in New York, which has no Three Strikes law, dropped even more than crime in California over the same period.

But the law’s supporters aren’t impressed. Former Secretary of State Bill Jones, who co-authored Three Strikes and is gunning for Democrat Barbara Boxer’s Senate seat this year, maintains that “There are tens of thousands of fewer crime victims and thousands of individuals alive today due to this vital law.” Fresno resident Mike Reynolds, who helped author the statute after his daughter Kimber was murdered by a drug-addled mugger with several prison stints under his belt, points to FBI statistics showing that crime fell further between 1993 and 1998 in California than in any other state except New York. (Those same statistics, however, also show that some states without Three Strikes laws outpaced California in reducing violent crime.)

“The difference in California is Three Strikes,” says Reynolds. “If the economy had anything to do with crime, crime should have been going up like a bullet during these terrible last few years.” In fact, crime has been going up in Los Angeles County; Reynolds lays that at the door of District Attorney Steve Cooley, who refuses to use the law to prosecute lesser nonviolent and drug offenses. “They’ve got criminals down there who know the D.A. doesn’t have the balls to prosecute them,” Reynolds huffs.

And as for the cost of keeping prisoners locked up, “There’s also a cost to letting them out,” says Reynolds. He estimates that Three Strikes has prevented millions of crimes from being committed, saving the state’s residents billions.

Three Strikes swept into law at a time when fear of crime was a national obsession, heated to the boiling point by the murder of Polly Klaas, a 12-year-old Petaluma girl kidnapped from her bedroom by veteran criminal Richard Allen Davis. From the first, critics have decried it as overly broad. No fewer than nine bills have been introduced in the state Assembly to moderate Three Strikes — each one killed or vetoed. The law

has also run the gauntlet in the courts. Though a federal appeals court deemed it unconstitutional, the U.S. Supreme Court overruled it, declaring last year that the 25-to-life sentences given to a man who stole nine videocassettes and another who filched three golf clubs did not constitute “cruel and unusual punishment.”

Meanwhile, however, district attorneys in San Francisco, Los Angeles and other counties — who have broad discretion as to whether to try lesser offenses as strikes — have simply stopped applying the law so much, reserving it only for more serious cases. While former Los Angeles County D.A. Gil Garcetti famously tried in 1995 to get an ex-con sent up for life for stealing a slice of pizza, his successor, Steve Cooley, has made a very public point of applying the law more selectively. In 1996, 559 people were convicted of third strikes; by 2001, under Cooley, that number had dropped to 192.

 

This November, California voters may get the chance to make Cooley’s de facto approach into de jure law. With the support of FACTS, the ACLU and other groups, an Orange County–based outfit called Citizens Against Violent Crime (CAVC) is gathering signatures to place on the ballot an initiative that would make only violent and specific serious crimes count as strikes. It would also allow inmates convicted of minor offenses to appeal their second- or third-strike sentences, and would boost penalties for adults who molest children.

“Our goal is not to eliminate the law but to make it balanced and fair,” says CAVC vice-chair Jim Benson, a former baseball-card-and-collectibles shop owner and onetime state Assembly candidate for Ross Perot’s Reform Party. Benson voted for Three Strikes in 1994, but says he didn’t realize what its real impact would be. “A lot of us thought we were voting for a law targeting violent, heinous criminals like Richard Allen Davis, not someone who steals a loaf of bread from a food pantry.”

With funding from a Sacramento insurance businessman, Benson says the group has already collected nearly enough signatures to guarantee it a spot on the ballot. He’s confident of victory if the measure gets to the voters: A poll commissioned by CAVC and FACTS last year found that nearly two-thirds of those surveyed supported amending Three Strikes so that it would apply only to violent felonies.

 

They’re not the only ones rethinking harsh sentencing statutes. Over the past three years, some half-dozen other states have either abolished or limited their own mandatory sentencing laws, primarily because they can no longer afford to keep so many people locked up in these bleak fiscal times. California has already embraced the same logic, though not yet that tactic; the state has announced plans to soften the rules of the parole system, with an eye toward lessening the number of offenders who wind up back behind bars.

Moreover, Schwarzenegger is the first governor in many years who is not beholden to the powerful state prison guards’ union. That union helped bankroll the Three Strikes initiative in the first place, and doled out millions to Governors Wilson and Davis, ensuring that neither man would ever support measures that might reduce the state’s prison population and thereby jeopardize guards’ jobs. But Schwarzenegger didn’t get a dime from them, and so might be open to reforms that they oppose. He has already shown a willingness to look a bit softer on prisoners than his predecessors; he recently allowed the parole of two aging convicted murderers, something Davis swore he would never allow.

“Davis felt vulnerable as a centrist Democrat to being called soft on crime,” says Christopher Calhoun, deputy director of public policy with the ACLU of Southern California. “Arnold may have the ‘Nixon goes to China’ cover that’s required.”

Such talk, of course, makes Mike Reynolds apoplectic. “You’re going to see a wholesale bloodbath if this passes,” he says, predicting it will mean the release of thousands of cons and the encouragement of countless criminals.

Three Strikes still has plenty of other backers, primarily among law-enforcement officials. “This initiative constitutes the most dangerous piece of criminal-justice legislation to confront the people of California in the past 30 years,” writes L. Douglas Pipes, a Contra Costa County deputy district attorney. “I believe that the resounding defeat of this initiative should be the single highest priority of every law-enforcement agency and officer and of all law-abiding citizens of California.”

“I think the average Californian is happy with Three Strikes,” Wayne Strumpfer, spokesperson for the California District Attorneys Association, recently told The San Diego Union-Tribune. “People like to be safe, and Three Strikes makes us safe.”

Strumpfer’s second point is debatable. His first, however, will likely be settled in November.

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