MIM Introduction: This article was written prior to the defeat of Proposition 66 on the California ballot in November of 2004. We print it here because the injustice of the Three Strikes laws in California, and throughout the country, continues.
As a drug war correspondent buried alive for a nonviolent drug offense, I make my reports from deep within the bowels of the California prison system, one of the last true bastions remaining from the tough-on-crime era.
I have been locked up longer on this drug case than all my strikes cases put together, said 54 year old Manuel Madrid from San Fernando Valley, who began his three strikes life sentence in 1997. "I'm an old man. I'm going to die in here."
Justice in the Golden State
The "three strikes and you're out" sentencing laws came into being at the apex of the lock- em-up movement in the mid-90s. This statute has proven to be infallible, surviving a gauntlet of state and federal judicial challenges. Entering its second decade of existence, the regulation is being challenged once more, this time in the court of public opinion.
Ever since The Three Strikes and Child Protection Act of 2004 qualified for November's ballot - codified as Proposition 66 - it has enjoyed wide support. In August, Fields Research Corporation reported 69 percent in favor and only 19 percent against. If approved, penalties for child molesters would increase while removing nonviolent offenders from the mandatory sentencing scheme.
The numbers associated with three strikes and corrections in general are prodigious. Approximately 7,400 have been given life sentences under this controversial sentencing mandate, 57 percent of whom have committed a nonviolent third strike. Additionally, over 32,000 second strikers have been sentenced under this law, the majority of whom are nonviolent as well.
Second strikers must serve 80 percent to 85 percent of their doubled-up sentences, while three strikers have to serve at least 25 years before they are eligible for parole. This steady-stream of second and third strikers are one of the reasons why the prison population has hit an all-time-high of over 164,000.
With many state governments moving away from harsh punishments as their primary approach to crime, California refuses to acquiesce to the national smart-on-crime movement.
"Crime is down, which proves to us the law is doing what it was supposed to do. We don't want to reverse that progress," said Carol Norris, president of the California Probation, Parole and Corrections Association.
The progress about which Mrs. Norris speaks is a state that spends approximately $30,000 a year to incarcerate an inmate and roughly $5,000 a year per pupil on education. By investing so generously at the wrong end of the problem, the children from underfunded education are systematically absorbed into the California Department of Corrections (CDC) by $100,000 a year prison guards who make more money that\n tenured CSU professors.
California spends nearly $6 billion a year on corrections, and the CDC alone employs over 50,000 workers. The influence the 31,000 unionized prison guards exert on state government renders their power unmatched and the success of their bottom-feeder industry assured for generations.
Crime is not down, it's a chronic social problem. The Golden State's rates of recidivism lead the nation at nearly 70 percent, and has the larges state prison system in a country which accounts for on-quarter of the world's prison population. Crime is a constant in California, and shows no signs of going away.
The Myth of Discretion
One little understood aspect of three strikes is how it gives too much power to the prosecutors and limits a judge's ability to exercise discretion.
"[J]udges and prosecutors already have substantial discretion to avert application of three strikes in the furtherance of justice," wrote Sen. Chuck Poochigian (R-Fresno) in The Sacramento Bee. The Senator and I took opposing positions on Proposition 66 in the Forum section on July 25.
Poochigian refers to the California Supreme Court's decision in People v. Superior Court (Romero) (1996), holding that a sentencing judge has discretion to avoid excessive punishments in the interest of justice.
"My sentencing judge spent 5 minutes considering Romero and denied it," said Tommy Wallen, a 34 year old from Kern County who was struck out for receiving stolen property. "It makes me very angry because it is so misleading to the public. Very rarely is it exercised because most judges are afraid to use it."
Wallen is right. Since the case law favors the prosecution few judges are willing to exercise their limited authority under Romero over the objections of the prosecutor -- especially in counties like Kern where three strikes is vigorously pursued by the District Attorney.
Further, in People v. Carmony, the state's highest court recently limited Romero even more when they upheld a life sentence for failing to register as a sex offender by a mere five days, a technical violation.
"The court did leave open the possibility that it still could happen," said Deputy Attny. General David Andrew Eldridge, the prevailing attorney in Carmony, when asked under what circumstances a judge would risk exercising discretion. "But it would have to be extremely rare."
Wallen and Eldridge provide two realistic views of how discretion actually works. Poochigian, on the other hand, like so many who vigorously support three strikes, repeatedly cite discretion as a substantial safeguard when it is merely a judicial rubber stamp cherished by the prosecutors.
Fear vs. Fact
Due to my serious felony convictions of robbery and two burglaries committed in my late teens and early 20s, I am serving 26 years to life for a nonviolent drug offense. This is a victimless crime generally carrying a couple of years of mandatory treatment instead of jail per Proposition 36. However, due to three strikes, I have already served six years with at least 20 to go.
Recently, my injection into the debate has touched a nerve in my hometown of Sacramento. The Bee published a couple of rebuttals to my July 25 article.
"He minimizes a crime spree from 1984-1988 -- slashing a juvenile across the chest with a knife, requiring 200 stitches," wrote Jan Scully, the District Attorney. "Most recently, a buck knife was found in his car along with 200 baggies of marijuana."
Then Marjie Lundstrom a columnist, took a similar path and claimed, in addition to slashing a juvenile in 1986, I committed yet another assault in 1988 as well. Making me look even worse, she said I possessed not one, but two knives in the commission of the current drug crime.
While a rap sheet is never a pretty picture, neither are prosecutorial journalists who spin the facts in an election year.
I never had 200 bags of marijuana, just one bag weighing five grams. The 1986 slashing, while tragic and regrettable, was reduced to a misdemeanor because the prosecutor discovered the juvenile lied about his role. A misdemeanor is not a strike, and there wasn't a second assault from 1988.
Sadly, the 200 bags of marijuana that don't exist, the misdemeanor assault that isn't a strike and the second assault that never happened have no logical correlation to the lawfully possessed buck knife in the glove box or the multi-wrench with a 2 inch blade on the seat of the car.
The fact is I entered prison a 22 year old high school dropout in 1988, and left a college-educated, published writer in 1994. I paid my debt to society in full. Upon release from prison I pursued an upwardly mobile path -- taking a full-load at my hometown university while starting a construction company from scratch.
However, just like a rap sheet, relapse is not a pretty picture either. I started using again. Eventually, in 1998, I was caught with approximately 20 grams of methamphetamine, a felony, and have been buried alive ever since.
Regardless of our individual stories, fearmongers like Poochigian, Scully and Lundstrom work very hard to portray three strikers as an amalgam of Willie Hortons about to be unleashed on society if they approve Proposition 66. Too often, as I experienced first-hand, their arguments are based on flawed analysis, evidence that doesn't exist, and illogical correlations meant to sensationalize. Politics is simply a dirty game.
"I hope and pray that the public will see the injustice of the current law and vote to make changes," states Wallen. "It is a huge misconception that the District Attorneys Association is trying to say that murders, rapists and child molesters will be freed. This change only affects nonviolent convictions."
- a California prisoner, October 2004