Apr 5

It’s time to get California’s criminal justice system back on track

Miguel Espinoza Daily Journal

Vincent stole children's shoes from Ross Dress for Less. Norman stole a car jack from an open truck bed. Gregory tried to steal bread from a soup kitchen. Larry was found in possession of a stolen cell phone.

Under California's three strikes law, all four men received 25-years-to-life in prison for their crimes and joined more than 4,000 other inmates sentenced to life for non-violent or non-serious third strike offenses since the law's adoption in 1994.

After more than a decade in prison, the first three men got lucky. Under the supervision of an attorney, a group of Stanford law students resurrected their cases, filed habeas corpus petitions on their behalf, and secured their release by convincing the court they had paid their debts to society. It's a painstaking process, requiring gutsy judges and acquiescent prosecutors. Unfortunately, because the students can only take a few cases at a time, such petitions have also proven exceedingly rare.

The Three Strikes Reform Act, a statewide initiative slated for the November ballot, offers the fourth man, Larry, a ray of hope. He's served 15 years of a 25-to-life term for possessing that stolen cell phone. Along with hundreds of others sentenced to life in prison for low-grade felonies in the immediate, crushing aftermath of the law's passage, Larry's first parole hearing is scheduled for sometime around 2022.

If you don't find injustice in these numbers, perhaps you will find imprudence in these: according to the California state auditor, taxpayers spend nearly $50,000 a year to house and feed each of these inmates - roughly the annual cost of a Harvard education. Overall, the additional years imposed on non-violent and non-serious third strikers will cost taxpayers an extra $7.5 billion.

How did we get to this point?

In 1993, 12-year-old Polly Klaas was kidnapped from a slumber party in Northern California and brutally murdered by habitual offender Richard Allen Davis. In the wake of the murder, voters passed the three strikes law. As one of the harshest sentencing laws in the country, it aimed to prevent criminals like Davis from committing such heinous crimes by finding them earlier in their careers and keeping them incarcerated for as long as possible.

Here's how it works: a person convicted of a single serious or violent felony has one strike. If this same person then picks up a second felony conviction, he or she receives an automatically doubled prison sentence. If this second felony happens to be serious or violent, the person now has two strikes. A person with two strikes who picks up a third felony conviction of any kind must be sentenced to a minimum of 25 years in prison. The phrases "serious" and "violent" are terms of art reserved for the more severe crimes in the penal code.

While the first two strikes must be serious or violent, for the third strike, any felony will do. It's a wide net that has caught an unexpectedly wide range of criminals.

Offenders with third strikes falling into the serious or violent category should still be prosecuted to the fullest extent of the current law. These are the criminals whom voters rightly intended to punish when they enacted the three strikes law in 1994. Based on his record, Richard Allen Davis would still have been sentenced to a third strike before he had the chance to kill Polly Klaas.

But what about those whose third strike entailed stealing razorblades, possessing a stolen bicycle, forging a check, or selling a stolen television set? Like Larry, these men all got life too. Supporters of the law argue the men earned their life terms when they committed their prior, more severe felonies. But you can be sure these men did as much time as their judges deemed commensurate for those crimes. In Larry's case, he received seven years for several residential burglaries that qualified as serious felonies.

Recognizing the excessiveness of giving someone like Larry a life term, judicious prosecutors found ways to recalibrate their approach to the law.

Los Angeles District Attorney Steve Cooley led this charge by instructing his deputies to seek life terms generally only in cases with serious or violent third strikes. Some prosecutorial agencies in the state have followed Cooley's lead, but unfortunately, others have not. Those that have not often point to reduced crime rates as validation for the law, even though California's drop in crime has tracked declines in states like Texas and New York, with no three strikes policy at all.

Because the discretion to file third strike cases remains in the hands of prosecutors, membership in the lifer club continues to grow for non-violent and non-serious offenders across the state.

If voters pass the Three Strikes Reform Act this November, dangerous criminals convicted of serious or violent third strikes will still receive indeterminate life sentences, as they should. Offenders facing third strikes whose previous crimes include things like murder, rape or child molestation will also be sentenced to life for any third felony conviction. But the vast number of other criminals who've committed non-violent or non-serious third strikes will not face life. To be sure, these offenders will still face plenty of state prison time, just not a mandatory minimum of 25 years.

Lifers such as Larry will likely receive resentencing hearings, where they will have to convince a judge they've learned their lesson. After 15 years of thinking about that cell phone, Larry certainly deserves the chance and Californians deserve better use of their money.

By enacting the Three Strikes Reform Act, voters can alleviate the pressure on prosecutors like Cooley, who have so far shouldered the responsibility for blunting the inadvertent impact of three strikes laws. We shouldn't have to rely on prosecutors or law students to clean up the mess we've created. Let's get California's criminal justice system back on track this November.

Miguel Espinoza is a prosecutor with the Los Angeles County District Attorney's Office. He is currently on a leave of absence to complete a Public Service Fellowship at Harvard's Kennedy School of Government where he is studying crime policy.The views expressed in this column are his alone and do not reflect the views of the District Attorney's Office.