By John Riley – former contributing author for Crime, Justice and America magazine. Originally published in 2002 and reposted with permission from Crime, Justice and America magazine
William Gerber was home alone when he shot his television set. He’s now serving life in prison as a result of the crime.
Leandro Andrade is serving a sentence of 50 years to life for stealing about $150 worth of videotapes.
Gary A. Ewing stole three golf clubs and was put away for 25 years to life.
Men and women are serving up to life in prison for stealing pizzas, potatoes, vitamins, and cigarettes — among other petty crimes. A homeless man now has a home in prison for life after breaking into a church looking for food.
These draconian prison sentences were not meted out in some totalitarian, third-world country where justice is only a dream. They were handed down by California courts under the gun of the country’s harshest “three strikes and you’re out” law. This law allows a convicted felon’s third offense to result in a life sentence — even if the third offense is a misdemeanor.
“It’s absurd,” said Sacramento civil attorney Teresa Zuber. “Life in prison for shooting your own television is absurd.”
Elvis did it, but then he wasn’t in California.
Call In The Umpire
Zuber represents William Gerber in a legal issue unrelated to the three-strikes law. Gerber, who had prior convictions related to drug use and making threats, received a life sentence for killing his television set. While in prison he decided he wanted to artificially inseminate his wife and sued to be allowed to do so — Zuber represents him in the case. But if the U.S. Supreme Court decides that California’s third-strike law is unconstitutional, there is a possibility Gerber won’t have to worry about artificial insemination. He can deliver the goods in person.
The fate of thousands, some estimates are as high as 35,000, of California inmates is up in the air, pending the outcome of the Supreme Court’s decision.
In April the high court agreed to hear arguments about the constitutionality of the three-strikes law, when the third strike is a minor property crime.
The hearing is the result of an appeal field by California Attorney General Bill Lockyer. Lockyer appealed a ruling by the 9th U.S. Circuit Court that some sentencing was so disproportionate to the crime that it violated the Eighth Amendment’s guarantee against cruel and unusual punishment.
Twice in the past seven months, 9th Circuit Court has overturned the sentences of repeat offenders who were given a lengthy prison terms for a third strike that was a petty theft. In November it overturned Andrades’ sentence. In February it overturned the sentences of Richard Napoleon Brown and Ernest Bray, both of whom had been convicted of violent crimes in the past.
Brown had been sent to prison for at least 25 years for stealing a car alarm worth about $25, Bray for stealing three videotapes.
The 9th Circuit Court ruled that the sentences imposed upon Brown and Bray violated the Eighth Amendment, even though the men had committed violent crimes in the past.
The Strike Zone
In California, petty theft is a misdemeanor, but petty theft with a prior theft conviction is a felony, which makes it a strike.
Lockyer says a decision by the Supreme Court will clarify the issue of cruel and unusual punishment. The court agreed to review two cases — those of Andrade and Brown, but Lockyer said he may ask it to review Bray’s case as well.
Most states have some version of a three-strikes law for repeat offenders, but California is the only state where a misdemeanor may count as a third strike. Lockyear agreed that California may have the harshest of all three-strike laws in the country, but says that is not an issue because one state has to be the most severe.
Sacramento criminal attorney Ken Rosenfeld says the harsh law is misunderstood. “Essentially, certain felonies are considered `strikes,’ “ he said. “If a person is convicted of a strike, you must serve 85 percent of your sentence. If the conviction is not a strike, then you serve half the time of the sentence.
“It’s very strange. There are a lot of problems with the law. If you are caught selling 10 pounds of heroin, it’s not a strike and you get half time. But if you say over the phone, `I’m going to beat the hell out of you,’ it’s a strike and so 85 percent of the sentence must be served.” Therefore, Rosenfeld points out, the third-strike law has an impact on all sentencing – not only when the crime is a third offense.
Rosenfeld says he believes the law is unconstitutional on a number of grounds. For one, he claims it is unconstitutional to put someone in jail for life for petty theft. For another, it takes sentencing out of the hands of judges. By creating the third-strike law, the legislature essentially passed sentences on people convicted of crimes. “The judicial branch should determine sentencing, not the legislative,” Rosenfeld says.
A Hit To Right Field
Rosenfeld traces the severe law to a close political race in 1993 between incumbent Republican Governor Pete Wilson and Democratic challenger Kathleen Brown, state treasurer.
With Wilson trailing in the polls, he came out with a two-pronged initiative — one of them a promise to bar illegal immigrants from receiving public education, non-emergency health care and welfare. The other was a vow to get tough on crime.
The three-strike law passed easily in the wake of the brutal murder of 12-year-old Polly Hannah Klaas, who was kidnapped from her bedroom in her Petaluma home on Oct. 1, 1993.
Richard Allen Davis, a man with a lengthy criminal record, was convicted of the murder and in 1996 was sentenced to die. On March 7, 1994, Wilson signed the three-strikes law, which mandated sentences of 25-to-life prison terms for defendants convicted of any felony who had already been convicted of felonies deemed “serious” or “violent.”
The Washington Post, in its May 5 issue, noted that some prosecutors are afraid that if the three-strikes law is overturned they will lose a valuable tool in their prosecution of career criminals who have a history of violence. “What seems to get lost in this debate is that to fall into the three-strikes law, a criminal must have been previously convicted of two serious or violent felonies,” the Post quoted Lawrence Brown, executive director of the California District Attorneys Association. “This has been highly effective in targeting the worst of the worst and making California safer.”
Strikes Out Looking
But, while supporters of the three-strikes law said it has reduced violent crime by putting repeat violent offenders in prison for life, and would deter ex-felons from further criminal activity, a study by the Justice Policy Institute of California revealed the law did not live up to its expectations.
While supporters of the law credited it with a major drop in the crime rate after its passage, the JPI said the decline was no different than in states without a three-strikes law. And, according to the study, the law was not a deterrent. The institute recommended that the law be repealed or amended to require the third strike be for a violent crime.
“It’s a horrible law,” says Rosenfeld.
The American Civil Liberties Union has been opposed to the three-strikes law from the outset.
In 1996, two years after it went into effect, the ACLU quoted a report by the Center on Juvenile and Criminal Justice in San Francisco. The study revealed that twice as many defendants had been imprisoned under the law for marijuana possession as for murder, rape and kidnapping combined. Some 85 percent of those receiving stiffer sentences had been convicted most recently of a nonviolent offense, the report found.
The ACLU noted the report also showed blacks were being sent to prison 13 times as often as whites. While blacks made up only 7 percent of California’s population, and accounted for 31 percent of the state’s prisoners, they constituted 43 percent of those sentenced under the new law, according to the study. “In California and around the country, getting tough on crime ultimately means getting tough on African Americans,” said Mark Kappelhoff, who was the legislative counsel for the ACLU’s national office in Washington, D.C. in 1996.
According to the ACLU, the law has been blamed for delaying civil trials in some cities, overcrowding local jails with defendants who refuse to plea bargain, and causing fiscal difficulty for many counties that are already financially strapped.
Rachel King, Legislative Counsel for the American Civil Liberties Union, commented on the three-strikes law after the 9th Circuit Court challenged its constitutionality: “Three strikes laws make a travesty of our system of justice. It’s time that the truth is told about how this law is destroying lives and undermining the power of the courts.”
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