Rolling back three strikes

In California, even some tough-on-crime politicians are beginning to fight a law that sends people to jail for life for petty theft.


Gary DelsohnSam Stanton
May 9, 2000 8:00PM (UTC)

Joe Wilcox, a lay minister from the rural Northern California community of Christian Valley, supported California's "three strikes" law when voters overwhelmingly approved it in 1994. But six years later, while on a jury that was considering putting a man away for life for stealing a bicycle, he couldn't do it.

Wilcox was one of two jurors selected to sit on a three-strikes case in the Sacramento suburbs of Placer County involving Steven Bell, who had been arrested for stealing a $300 bicycle from the garage of a home in the middle of the night. The burglary occurred in February 1999, and an accomplice of Bell's also was arrested and convicted in the case. She got probation.

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Bell had two strikes against him -- burglary convictions in Nevada from 1984, when he was 19, and from 1989, when he was 25.

"I told the judge, 'I'm sorry, I just cannot do this,'" Wilcox recalled. "From a moral standpoint I will not take part in a process that sends a man to jail for life for stealing a $300 bicycle."

Another juror joined Wilcox, and the judge removed the two from the panel. Without the dissenters, the jury came back quickly with a unanimous vote that the bicycle theft should count as a third strike. Bell is scheduled to be sentenced in the case next month and faces 25 years to life -- a punishment equal to or worse than the punishment many murderers face.

Like Wilcox, many Californians are having doubts about the state's three-strikes law, which is the toughest in the nation. There are bipartisan efforts in the California Legislature and among voters to relax the strictest parts of the anti-crime measure, which sends criminals to prison for 25 years to life for a third felony conviction.

Meanwhile, police chiefs, legal experts and jurors called to hear three-strikes cases are questioning whether California needs to step back from the most controversial part of the law, which allows prosecutors to count even the most minor crimes as a "third strike" that makes a criminal eligible for the maximum sentence.

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Facing a barrage of stories about criminals being packed off to decades spent in prison for swiping pizzas, stealing bicycles or shoplifting, lawmakers and other advocates for change are looking to soften the impact of the law.

Opponents of the law are trying to get an initiative placed on the California general election ballot in November that would modify the measure to make it less strict. They need 419,260 petition signatures by June 1 to qualify for the ballot. The state Assembly's public safety committee voted 5-3 last month to adopt a measure that would change the law so that a third strike could not be declared unless the crime involved was a violent felony.

At a rally outside the Capitol building after the vote, dozens of opponents of three strikes and family members of prisoners convicted under the law pleaded for a change in the way California administers its justice system.

"If you steal $10 worth of toilet tissue at the Rite Aid, that's not something we should put you in jail for life for," said Assemblyman Rod Wright, D-Los Angeles, who sponsored the proposed change in the law. "We've got to distinguish between people who are really violent criminals and people who are just down on their luck," he said, referring to the many drug addicts who have been sentenced under the law.

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Wright has an unlikely ally in Orange County Republican Scott Baugh, who, while not willing to go as far as Wright, at the very least wants petty theft and drug cases to be taken off the list of third-strike offenses that bring the maximum prison sentence.

"I'm one who believes that the three-strikes legislation has been the single biggest deterrent to crime in California," Baugh told Salon.com. "That's not to say it hasn't had some erroneous applications." Baugh said he also wants a study of all third-strike cases that involve convictions made before the law was passed in 1994, to make sure only those who deserve three-strikes prosecutions are getting them.

Currently, about three dozen states have a three-strikes law of some sort on the books. California's was the second in the nation, with Washington passing one before the Golden State's voters jumped on the idea. But unlike California, most other states require that a third strike be a serious offense, such as a violent felony. That makes a big difference, as is evident from the incarceration numbers that other states have reported.

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In a study conducted in 1998, five years after three-strikes mania swept the nation, researchers found that California had sent 40,000 criminals to prison as second or third strikers, and that Georgia had sent 2,000. All the other states combined and the federal government had sentenced fewer than 1,500, according to the study by the Campaign for an Effective Crime Policy in Washington, D.C.

"While political rhetoric dominated much of the debate preceding the adoption of these laws -- with claims that three-strikes laws were an essential tool for crime control and the only way to ensure that violent felons were kept off the street -- the laws that resulted have had only minimal impact," the study found.

One of the most disturbing three-strikes cases in California involved Ricky Fontenot, whose parents came up from Southern California for the Capitol rally last month.

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"It's devastating," said Berthena McFarland, from West Covina. "That's my only son. He was a productive citizen; he was doing so good. To go back and dig up stuff from 17 years ago and use it against him like that -- it just isn't right."

Growing up in Los Angeles, Fontenot got mixed up with some rough kids, and he made more than his share of youthful mistakes. His role in a robbery landed him in the California Youth Authority. A purse snatching brought him another felony and more juvenile jail time.

Then, his parents said, he grew up.

At 39, he was a partner in a successful limousine company and was married with three kids. But he ended up with a life sentence five years ago because he was in a car with someone who had an unlicensed gun, McFarland said.

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"When you have two very old prior felonies and then years later you suddenly go to prison for life, that's sorely disproportionate to the offense," Baugh said. "To have an effective justice system it not only has to be tough but it has to be fair."

An arguably more tragic case generated national publicity in November. A small-time hood and his girlfriend killed themselves after being busted in Sacramento County for pot and methamphetamine possession. Just a day before their double suicide, the Sacramento district attorney's office notified Steven Davis it had discovered two prior felonies on his record for armed robbery, dating back more than 20 years in Maryland. Instead of 120 days in jail in exchange for a guilty plea, as he had been promised, Davis was suddenly facing life without parole under three strikes.

If his last crimes had been committed in San Francisco, where the district attorney rarely invokes three strikes unless there is a violent felony, Davis would not have had to fear 25 years to life. Sacramento District Attorney Jan Scully, who ran on an ultratough anti-crime platform, interprets the law much more strictly. That sharp disparity in how the law is administered from county to county also has encouraged demands for change.

But so far the constituency to alter the law remains small.

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"The interest lies mostly with the families that are looking at the short end of the stick when it comes to three strikes," Baugh conceded. "But that doesn't mean we still don't have an obligation to look at it."

Political support may be more diverse than Baugh believes, however. Calls for change have come from a variety of political and law enforcement sources, with Vice President Al Gore, the presumptive Democratic presidential nominee, endorsing a study of problems with three-strikes laws across the nation.

"We ought to review the nature of the crimes that are included in the calculation of this 'three strikes and you're out' provision," Gore said earlier this year at a debate in Harlem, N.Y.

Gore seemed to be playing to the African-American community, where concerns about unfair sentencing are the strongest. But even once staunch advocates of the law are now asking whether things have gone too far.

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The grandfather of Polly Klaas, the little girl whose 1993 abduction and murder in California helped spark a nationwide wave of three-strikes laws, has raised many of the same questions and has spoken out across the state.

"To take someone who has committed a nonviolent crime and send them to prison for 25 years to life is unconscionable," the 80-year-old Klaas said last week in Sacramento. "To have [Polly's] name used to perpetuate this fraud on the people of California, I think, is a disgrace."

Increasingly, people directly involved in the administration of the law are speaking out in agreement.

Sacramento Police Chief Arturo Venegas, a strong supporter of the three-strikes concept, says it's time to modify how the law is applied. "To say the solution to crime is three strikes is ludicrous, just as it would be to say community policing has been the solution to crime," Venegas said. "It has helped in the sense that we've put away some criminals who really needed to be put away a long time."

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Venegas has a direct tie to one case that helped inspire the law -- the 1992 slaying of 18-year-old Kimber Reynolds by a parolee, a case that led Reynolds' father, Mike, to author the ballot initiative.

"I was in Fresno when the Reynolds girl was killed," Venegas said. "I was deputy chief of detectives in charge of the SWAT team that confronted and apprehended and got into a shootout with Mike Reynolds' daughter's killer.

"And I have fought the Department of Corrections' battle here on holding parolees and habitual criminal offenders accountable. That's been part of my career and part of my life.

"On the other hand, the courts need some latitude in sentencing. A person arrested for petty theft of 15 cents -- I'm not sure that's in the best interest to have that person go away for life."

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But the efforts to change California's law may fall victim to political reality in a state where crime has dropped since the implementation of the law. And many credit tougher sentencing for that drop.

Gov. Gray Davis, a longtime supporter of the three-strikes law, has made it plain he has little interest in seeing the law changed. "As long as you have me, you have a governor who believes in and supports three strikes," Davis told a group of advocates of tough sentencing at a dinner in Sacramento recently.

And Davis has a large base of supporters of that stance, including the politically powerful California Correctional Peace Officers Association, the union that represents the state's prison guards. The union gave Davis $2 million for his successful 1998 gubernatorial campaign. Three strikes has been good to the union, ensuring a burgeoning prison population and, critics say, a long-term economic base for its members.

But a more important factor may simply be the reality of a state with 33 million people, most of whom "could care less" about the state's 160,000 prison inmates, according to longtime bail bondsman and former bounty hunter Leonard Padilla.

Padilla, who has spoken to the anti-three-strikes groups about their efforts, has taken pains to point out that their message simply isn't interesting to anyone except the relatives and friends of three-strikes inmates.

A better approach, he believes, is to push for change based on what the law is costing the state. Some people apparently are beginning to listen to that advice. The ballot initiative campaign, for instance, is trying to win approval by asserting that the state could save at least $15 million annually by softening the law.

"I would say 99 percent of the people that I've talked to have pretty much said that they agree with the law, except that it should be for violent crimes," said Wilcox, the Northern California juror who refused to levy a third-strike conviction. "And that is what they thought it was when they voted for it.

"The law as it is currently being used is costing us a fortune," Wilcox added. But in the end his objection is more basic. "To me, it's a moral issue. This type of a punishment does not go along with the offense. It just doesn't."


Gary Delsohn

Gary Delsohn and Sam Stanton have covered the Williams case for the Sacramento Bee.

MORE FROM Gary Delsohn

Sam Stanton

Sam Stanton and Gary Delsohn have covered the Williams case for the Sacramento Bee.

MORE FROM Sam Stanton

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