Rethinking "tough on crime"

States across the country are reconsidering three-strikes laws, particularly for low-level drug crimes

Published July 1, 2012 6:00PM (EDT)

This article originally appeared on The Crime Report, the nation's largest criminal justice news source.

Larry Williams was walking down an alley in Anaheim, Calif., in January 1996, when he was stopped by the police.  Williams, who was on parole at the time, struck up a conversation with the officers, and showed them his new cellphone, which he said he bought to keep in touch with his son, according to court records.  The next day, the police learned that the phone was stolen.

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If it had been his first offense, Williams would probably have served a year in prison for possession of stolen property. But because of several prior convictions for residential burglary and prior parole violations, he was sentenced to 25-years to life under California’s three-strikes law.

A federal judge, in a 2005 opinion on the constitutionality of Williams’ sentence, found that Williams illustrated the “extremely rare case” where his prison sentence was grossly disproportionate to his crimes.

“At a minimum, it is questionable whether the combination of Williams’s possession of a stolen cellular telephone and his criminal history justifies a substantially longer sentence than for murder, manslaughter, or rape,” Magistrate Judge Suzanne Segal wrote.

Segal nevertheless ruled that the state courts did not clearly misapply the law, and the sentence could not be overturned. Nearly 16 years after his conviction, Williams, now 47, remains in prison.

Jimmie Harris, the Assistant District Attorney who prosecuted the original case, concedes the sentence may seem “a little harsh.”

“But (Williams) is a recidivist,” he told The Crime Report in an interview. “It’s not your current crime so much as what you did in the past.”

Williams, however, may get another chance to plead his case. He’s one of several thousand prisoners who could be eligible to petition for early release if California voters this November pass a proposed initiative to reform the state’s three-strikes law, the toughest in the country.

Limits on Sentencing

The proposed law would reserve 25-to-life sentences mostly to those who commit serious or violent crimes on their third offense. It would also allow some current inmates, who committed a third strike that was not violent or serious, to petition for early release.

California is not alone.

States across the country are revisiting three-strikes laws and other tough mandatory minimum sentencing laws, particularly for low-level drug crimes. Of the 24 states that passed three-strikes laws in the early 1990s, at least 16 have since modified them to give judges more discretion in sentencing or narrow the types of crimes that count as a “strike,” according to the National Conference of State Legislatures (NCSL).

At least 14 states in recent years also either eliminated mandatory minimum sentencing for low-level drug offenders, or gave judges more discretion to consider alternatives to incarceration, according to the NCSL.

The U.S. Sentencing Commission in October 2011 also recommended changes to federal mandatory minimum sentencing laws, saying that some penalties “apply too broadly, are set too high,” and are applied inconsistently across the country.

“Compared to the ‘80s and ‘90s when the push was to adopt more mandatory sentencing policies, the tide is beginning to move in the other direction,” said Marc Mauer, the director of The Sentencing Project.  “We’re seeing a better climate for sentencing and corrections reform.”

The changes are part of a broader rethinking of many of the “tough on crime” sentencing policies that dominated the country for decades. Driven largely by the flagging economy, states have embraced a variety of reforms to rein in the cost of high prison populations, including diverting low-level drug offenders into treatment; reforming the parole system; and granting early release to certain inmates.

Harris, who prosecuted Larry Williams, concedes the sentence would have been far less harsh if Williams were tried today, in part because of the statewide debate about the cost of maintaining California’s prison system, one of the nation’s most crowded.

“No judge would do that now where the third strike is possession of stolen property,” he says. “We can’t afford it.”

Though criminal justice reform was once thought of as a purely liberal issue, many of the most dramatic changes have come in traditionally conservative states, such as Texas, South Carolina, and Georgia, which have passed comprehensive reform packages.

Louisiana, which has the highest incarceration rate in the country, recently gave prosecutors and judges sentencing discretion for some crimes that normally carry mandatory minimum penalties and will allow early release for some non-violent offenders sentenced to life without parole. Prominent conservatives, such as former House Speaker Newt Gingrich and former Attorney General Edwin Meese, have also spoken out in favor of reform, including eliminating mandatory minimum sentences for non-violent offenses.

Refining the Law

Rather than a wholesale rejection of long prison terms, though, many of the mandatory minimum and repeat offender sentencing changes are refining laws to reserve the harshest punishment for violent or repeat criminals.

“Even as we’re seeing a nationwide movement to cut back on the most draconian mandatory minimums, it’s unlikely that we’ll see many of them taken off the books entirely,” said Douglas Berman, a Ohio State University law professor who specializes in sentencing law. “There will still be a draw toward mandating that folks who commit serious violent crimes serve a significant period of prison time.”

During the 1980s and 1990s, states passed a raft of tough-on-crime measures, including mandatory minimum sentencing, truth in sentencing laws, and three-strikes laws.  Partly as a result, the country’s prison population doubled from 1990 to 2010, to more than 1.5 million.

Prisoners released in 2009 spent an average of nine months more time in custody than prisoners released in 1990, according to a recent report from the Pew Center on the States. That extra time cost states more than $10 billion, more than half of which was attributable to non-violent offenders, according to the report.

Though some states were already rethinking their approach to corrections, the fiscal crisis accelerated the trend.  In South Carolina, the prison population tripled between 1978 and 2009, mostly with non-violent offenders, and prison spending increased nearly five times between 1983 and 2009.

“You just can’t afford to build your way out of that problem,” said South Carolina State Sen. Gerald Malloy, who chaired a committee to revise the state’s criminal justice system.

The state in 2010 passed a broad reform package that eliminated mandatory minimum sentencing for some drug crimes, reduced sentences for some repeat drug offenders, and expanded parole eligibility, among other changes.

At the same time, the law added crimes to the state’s list of “violent crimes,” which carry lengthy penalties, and mandated life without parole for some violent crimes if the defendant was already convicted of two other serious crimes.

“We made a decision that violent offenders and career criminals belong behind bars and belong there for a long time,” Malloy said in a recent phone interview with The Crime Report.  “But for the lower level offenders that are filling up the state’s prisons, there are more effective approaches.”

Not every state is moving towards sentencing reform.

In Florida, which has a three-strikes law and a mandatory sentencing scheme for gun crimes, Gov. Rick Scott earlier this year vetoed a bill that would have diverted some nonviolent drug offenders into treatment.  The legislature in Massachusetts is also considering enacting a new three-strikes law.

And, other than reevaluating mandatory sentences for drug crimes, most states still favor long prison terms, said Barry Krisberg, Director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at the University of California, Berkeley School of Law.

“No one wants to fundamentally change sentencing laws, so we’re not,” he said.  “We’re just working around them.”

The upcoming vote on California’s three-strikes law, the toughest and most used in the country, and another proposed initiative to ban the state’s death penalty, may be a bellwether for other sentencing reform efforts.

“There’s an enduring uncertainty as to what the public really thinks and whether and how politicians can convince the public to be smart on crime,” Berman said.  “If both these measures lose and lose big, it will be dangerously easy to say that, even in California, you can’t see smart on crime winning over tough on crime.

“But if they win big, it becomes a very potent talking point for reform.”

Infrequent Use

Outside a handful of states, such as California, Georgia and Florida, three-strikes laws are infrequently used, studies have shown.  Most states already had laws that required enhanced penalties for repeat felons and most three-strikes laws limited the third strike to a violent felony.

The laws “were more of a symbolic gesture to demonstrate they were tough on crime,” said Jennifer Walsh, a professor at Azusa Pacific University who studies three-strikes laws.

California’s law mandates a sentence of 25-years to life for any felony if a defendant has two prior convictions for a violent or “serious” felony as defined under state law, which includes crimes such as burglary.

As of September 2011, about 8,800 inmates were in prison under the three-strikes provision; of those, more than 3,000 were convicted of a non-violent crime.  An additional 32,000 prisoners were convicted under the law’s lesser-known second strike provision, which doubles sentences for those convicted of a prior violent or serious felony.

Though there have been a number of failed attempts to reform the law, there are reasons to think the current proposal may fare better with California voters. The Supreme Court in May 2011 found that the state’s overcrowded prisons violated the Eighth Amendment’s ban on cruel and unusual punishment, and ordered the state to reduce its prison population by more than 30,000 inmates. There are currently about 135,000 prisoners in California.

The proposed reform is also more modest than previous ballot initiatives.

Petition to Reconsider

It would reserve 25-to-life sentences to offenders convicted of a third felony that is violent or serious, unless any of the prior convictions were for certain crimes such as murder.  The law would also allow some current inmates convicted of a less serious third strike to petition for resentencing.  Advocates estimate that it would affect about 3,000 people currently in prison.

“This current reform is more narrowly tailored to target people we think are the most unjust and frankly unintended aspects of the three strikes law,” said Michael Romano, who heads the Three Strikes Clinic at Stanford Law School and who represents the NAACP, the primary sponsor of the reform initiative.

Opponents of the measure credit the current law with helping reduce California’s violent crime rate, which peaked in 1992.  They also argue that prosecutors and judges already have enough discretion under the current law, and that the harshest penalties under the law are seldom used.

“We need to be able to look at offenders in terms of their entire career and allow the punishment to fit the criminal instead of letting the punishment fit the crime,” said Mike Reynolds, the author of the initial three-strikes law, whose daughter was murdered in 1992 by a repeat offender.

The judge in Williams’ case found that Williams’ four prior burglary convictions and other misdemeanor convictions, combined with the fact that he had already twice served time in prison, justified the long prison sentence.  A state appellate court, upholding the sentence, also noted that Williams engaged in a pattern of criminal activity and had not been deterred by his prior prison terms.  The federal courts turned down Williams’s appeals.

Even without the proposed initiative, Romano and his students have won early release for a number of three-strikes inmates convicted of non-violent crimes, including Charles Ramirez.

Ramirez, who had two prior burglary convictions, was given a 25-to-life sentence in 1996 for stealing a radio from a van.  He was released in 2009.

“If someone is violent, I agree that person should get that time,” Ramirez said in a recent phone interview.  “They should have given me what I got coming, but not a life sentence. I did almost 14 years.  That’s a lot of time just for a radio.”

Scott Michels is a freelance writer and a lawyer, based in New York City. He welcomes comments from readers.

By Scott Michels

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