A Life Sentence for 1.2 Grams of Crack?

In his book Cruel Justice: Three Strikes and the Politics of Crime in America’s Golden State, Joe Domanick tells the story of Tommy Lee Fryman:

In 1998, Fryman was arrested in San Jose for being under the influence of cocaine. Tommy Lee was strip-searched when the cops found 1.2 grams of crack cocaine “hidden between his buttocks.” He pleaded guilty to possession of cocaine base, and because of nine prior felony convictions “alleged as strikes,” was given a three strikes sentence of twenty-five-to-life.

Here’s the kicker: If Tommy Lee Fryman had been arrested just a few years later, he would not have served a day in prison. In November 2000 California voters passed Prop. 36, which mandates treatment, not hard time, for simple-possession drug charges. At that time, California was incarcerating 36,000 men and women a year for simple possession — the highest number in the nation both in absolute and per capita terms. Of that number, about 580 people, like Fryman, had been sentenced to 25-to-life sentences for simple drug possession under the 1994 Three Strikes Law. (The close proximity in time of Three Strikes and Prop. 36 is, itself, a fairly good metric of the incoherence of California criminal justice policy.)

Fryman’s federal habeas case was argued at the Ninth Circuit this week by two students from Stanford Law School’s Three Strikes Project. Fryman’s argument is, first, that the sentence is cruel and unusual under the Eighth Amendment, and second, that the sentence violates the Equal Protection Clause, given that voters approved Prop. 36 while Fryman’s state appeals were still pending (and thus, i.e., that Fryman is being treated differently before the law than similarly situated offenders). You can listen to the oral argument at this link (the case name is Fryman v. Duncan).

Although I don’t normally cover sentencing law, this case and others like it help to explain today’s prison conditions. There is a generation or more of Californians — those who were of crime-committing-age between 1980 and 2000 — who racked up criminal records and prison stints on the basis of draconian drug sentencing practices that California voters have since rejected. A lot of those men and women are still in the system or still being hurt by the system, whether because prison ruined their life, or because they got into further trouble once labeled a criminal, or because they got out of prison and finding few resources to help them went back to using drugs, or whatever reason. Or because like Fryman, they are literally still in prison because they were caught up both in the drug war and the Three Strikes Law. And the same story could be told about New York and the Rockefeller drug laws, and many other states, and certainly about the federal system. Sentencing reform for the future is an important first step, but the roots of mass incarceration can’t be pulled out so neatly — ultimately some form of retrospective justice will also be needed, I think. Imagine what additional challenges your life might have included if you’d been sent to prison 10 or 20 years ago, and now consider that for millions of Americans, that happened.

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Is 16 Years in Prison for Attempted Theft of 3 Disposable Cameras: a) Humane? b) Just? c) A Good Use of State Resources? Discuss.

From time to time I receive emails from Stanford Law School announcing the victories of its various student legal clinics. Normally, I don’t pay much attention since I get so many listserv-type emails. Every once in a while one jumps out at me. For instance, yesterday I received such an email with the following subject line:

Client Freed after serving 16 years for Trying to Steal Three Disposable Cameras

The client, who had initially been sentenced to 25-to-life in 1995, was represented by Stanford’s Three Strikes Project, which you can read more about here.

Upcoming Event: Prison Reproductive Justice Panel at Stanford’s Shaking the Foundations Conference

This year’s edition of the annual Shaking the Foundations conference, put on by students at Stanford Law School, will feature a panel entitled “Locked Up and Locked Out: Reproductive Rights of Women in Prison.” The panel will be Saturday, October 15, featuring the following speakers:

• Kim Buchanan, Associate Professor of Law, University of Southern California, Gould School of Law
• Sara Ainsworth, Senior Legal & Legislative Counsel, Legal Voice
• Amy Fettig, Adjunct Professor, Georgetown Law School/Staff Counsel, ACLU National Prison Project
• Sally Lieber, Former State Assembly Member, State of California
• Carolyn Sufrin, M.D., Clinical Faculty, Department of Obstetrics and Gynecology, University of California, San Francisco/Women’s Health Specialist, San Francisco Department of Public Health/Jail Health Services

Other panels of possible interest to readers will cover immigration reform, wrongful convictions, healthcare for transgender people, and more. The cost for the two-day conference is $5 for students, $20 for other attendees, and includes three catered meals. You can register online at this link.

The Politics of Three Strikes and the California AG Race

The Economist has been on a roll lately with coverage of the American criminal justice system. Today the magazine published this article on California’s three strikes law (the appeal described was litigated by Emily Galvin, a student in Stanford Law School’s Criminal Defense Clinic). As the article highlights, this year’s California AG race is shaping up to be interesting. San Francisco DA Kamala Harris has not won many fans statewide with her strict no-death-penalty policy, so she’ll seek to prove her tough-on-crime bona fides, in part, by muting her criticisms of the three strikes law. Her Republican opponent, Los Angeles DA Steve Cooley, has more leeway to be vocal:

… Steve Cooley has other ideas about Three Strikes, which he values as a “powerful recidivist tool” but also considers “draconian”. Mr Cooley has become the first DA in California to have a written policy not to invoke the three-strikes law when neither the current crime nor the previous strikes are violent or serious. … As a conservative, he need not be as paranoid as his Democratic rival about being called soft on crime. The son of an FBI agent and a proponent of the death penalty, Mr Cooley can point out the obvious—that the law is often egregiously unjust—and still be considered tough.

With or without a written policy, the San Francisco DA’s office has historically charged far fewer three strikes cases than other counties. But Kamala Harris will certainly not emphasize that in her campaign.

Is the U.S. Law School Curriculum (Partly) to Blame for Mass Incarceration?

Let’s say you want to learn more about the recent history of mass incarceration in the United States, but you only have time for one book. Although there are many excellent candidates, one that I’d recommend is The Prison and the Gallows, by Marie Gottschalk (Cambridge UP, 2006). Gottschalk synthesizes a lot of scholarly literature to provide a one-volume chronicle of the explosive growth of the U.S. prison population in the past 30 years. She seeks to explain the uniquely American social and political forces that enabled this development, juxtaposing the U.S. against all the other Western nations which did not experience similar growth in the penal system. I found particularly useful Gottschalk’s chapter on why the rhetoric of “victims’ rights” gained such political force in the United States as a justification for passing harsher sentencing laws. Short answer: Our tradition of prosecutorial discretion, combined with federalism. (Longer but still oversimplified answer below.)

On top of those factors, Gottschalk argues, “Differences in the legal training, professional norms, and career paths of prosecutors, judges, and other judicial administrators are another reason why the U.S. criminal justice system has been more vulnerable to political winds whipped up by politicians and social movements” (98). I thought I’d highlight one passage in which Gottschalk compares German and American legal training:

Call for Submissions: Stanford Law & Policy Review Symposium on “Prison Reform”

The Stanford Law & Policy Review will host a symposium on the topic of “Prison Reform” during the 2010-11 academic year. Submissions are invited through August 15, 2010 — details here, as well as a long list of suggested topics. Here’s some information from SLPR about their vision for the symposium:

Through this symposium, we plan to explore the many ways that prison management has come under increased pressure during this time of economic hardship and increased judicial activism. While mass incarceration and prison release have been frequently addressed in the news lately, we would like to explore more deeply how decreasing budgets and judicial activism have affected the management of prisoners inside the system, especially in terms of both reform pressures as well as opportunities for experimentation.

Note: Though I’m a student at Stanford, I’m not in any way involved with this publication. I’m just passing along this announcement to my readers at their request, but if you have any further questions you should contact SLPR directly.

In Today’s Elite Supreme Court Bar, Is There a Place for Jailhouse Lawyers?

I was encouraged to read New York Times legal correspondent Adam Liptak’s latest Sidebar column: “A Mediocre Criminal, but an Unmatched Jailhouse Lawyer.” The column tells the story of 34-year-old Shon Hopwood, who transformed himself into something of a legal expert while doing time in federal prison for a failed bank robbery:

He prepared his first petition for certiorari — a request that the Supreme Court hear a case — for a fellow inmate on a prison typewriter in 2002. Since Mr. Hopwood was not a lawyer, the only name on the brief was that of the other prisoner, John Fellers.

The court received 7,209 petitions that year from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v. United States.

“It was probably one of the best cert. petitions I have ever read,” said Seth P. Waxman, a former United States solicitor general who has argued more than 50 cases in the Supreme Court. “It was just terrific.”

Now out of prison, Hopwood is hoping to apply to law school for next year, and fittingly enough, has a job with Cockle Printing, an Omaha-based company that specializes in printing… Supreme Court briefs.

Though the story is heartwarming enough on its own, I thought it was particularly striking that Hopwood achieved this feat during a historical moment when a new, high-powered Supreme Court elite was in the process of consolidating its dominance over the highest levels of appellate advocacy. It’s not just that Hopwood achieved something virtually no other jailhouse lawyer can boast, or even that he achieved something that few lawyers, period, can boast; it’s that he achieved something that increasingly fewer and fewer lawyers can boast. In an extended post after the jump, I’ll provide some historical background on the rise over the past 25 years or so of a new, elite Supreme Court bar, and offer some (sketchy) reflections on the possible implications of this development for jailhouse lawyering. (The key scholarly articles for understanding this development, and my main sources for what follows, have been written by Georgetown professor Richard Lazarus, as well as the elite Supreme Court litigator extraordinaire, and once-and-future Chief Justice, John Roberts. Full citations available at the end of the post.)

Upcoming Event: The New Jim Crow

Stanford Law School will host Ohio State professor Michelle Alexander this Wednesday, Feb. 10, to discuss her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, 2010). Here’s the publisher’s blurb on the book:

As the United States celebrates the nation’s “triumph over race” with the election of Barack Obama, the majority of young black men in major American cities are locked behind bars or have been labeled felons for life. Although Jim Crow laws have been wiped off the books, an astounding percentage of the African American community remains trapped in a subordinate status—much like their grandparents before them.

In this incisive critique, former litigator-turned-legal-scholar Michelle Alexander provocatively argues that we have not ended racial caste in America: we have simply redesigned it. Alexander shows that, by targeting black men and decimating communities of color, the U.S. criminal justice system functions as a contemporary system of racial control, even as it formally adheres to the principle of color blindness. The New Jim Crow challenges the civil rights community—and all of us—to place mass incarceration at the forefront of a new movement for racial justice in America.

Upcoming Event: Three Perspectives on Race and Incarceration

This Thursday, Feb. 4, Stanford Law School will host a panel entitled “Three Perspectives on Race and Incarceration” (free and open to public with RSVP at link above):

Why are people of color—African American males in particular—grossly over-represented in prisons and in jails relative to the numbers in the U.S. population? What happens to them in prison? What happens when they get out? The purpose of this panel is to examine the causes and consequences of racial disparities in imprisonment from three different vantage points. Professor Steven Raphael will discuss the relationship between criminal justice policies and racial disparities in imprisonment. Filmmaker Tamara Perkins will discuss a new documentary she is developing which tells the stories of black men in San Quentin State Prison. Finally, Chief Ronald Davis will discuss a re-entry program he has developed in collaboration with Free At Last in East Palo Alto.