Prison Law Blog

Sara Mayeux

Posts Tagged ‘three strikes law

Web (& Not-Just-Web!) Resources: ACLU Mass Incarceration Initiative

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Readers of this blog are likely familiar with the ACLU’s National Prison Project, which works to protect the rights of prisoners as well as pretrial and immigration detainees nationwide. Now, the ACLU has embarked upon a related initiative, the Safe Communities, Fair Sentences project, which will advocate against mass incarceration. Bookmark this site for a weekly dose of “overincarceration” news.

At the ACSblog, ACLU attorney Inimai Chettler asks “Just What Is So Wrong with the War on Drugs?”:

So what’s the verdict 40 years later? Have we won the war on drugs? Quite simply, no. From a public safety perspective, the war has been completely ineffective at stemming the supply or use of drugs in this country. From a cost perspective, it’s been horrific – with a whopping $1 trillion price tag thus far and an unimaginably higher toll in lives and families lost to prison. In terms of fairness, it has been a total bust as well. The effect on communities of color has been astonishingly tragic: there are more African-Americans under the control of prison and corrections departments today than were ever enslaved by this country. Even the current head of the Office of National Drug Control Policy, Gil Kerlikowske, and more recently the Global Commission on Drug Policy, have announced that the drug war has been an abject disaster.

According to the federal government, drugs are increasingly widely available and the rates of drug use are actually up by 10 percent since the start of the war on drugs. Drug supply and use have increased despite the2.3 million people languishing in prisons – about 25 percent of whom are locked up for drug violations. If we look at just federal prisons, things are even worse, with nearly half of those in prison locked up for drug crimes.

When we incarcerate drug offenders, they stay locked up for insanely lengthy periods of time – and often forever. We increasingly sentence them to life in prison under three-strikes-and-you’re-outlaws for petty drug crimes. And disappointingly, our Supreme Court has upheld the constitutionality of laws imposing disproportionate mandatory sentences of life without parole for simple possession of drugs.

A Life Sentence for 1.2 Grams of Crack?

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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.

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

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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.

The Politics of Three Strikes and the California AG Race

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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 Meg Whitman’s Criminal Justice Platform a Joke?

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Triple bunks at the California State Prison, Los Angeles, in 2006 (courtesy CDCR)

Well, the California gubernatorial primary results are in and Meg Whitman’s officially the GOP nominee. So I thought I’d point out that Whitman may have the worst criminal justice platform of any political candidate I’ve ever seen, in any election at any level. OK, maybe that’s hyperbolic, but seriously: Her platform is terrible. And I say this not because I disagree with the policy proposals — actually, it’s hard to find any realistic policy proposals amidst the rhetoric. Rather, I say this because from just about any policy perspective, Whitman’s platform is so removed from any plausible account of reality, and so callously dismissive of the needs of California inmates (who, after all, are Californians too), and so opportunistically manipulative of the rhetoric of “victims’ rights,” as to be insulting.

Let’s review: California’s 33 prisons are so overcrowded that, by one estimate, an inmate was dying needlessly every 6-7 days a few years ago, and the former head of corrections for the state of Texas — hardly a place that “coddles criminals” — has described California’s prison conditions as “truly appalling.”

Meanwhile, Whitman offers a halfhearted remix of “tough-on-crime” talking points from the past 25 years that has literally nothing to do with the unique and urgent problems facing California’s prison system. Read the rest of this entry »

Written by sara

June 9, 2010 at 1:38 pm

Justice Kennedy: For the Three Strikes Law Before He Was Against It?

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Earlier this month, Justice Kennedy of the U.S. Supreme Court spoke out against the California’s Three Strikes Law and the influence of the prison guard union over Golden State correctional policy. In an editorial today, the New York Times points out that when Justice Kennedy had the chance to overturn the law as unconstitutional, he passed:

Under the three-strikes law, a man named Gary Ewing was sentenced to 25 years to life for shoplifting three golf clubs from a golf pro shop.

Mr. Ewing challenged his sentence before the Supreme Court as a violation of the Eighth Amendment prohibition on cruel and unusual punishment. By a 5-to-4 vote, with Justice Kennedy in the majority, the court rejected the challenge.

P.S. I know, I know, my headline is a bit glib. Of course, holding that a law is constitutional does not necessarily mean you think the law is swell. And, Doug Berman at Sentencing Law & Policy points out problems with the NYT editorial, namely its “inane and pernicious … assertion that ‘[m]uch of the blame’ for California’s three-strikes law ‘lies with the Supreme Court.'”

P.P.S. Speaking of the Three Strikes Law, check out this interesting post over at California Corrections Crisis on the law’s historical antecedents.

Written by sara

February 16, 2010 at 10:22 am

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