Prison Law Blog

Sara Mayeux

Posts Tagged ‘three strikes

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.

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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.

What Will California’s Election Results Mean for Prison Reform?

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Jerry Brown, once the youngest governor in California’s history, will now take office as its oldest. For AG, the Golden State will have Steve Cooley, who’s called for reforming California’s three strikes law (sort of) while overseeing a DA’s office that sent more felons to death row than all of Texas last year. What might all of this mean for prison reform? Rather than speculate myself, I’d actually be curious to hear from readers in comments or via e-mail. UPDATE: When I wrote this post last night the Los Angeles Times had called the AG race for Cooley, but now it looks like Kamala Harris may win by a hair. Stay tuned!

In the meantime, I thought readers might be interested or at least amused in some reminiscences of the (first) Jerry Brown administration. These are from a 1988 oral history given by John Nejedly, former state senator and an architect of California’s determinate sentencing regime, which Brown signed into law (PDF link):

There were a lot of things about him, but if you could show something that was socially wrong, had a fundamental social inconsistency, you could get his attention. He was pretty close to the Jesuits, so I got some people in the Jesuit hierarchy to talk to him about it [prisons], because I went with them over to the same prison on Thursday nights, when we would go over there, and they called him, told him what the problems were. It was a minister, you know, that put that resolution of the Attica thing into place, and he called him …

Not for nothing did they call him Governor Moonbeam:

But it was a much more fluid, flexible, unmanaged system with Brown than it was with Reagan. You could pretty well predict Reagan. But Brown. *** Especially when he got into that screwy presidential campaign; that was bonkers. He was all over the place and he had a good looking dolly going over to Africa with him and he flips from that scene and he goes to New Hampshire and screws that one up. and Illinois. God, it was bananas.

But I liked the guy! If I met him today, I’d invite him to go on a hike. He’s the kind of a person you’d go on a hike with.

Written by sara

November 3, 2010 at 8:58 am

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