Bell Tolls For Three Strikes?

This is a major, if tentative, victory for criminal justice reform advocates.

California's three-strikes sentencing law suffered a blow Tuesday when a federal appeals court struck down as unconstitutional a 28-years-to-life sentence for a sex offender who failed to register with local police at the correct time of year.

The U.S. 9th Circuit Court of Appeals sent the case of Cecilio Gonzalez back to federal district court in Los Angeles for resentencing after finding his 2001 penalty constituted cruel and unusual punishment, which is prohibited by the 8th Amendment.

Gonzalez's harsh sentence was grossly disproportionate to his "entirely passive, harmless and technical violation of the registration law," the appeals court said.

This case represented the unintended consequence of three-strikes carried out to its most ridiculous extreme. 28 to life for registering, but not at the right time of year? Nuts. This isn't a crime in 11 states, and the maximum sentence allowed by customary law in California is three years.

In case the "tough on crime" absolutists start shieking about "activist liberal judges" overturning the will of the people, consider who wrote this opinion: Jay Bybee. Nominated by George W. Bush Jay Bybee. Writer of the fucking torture memo Jay Bybee. Even a guy who justified the torture of prisoners considers this cruel and unusual punishment. There is no indication whether or not Jerry Brown would carry this to an appeal, but considering the opinion of this very conservative jurist, I would imagine the US Supreme Court would at least potentially rule the same way, although they struck down a similar challenge to three strikes in 2003 on a 5-4 vote. Put it this way, I don't see Bybee as more conservative than Anthony Kennedy.

This does not invalidate three strikes entirely, but it certainly gives a ray of hope to those locked up for a minor third crime to challenge their sentencing. And it provides a framework to show how unjust and counter-productive these stringent mandatory sentences are. Three strikes is more of a symptom than the entire problem - the legislature has approved over 1,000 higher sentences in the past 30 years. But this is an important start, to end the tyranny of "tough on crime" absolutism that has contributed to busting the state budget and making this the worst state in the union when it comes to the corrections system.

Breaking Point

I've written a lot about the California prison crisis in the past, and based on the response both here and on Calitics, it's clear that there's a lot of apathy around the issue, combined with twinges of helplessness and the paralyzing recognition that there are no easy answers. It's the ultimate "out of sight, out of mind" situation, and as a result, we end up warehousing prisoners, "stacking them up like cordwood" and conveniently forgetting about what goes on behind bars.

Well, you no longer have to take my word for it. You can watch Ted Koppel's riveting two-hour documentary for the Discovery Channel, "Breaking Point," an exploration of life inside Solano State Prison in Vacaville, CA. And while you're at it, you can make 121 copies and send one to every member of the California Legislature and the Governor, so they can witness the fruits of their failed leadership.

Designed to accommodate no more than 100,000 inmates, California’s prisons now hold 173,000, each at an annual cost of $43,000. How did things get so out of control? Mandatory sentencing is a big part of the answer. When California voters threw their support behind a get-tough-on-crime bill that came to be known as "Three Strikes and You’re Out," the state prison system filled up and is now overflowing.

While shooting, Koppel spent a number of days among the general population at Solano. His reporting focuses on the inhabitants of H Dorm, where inmates are stacked in triple-deck bunk beds on an old indoor basketball court. Correctional officers are so badly outnumbered that prison officials keep inmates segregated by race and gang affiliation in a desperate effort to avoid friction and maintain control. Even so, Solano still sees three to four race riots a year. Using smuggled cell phones, gang bosses continue running criminal operations on the street from behind prison walls. At the same time, they’re running drug and prostitution rings inside Solano.

By the way, that segregation is scheduled to end, by court order, come January, and you can expect the race wars to explode (there are already 3-4 large riots annually in a place like Solano as it is). The corrections officers have, out of convenience, allowed race to govern every aspect of prison life, and shocking the system through integration, just like it did within civil society in the 1950s, is going to cause an explosion. In the words of one inmate, "Somebody's son's gonna die." This is going to get worse, much worse. And the root cause of all of it is the overcrowding issue, which nobody wants to fully address.

The "stack them up like cordwood" line comes from Mark Klaas, whose daughter Polly's brutal murder ushered in the three strikes sentencing law, which is now rarely being used to capture the kind of violent offenders like the ones involved in her crime. 2/3 of all of the inmates at Solano as a result of the three strikes law struck out on a nonviolent offense. And these are precisely the inmates who are clogging the system. Every corrections officer interviewed agreed that tough sentencing laws like three strikes aren't working. And even Mark Klaas, whose "cordwood" line represented his earlier state of mind, now believes that we're "not going to solve the crime problem by building more prisons." Only rehabilitation, treatment, and prevention can truly address this crisis. And here is where the California penal system comes up woefully short.

While 85% of the population at Solano enters prison with either a prior or current substance abuse problem, only 10% will be able to enter the drug treatment and counseling program; there simply aren't enough spaces. Only 12% engage in some kind of vocational training, acquiring skills that can potentially be put to good use on the outside. In fact, the best vocational training in California prisons these days is for crime itself. "This is a school where you can learn all kinds of crime," says one official, accounting for the nation's highest recidivism rate. And so once their sentences expire, we send these ex-cons off into the world with $200 and a bus ticket, with no skills, no treatment, no job, in many cases no place to live, largely worse off than they were when they entered prison, and we're surprised when they return?

Koppel's program does an excellent job of revealing life in the overcrowded prison complex, where even solitary confinement is double occupancy. Building more prisons so they can simply be housed makes no sense whatsoever. In the short term, overcrowded county jails will transfer their prisoners up to the state level. In the long term, more will filter into the system every day without addressing the root causes. Building costs money, too, money that won't go to rehabilitation and vocational training and drug treatment and additional officers (who are completely outmanned). "Nonviolent criminals should not be in this prison." Those words of wisdom come from a PRISONER.

The documentary is a bit short on solutions, making no mention of the proposed independent sentencing commission that fell flat in this year's legislative session. But it expertly displays the crisis at hand. I urge you to watch this important piece of work. And at the Discovery Channel website, you can take a virtual tour of Solano, see portraits of some of the inmates, and get some more quick facts about prison life. This is a responsibility from which citizens and our so-called leaders in Sacramento must not shrink.