Marisa Lagos, Chronicle Staff Writer
Seventeen years after California's "three strikes" law was sold to the public as a way to keep rapists, child molesters and murderers behind bars, some criminal justice experts are pushing for an overhaul of the sentencing mandate they say is long overdue.
They say the law has driven up incarceration costs by billions, contributed to California's prison crowding and resulted in harsh sentences that did not fit the crimes or circumstances.
To these critics, 42-year-old Shane Taylor represents everything that is wrong with three strikes.
At age 27, Taylor was drinking beer with friends in a car parked at a lookout spot in Tulare County when police pulled up to see if anyone was underage. An officer noticed a small bag poking out of Taylor's wallet that contained methamphetamine, about a tenth of a sugar packet's worth.
Had Taylor's record been clean, he might have landed in county jail for a few years. But combined with two prior convictions for burglaries he committed at age 19, Taylor received the most severe punishment under the state's three-strikes law: 25 years to life.
Now, 15 years after Taylor was locked up at the Correctional Training Facility in Soledad, the prosecuting attorney and sentencing judge say the punishment was too harsh.
"I made a mistake," retired Tulare County Judge Howard Broadman said in a recent phone interview. "It's too much time."
An appeal of Taylor's sentence is pending with the California Supreme Court. The appeal was filed after Broadman called a Stanford University professor who specializes in three-strikes cases and expressed remorse, saying he would not have handed down the long prison term had he better understood the three-strikes law, which had been in effect just two years.
"This guy should not be in prison this long," Broadman said. "It bothered me that (he was) such a low-level offender. ... When you are in a position of authority I was in at the time, you can make mistakes and it costs the state too much money, and it costs the offender and their family. It's wrong."
Taylor's lawyers say their client's story is not rare, and that the sentencing mandate has led to numerous other troubling cases.
They and other critics say it's time to change the law, particularly because California faces chronic deficits and a court order to reduce its prison population by 33,000 over the next two years.
Polly Klaas influence
The Legislature and the state's voters overwhelmingly approved three strikes a year after repeat felon Richard Allen Davis broke into a Petaluma home and abducted 12-year-old Polly Klaas at knifepoint from her bedroom in 1993. Klaas, who was having a slumber party with two friends at the time of her abduction, was found nine weeks later, miles away, in a shallow grave.
Polly's kidnapping and murder outraged the nation when it was revealed that Davis had a long criminal history and had been wanted on a parole violation. The California law, intended to keep habitual violent offenders off the streets, became one of the harshest sentencing laws in the nation.
The law requires enhanced punishment for repeat offenders: Second strikers - those with a previous serious or violent felony who are convicted of a second felony - face double the normal sentence. Third strikers - those with at least two previous violent or serious felonies who are convicted of a new felony - can be given sentences of 25 years to life, regardless of whether the third crime is violent or serious.
Nearly two decades later, 29 percent, about 41,100, of the state's approximately 143,500 prison inmates are second and third strikers.
Crime rates fall
Supporters say it's crucial to lock up career criminals even if their latest crime is not violent because a small minority of offenders commit the vast majority of crimes. They say the three-strikes law is sparingly used by prosecutors and has been a major factor in reducing crime rates, which peaked in 1992 and have been declining since.
"It does work," said Mike Reynolds, the law's author whose 18-year-old daughter was murdered in 1992 by a drug addict who had recently been released from prison. "We have dropped the crime rate in half in California - not only reducing victims, but reducing the number of criminals."
Critics of three strikes say that crime rates began falling around the nation before the law passed, and that states without similar laws have commensurate or even deeper declines in crime.
"Three strikes passed during a period of time when California and the nation as a whole was swept up in panic over crime and super predator arguments - every politician, left and right, felt the need to embrace something to get away from the freight train of public fear about crime," said Barry Krisberg, a criminal justice expert at UC Berkeley. "Three strikes never made sense - it was never a good law or policy from the inception. ... it does not explain the sweeping, dramatic declines in crime we've seen across the nation."
For example, Florida and New York had the same prison population 11 years ago, around 70,000 inmates. As Florida added 30,000 offenders to its prisons, New York decreased its incarcerated population by about 10,000 - and yet both states saw their crime rates fall by about the same amount, with New York experiencing a slightly larger decline.
But Kent Scheidegger, legal director of the Criminal Justice legal Foundation in Sacramento - which advocates fewer rights for criminals - said crime is too complex to credit or blame just one law for overall trends. He says different studies on three strikes' impacts have come to vastly different conclusions.
"There is a limited ability in these kinds of studies to capture reality," Scheidegger said. "You can't do experiments in this area, and you can't control variables. All you can do is observe and try to find correlations."
A May 2010 report by the California State Auditor concluded that those now in prison under three strikes will cost the state a total of $19.2 billion. The report also found that about 53 percent of those inmates are serving a sentence for a non-serious, nonviolent crime.
Mike Males, a senior research fellow at the Center on Juvenile and Criminal Justice in San Francisco, which advocates alternatives to incarceration, estimates that imprisoning a person for 25 years in California costs taxpayers, on average, around $1.1 million. A life sentence could reach $1.8 million, "even without adding the higher medical costs of aged prisoners," according to Males.
Still, the law is not costing taxpayers nearly as much as some had predicted when it was passed, because the number of three-strikes cases brought by prosecutors declined after the first few years. Supporters of the law say this proves prosecutors use discretion in choosing when to apply the law, and say that only about 250 people are sentenced under the law each year.
Founded by Michael Romano, a San Francisco criminal appeals and civil rights lawyer who calls three strikes the "worst criminal law in the country," the project represents defendants charged under three strikes with minor, nonviolent felonies. The appeals are overseen by Romano but led by law students, including Susannah Karlsson, who is representing Taylor.
Critics of three strikes say that crime rates began falling around the nation before the law passed, and that states without similar laws have commensurate or even deeper declines in crime.
"Three strikes passed during a period of time when California and the nation as a whole was swept up in panic over crime and super predator arguments - every politician, left and right, felt the need to embrace something to get away from the freight train of public fear about crime," said Barry Krisberg, a criminal justice expert at UC Berkeley. "Three strikes never made sense - it was never a good law or policy from the inception. ... it does not explain the sweeping, dramatic declines in crime we've seen across the nation."
Fewer inmates
In general, research shows that higher incarceration rates do not necessarily lead to less crime, said Adam Gelb, director of the public safety performance project at the Pew Center on the States. Pew researchers have found that all 19 states that reduced the number of people in prison over the past decade have simultaneously seen their crime rates decline.For example, Florida and New York had the same prison population 11 years ago, around 70,000 inmates. As Florida added 30,000 offenders to its prisons, New York decreased its incarcerated population by about 10,000 - and yet both states saw their crime rates fall by about the same amount, with New York experiencing a slightly larger decline.
But Kent Scheidegger, legal director of the Criminal Justice legal Foundation in Sacramento - which advocates fewer rights for criminals - said crime is too complex to credit or blame just one law for overall trends. He says different studies on three strikes' impacts have come to vastly different conclusions.
"There is a limited ability in these kinds of studies to capture reality," Scheidegger said. "You can't do experiments in this area, and you can't control variables. All you can do is observe and try to find correlations."
Incarceration costs
Critics of three strikes note that the law is also costly - and that the bulk of the expense is due to second strikers, who account for 79 percent, or about 32,400, of the 41,100 people in prison under the law.A May 2010 report by the California State Auditor concluded that those now in prison under three strikes will cost the state a total of $19.2 billion. The report also found that about 53 percent of those inmates are serving a sentence for a non-serious, nonviolent crime.
Mike Males, a senior research fellow at the Center on Juvenile and Criminal Justice in San Francisco, which advocates alternatives to incarceration, estimates that imprisoning a person for 25 years in California costs taxpayers, on average, around $1.1 million. A life sentence could reach $1.8 million, "even without adding the higher medical costs of aged prisoners," according to Males.
Still, the law is not costing taxpayers nearly as much as some had predicted when it was passed, because the number of three-strikes cases brought by prosecutors declined after the first few years. Supporters of the law say this proves prosecutors use discretion in choosing when to apply the law, and say that only about 250 people are sentenced under the law each year.
Rethinking sentence
Taylor's lawyers at the Three Strikes Project at Stanford University say offenders are still unfairly sentenced under the law, including in the 20 cases where they have succeeded in getting an inmate's sentence reduced.Founded by Michael Romano, a San Francisco criminal appeals and civil rights lawyer who calls three strikes the "worst criminal law in the country," the project represents defendants charged under three strikes with minor, nonviolent felonies. The appeals are overseen by Romano but led by law students, including Susannah Karlsson, who is representing Taylor.
Taylor's appeal is not a challenge to his conviction but rather his sentence, based on the argument that he never got an opportunity to present complete evidence about his personal and criminal history - and that if he had, he would not have received a 25-years-to-life sentence.
Just before Taylor was sentenced, the California Supreme Court ruled that judges can shorten a defendant's sentence by disregarding a prior strike if it is in the interest of justice. Other three-strikes challenges have resulted in rulings mandating that a court consider a defendant's character, background and other factors when it hands down a three-strikes sentence.
But Broadman, the judge in Taylor's case, said in a declaration to the court last year that he was never aware of Taylor's history: That Taylor was the product of an affair between his married, prostitute mother and a physically abusive drug addict; that he began using drugs at age 11, sometimes with his mother; that he lived in an unstable home; and that his drug-addicted brother - his closest family member - was slain when Taylor was serving his first prison term.
"Had I been able to consider even some of this evidence, my sentencing decision would have been different," Broadman wrote in his May 2010 declaration to the court in support of the appeal. "I would have dismissed at least one prior strike, which means Mr. Taylor would have served a maximum of eight years as a second striker."
Three-strikes supporters note that most previous attempts to change the law have failed, including voters' rejection in 2004 of Proposition 66, which would have limited three-strikes convictions to violent or serious felonies.
"If somebody wants to propose reforms to three strikes, I would urge them to use restraint and not go overboard,"
Scheidegger said. "I think overall, it has been a beneficial law. There have been a few cases where it probably shouldn't have been applied, and some of those cases have been overturned."
Taylor's lawyers argue that judges should not have the discretion to sentence a nonviolent offender to prison for life - and prosecutors should not be able to pursue such sentences either.
"The thing that jumps out is how incredibly wasteful a life sentence is for such a ridiculous offense," Karlsson said, calling Taylor "a poignant example of everything that could and did go wrong."
Just before Taylor was sentenced, the California Supreme Court ruled that judges can shorten a defendant's sentence by disregarding a prior strike if it is in the interest of justice. Other three-strikes challenges have resulted in rulings mandating that a court consider a defendant's character, background and other factors when it hands down a three-strikes sentence.
But Broadman, the judge in Taylor's case, said in a declaration to the court last year that he was never aware of Taylor's history: That Taylor was the product of an affair between his married, prostitute mother and a physically abusive drug addict; that he began using drugs at age 11, sometimes with his mother; that he lived in an unstable home; and that his drug-addicted brother - his closest family member - was slain when Taylor was serving his first prison term.
"Had I been able to consider even some of this evidence, my sentencing decision would have been different," Broadman wrote in his May 2010 declaration to the court in support of the appeal. "I would have dismissed at least one prior strike, which means Mr. Taylor would have served a maximum of eight years as a second striker."
Three-strikes supporters note that most previous attempts to change the law have failed, including voters' rejection in 2004 of Proposition 66, which would have limited three-strikes convictions to violent or serious felonies.
"If somebody wants to propose reforms to three strikes, I would urge them to use restraint and not go overboard,"
Scheidegger said. "I think overall, it has been a beneficial law. There have been a few cases where it probably shouldn't have been applied, and some of those cases have been overturned."
Taylor's lawyers argue that judges should not have the discretion to sentence a nonviolent offender to prison for life - and prosecutors should not be able to pursue such sentences either.
"The thing that jumps out is how incredibly wasteful a life sentence is for such a ridiculous offense," Karlsson said, calling Taylor "a poignant example of everything that could and did go wrong."
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