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Cruel and Unusual Punishment: The Shame Of Three Strikes Laws

Publication Date: 
March 27, 2013
Rolling Stone - Politics
Matt Taibbi

Professor David Mills and Michael Romano, director of the Three Strikes Project, spoke with Rolling Stone's Matt Taibbi about memorable cases that motivate the project's mission and their plans to reform Three Strikes to make justice a matter of fairness.

On July 15th, 1995, in the quiet Southern California city of Whittier, a 33-year-old black man named Curtis Wilkerson got up from a booth at McDonald's, walked into a nearby mall and, within the space of two hours, turned himself into the unluckiest man on Earth. "I was supposed to be waiting there while my girlfriend was at the beauty salon," he says.

So he waited. And waited. After a while, he paged her. "She was like, 'I need another hour,'" he says. "So I was like, 'Baby, I'm going to the mall.'"


Wallace was such an incompetent thief that he was still sitting in the passenger seat of the car by the time police arrived. He went to court and got 25 years to life. In prison, Wallace immediately became a target. He was sexually and physically attacked numerous times – there's an incident in his file involving an inmate who told him, "Motherfucker, I'll kill you if you don't let me go up in you." He was switched to protective custody, and over the years he has suffered from seizures and developed severe back problems (forcing him to walk with a cane) and end-stage renal disease (leading to dialysis treatments three times a week). And even months after California voters chose to reform the law, the state still won't agree to release him. "He's a guy who's literally dying," says Michael Romano, director of Stanford's Three Strikes program and a key figure in the effort to reform the law, "and he's still inside."


More than a decade later, Broadman had an attack of conscience and called Romano at Stanford. "I'm a conservative, tough-on-crime kind of guy," he later explained, but "Shane Taylor was a mistake." Broadman wrote a declaration on behalf of Taylor, supporting his petition for release. But Taylor is still in jail, three full years after the judge had his come-to-Jesus moment. When I spoke to Taylor by phone from Soledad correctional facility, the dominant emotion in his voice was sheer amazement. "It's baffling to me that I'm still in here," he says. "Even the judge says he's done me wrong."


Where some saw Three Strikes as a moral outrage, others seized on the financial burdens. Conceived as a way to keep child molesters in jail for life, Three Strikes more often became the world's most expensive and pointlessly repressive homeless-care program. It costs the state about $50,000 per year to care for every prisoner, even more when the inmate is physically or mentally disabled – and some 40 percent of three-strikers are either mentally retarded or mentally ill. "Homeless guys on drugs, that was your typical third-striker," says Romano. "And not that the money is the issue, but you could send hundreds of deserving people to college for the amount of money we were spending."


Around this same time, Romano, a Stanford Law grad who was clerking for a federal judge in Seattle, came across a pair of California cases that disturbed him greatly. One involved a Mexican immigrant sent to prison for life for taking the written portion of a DMV exam for a cousin who didn't speak English. In the other, a man named Willie Joseph received a life sentence after helping an undercover policeman set up a $5 crack deal. "That case stuck with me," says the bespectacled, quick-witted Romano. "Willie didn't hurt anybody in those offenses."

Romano eventually left his clerking job and returned to Stanford Law, with the idea of doing something about Three Strikes. There, he met up with professor David Mills, senior lecturer at the school, who was in the process of founding Stanford's renowned clinical-education program, in which law students do active work in multiple disciplines – everything from Supreme Court litigation to prosecuting criminal cases. Mills is a man of big plans and big ideas, a sort of entrepreneurial intellectual who not only co-chairs the NAACP legal-defense­ fund but has also built several successful private businesses in the financial sector. Like Romano, Mills had hated Three Strikes from the start. But he also knew that, in the age of mass media and the sound bite, fixing the law would be a heavy lift. "It's very easy to say, 'Three strikes and you're out,'" he says. "It's a lot harder to say, 'Well, wait a minute – do you mean three strikes, or do you mean three serious strikes? And what do you mean by "serious"?'"

Mills, Romano and Stanford decided to put together a Three Strikes program as part of the university's clinical curriculum, the idea being that the school would represent inmates serving Three Strikes sentences and try to reverse or at least scale some of them back. Initially, the school saw this mainly as a teaching opportunity for students, but as Romano learned about what Cooley was up to in L.A., he saw an opportunity for something bigger.


Perhaps, Romano thought, Cooley's office would work with Stanford to help fix some of those cases. He reached out to his office and the two groups immediately found common ground. There was even discussion at one point about Stanford working within the district attorney's office to reverse old cases, but that was ultimately discarded in order to preserve the traditional adversarial legal structure – which made sense because, among other things, Cooley didn't agree with Stanford about every single nonviolent inmate. Ultimately, the DA agreed that if the Stanford group challenged some of the more absurd Three Strikes cases, his office, on a select basis, might not oppose their efforts.


"The hypertechnical legal term," says Romano, "is the 'You've gotta be kidding me' motion." As in, 25 years to life for stealing a pair of socks? You've gotta be kidding me. Life for stealing baby shoes? You've gotta be kidding me.

It didn't happen all that often, but Cooley occasionally agreed where Garcetti had not. This was interesting for one conspicuous reason. "Garcetti was a Democrat," says Mills. "And Cooley was a Republican. It's not what you'd expect, but with Three Strikes, everything turns out to be backward."

Mills and Romano would learn this lesson in a big way when they decided to aim higher than just freeing individual prisoners one at a time. From the very beginning, there had always been significant opposition – from members of both parties – to the dumber aspects of the Three Strikes law. As far back as 1994, when the original ballot initiative was first being planned, everyone from Gov. Pete Wilson to Los Angeles County Sheriff Sherman Block to the California District Attorneys Association supported versions of the law that required the third strike to be a violent or serious crime.


Over the next few years, the Stanford Three Strikes program continued to pull prisoners out of jail one by one, freeing more than two dozen people between 2009 and 2012. But it was a laborious process, each case taking hundreds of hours. "I came to Mike," says Mills of Romano, "and I said, 'We can't do this one-off anymore. We have thousands of people in there.'"

So they came up with the idea of doing another ballot initiative, one that would be laser-focused on correcting what they saw as the most serious defect of the law: requiring that an inmate's third strike be a serious crime. The surprise came when Mills went looking to raise money for what he expected would be a hard-fought campaign.

"I could not get any liberals to give me any money," he says. Mills did find one donor – George Soros – but that was it. In the end, more than 90 percent of the campaign was funded by two people: Soros and Mills himself.


The people who led the campaign remember their election-night victory with great fondness, but the whole experience was a bit bittersweet, at least for Mills, who seems scarred by the failure of liberals to stand up for the Norman Williamses of the world.

"They'd say things like, 'I hear you, but I really care about environmental causes, education for the poor,'" Mills says. "What it came down to, though, is that these people just don't care about the poor people of color who are locked up, and would as soon see them not released."

Romano tends to look more on the bright side and seems more focused on the big picture, which is that the measure passed and thousands of people finally have a chance to get out of jail. But he does have some thoughts about the politics of what happened. "I think some liberals overlearned the Willie Horton lesson," he says. "But I hope what we did is prove that this political third rail is no longer electric."


The fact that some progress toward scaling back these draconian laws involving the poor and underprivileged is finally being made is coming at a time when there is an emerging controversy over the conspicuous nonpunishment of big bankers, notorious subprime lenders (many of them Californians) and other wealthy offenders is probably not an accident. One of the interesting results of the polling Mills commissioned last summer was that California voters were surprisingly unmoved by the issue of the cost of incarcerating Three Strikes inmates. "But they were intensely interested in the issue of fairness," says Mills. "That's one of the things we found out: People will pay for justice, no matter how much it costs. But it has to be fair."


"People get so hung up on the concept of innocence," says Mills. "But it's intellectually uninteresting. What does matter is how we treat the guilty, and that's where we still have work to do."