INTRODUCTION: The People Behind the Headlines With speed rarely seen in the legislative process, California's lawmakers last March enacted a harsh new system of criminal punishment that will sweep thousands of people a year into prison for decades, at a cost of hundreds of thousands of dollars for each of them. Many of these men and women surely deserve severe punishment. But because of the "three strikes" law's simplistic, arithmetical formulae -- based on a metaphor borrowed from baseball -- many people will be sent to prison who may not merit such punishment. The Center on Juvenile and Criminal Justice set out to find and profile some of these people. We thought their stories would help to ground the current criminal-justice debate by shifting the focus from arithmetic to real people. The victims of crime, no less than the public at large, deserve an accountability based on actual circumstances. Neither criminal nor victim is a metaphor. After all, the public's indiscriminate anger was provoked by the tragic murder of a real person. But the politicians' response extended far beyond that unspeakable act. Many unintended victims were caught in the net. It was just a year ago that Polly Klaas, an innocent 12-year-old girl, was kidnapped during a slumber party at her home in Petaluma, Calif. She was subsequently murdered. That vicious crime, and the desperate search for the girl, drew national attention. For weeks before and after the capture of Richard Allen Davis, her confessed killer, the Polly Klaas kidnap-murder case made front-page headlines and top-of-the-hour bulletins. After the capture and immediate confession of Davis, a repeat felon with prior convictions for burglary and kidnapping, the case became an icon for what is wrong with the criminal justice system in California and across America. California's governor and senior senator gave speeches at Polly's memorial service, and President Clinton singled out her tragic case for mention during his "State of the Union" address. "Leniency," "soft-headedness," and "mollycoddling convicts" were all blamed for a plague of crime that the public percieved was engulfing the nation. And tough, no-nonsense, inflexible sanctions were seized upon as the panacea. At the same time, Mike Reynolds -- a photographer from Fresno whose daughter had also been killed -- was spearheading a then-fledgling movement to pass a rigid habitual offender act in California through both the legislative and initiative process. Several attempts to pass Reynolds' law had failed in legislative committees, and Governor Wilson had consistently refused to support the law prior to Polly Klaas' kidnapping. The act had been dubbed "three strikes and you're out" by the National Rifle Association, its primary promoter nationally, because of a provision requiring life prison terms for defendants convicted of any felony who had already been convicted of two purportedly "serious" or "violent" felonies. The stage was set for the meteoric rise in popularity of the legislation with the catchy baseball name and the financial backing of the powerful NRA. It was presented as an all-or-nothing nostrum. Few stopped to read the fine print. Within weeks, almost every major candidate for governor, senator, and attorney general from both parties endorsed the "three strikes" law, as did members of the grieving Klaas family. The public opinion polls, now showing crime as the No. 1 voter concern, were running 8 to 1 in favor of the state's newest crime-control cure-all. On March 7, 1994, following a special session of the Legislature on crime, Assembly Bill 971 -- "three strikes and you're out" -- was signed into law by Governor Wilson. That same day, enough signatures were submitted to the California secretary of state to qualify an initiative identical to AB 971 for placement on the November ballot in California as Proposition 184. But in the interval between the rise of the "three strikes" concept, its signing into law, and the present day, Californians have had an unprecedented opportunity to examine both the "diagnosis" that gave rise to the law and the legislative "cure" that "three strikes" represents. The Klaas family, along with many legislators who voted for the law, have recanted their support. Virtually every major newspaper in the state that extensively covered the kidnapping of Polly Klaas has now taken a position in opposition to the "three strikes" initiative. Poll results are running 2 to 1 in favor of the law, although 85 percent of respondents express a desire to have a "violent crime-only" proposition as an option on the ballot. With the intensive electoral scrutiny, two underpinnings of the "three strikes" law have been called into serious question: the contention that California has been reluctant to punish its offenders and the notion that crime is rising out of control. Since 1977, when California had 19,000 inmates in its prison system, the California Legislature has passed more than 1,000 bills lengthening sentences or defining new crimes, often in response to high-profile offenders such as Davis. The result has been a more-than-sixfold increase to today's population of 126,000. Between 1852 and 1984, California built 12 prisons. Since just 1984, California has constructed an additional 16 prisons. But during the decade and a half that imprisonment was soaring, the crime rate in California has stubbornly refused to budge, hovering today at approximately the 1977 rate. Indeed, during 1993 and the first half of 1994, the rate of both violent and property crime actually fell while public fear of crime inexplicably rose. A study by the Center for Media and Public Affairs in Washington, D.C., suggests one possible reason for such a paradox. The study shows that, while the murder rate nationally remained stable between 1992 and 1993, the number of homicides reported on the evening news of the nation's three major networks tripled. Not surprisingly, the report continues, from May 1992 to February 1993, there a sixfold increase in the number of Americans who rated crime as the country's most important problem. This governance by hyperbole is having dramatic and often skewed effects on criminal justice policy setting. As a victim of violent crime myself, I recognize that if I had the opportunity to set criminal justice policy 10 minutes after I was mugged, it would have been lousy public policy. Alternatively, it is obvious that, as long as the public believes that Richard Allen Davis is representative of the typical California inmate, no progress will ever be made in setting rational criminal justice policy in this state. The attempt to demonize crime suspects was well demonstrated in something we encountered while investigating "three-strike" cases around the state. We learned that those Stanislaus County jail inmates charged with "third-strike" offenses are clothed in special canary-yellow jumpsuits to distinguish them from run-of-the-mill inmates. In effect, this creates a class of criminals so horrible that they must bear a special mark of shame even before they are brought to trial. We were not able to find a reasonable rationale for such official scapegoating, yet the attitude behind this sartorial decision is in many ways a metaphor for the "three-strike" law itself. The individuals whose lives and cases are profiled in this report won't make the evening news or the front pages of the local paper. Their stories may come as a surprise to some observers, but for most of us who practice in the criminal justice system every day, they are just what we expected. These are the cases that fill the court dockets day after day. That's why we decided to undertake this study. Dale Broyles, for example, is a 25-year-old man who is charged with being an ex-felon in possession of a weapon. Broyles was deposited -- drunk and unconscious -- into the back seat of his car by some of his friends to sleep off his evening binge. The next morning, after his car was repossessed with him still sleeping in it, Broyles was brought to the attention of the sheriff's deputies by a startled repo man. While attempting to awaken Broyles, deputies noted a gun in the vehicle's front seat (which Broyles and other witnesses claim is not Broyles') and arrested him. Or Edward Morrison, a parole violator serving a six-month term in state prison for testing positive for drug use. With slightly more than one month left to serve on this violation, the mentally disturbed Morrison walked out of the minimum-security prison in which he was confined. He was apprehended less than 12 hours later in the process of applying for a job at a gas station. Then there are those facing decades in prison for petty theft, the most commonly committed and least frequently publicized offense in California. Eddie Jordan stole a new shirt from a J.C. Penney's store that he intended to wear at a job interview. Juan Muro attempted to steal wooden pallets from a parking lot to burn at a beach bonfire for the birthday party of a friend's son. Vincent Delgado and Clarence Malbrough stole less than $90 worth of items from chain stores; both had longtime heroin addictions. Duane Silva and Ricky Spahn are both borderline mentally retarded defendants charged with property crimes. Michael Garcia stole a package of chuck steaks to feed his family. And Kendall Cooke shoplifted one can of beer from a 7-Eleven store. Together, these eight defendants stole $8,000 in goods. It will take only 15 days before the taxpayers' bill for their collective imprisonment exceeds that amount. Each of the 10 defendants profiled in this report is facing a life sentence. None of the 10 men was ever accused of physically harming a victim. In this report, we chose to profile only people facing life sentences because that is the part of the legislation that has captured the public imagination. However, there are thousands of defendants facing sentencing under the "second strike" provision who could just as easily have been included. Many asked not to be included in this study because they feared offending district attorneys, who are the only officials with the power to plea bargain on "three-strike" cases by ignoring prior offenses. It is a power that even the judges are apparently not permitted under the legislation, thereby granting traditionally judicial discretion to prosecutors. One defendant we interviewed, Steve Percelle, stole a grocery cart full of groceries and liquor after he lost his job, in order to pay for medicine for his 2-month-old asthmatic son. Charged originally with a third "strike," the assistant district attorney in charge of the county's "three strikes screening team" decided to ignore one of Percelle's prior convictions after the media took an interest in his case. Percelle will instead spend four years in prison for that offense, over the objection of four of the assistant district attorneys on the county screening team who still wanted the life term. There is a temptation to view these cases as oddities. But evidence is mounting statewide that such cases are becoming commonplace. According to the Los Angeles district attorney's office, 75 percent of the "third-strike" cases their office is now being compelled by the "three strikes" law to prosecute are non-violent and non-serious. No defendants in their right mind will plead guilty to a life term for a case that six months ago would have carried a short jail term. The Santa Clara County Executive's Office has estimated that jury trials there will triple over the next year alone because of the "three strikes" law. Civil courts in Los Angeles have already been closed repeatedly to handle the "three strikes" overload from criminal courts. Clearly, to dub this group of defendants "the gang that couldn't shoot straight" would be to elevate their level of criminal sophistication. The Center on Juvenile and Criminal Justice undertook this study with the hope that these case histories would educate the public about the real lives of real defendants churning daily through our criminal justice system. Voters may read this and still feel that these men (and the women whose cases we were unable to profile) deserve life imprisonment. As researchers, we felt it our responsibility amidst the current criminal justice feeding frenzy to put a human face on the "three strikes" law. Through a quirk of legislative history, Californians have a rare opportunity to see in operation a sentencing system they are about to vote on. That system appears to us to need greater scrutiny. It is our hope that in considering this issue, voters will evaluate the experiences of real people rather than stereotypical desperadoes shrouded in the campaign rhetoric of fear and vengeance. If there is a lesson to be learned from the stories we present here, it's a message far older than Gilbert and Sullivan's "Mikado," where it was so catchily phrased: Let the punishment fit the crime. -- Vincent Schiraldi, executive director Center on Juvenile and Criminal Justice October 1994 # # # State Senator Tom Hayden, then a candidate for the Democratic gubernatorial nomination, is the only exception to this list. The deadline for placing new propositions on the ballot has passed. .