An Unjust “Three Strikes” Sentence Is Cancelled…After 23 Years

Ken Oliver (R) with his father, post-release.

The theory behind “three strikes” laws is that it  restrains habitual law breakers by upping the risks every time they engaged in their favorite pastime. It makes criminal culpability cumulative: three smaller crimes add up to the same punishment as one big one. These laws first arrived in the 90s, under President Clinton. I remember my reaction at the time was 1) maybe it will work as deterrenceand really reduce crime and 2) if a twice-convicted criminal knows that the third “strike” will send him away for a long time and commits a felony anyway, that’s his choice, and nobody should feel sorry for him.  I admit that I still have vestiges of this rationale lurking in my brain; it’s the Baretta Principle, from the TV show that made Robert Blake a star before he had his wife killed: “Don’t do the crime if you can’t do the time.”

Ironically, Blake did do the crime and never had to do the time, but then, he was a star. His career hasn’t been going so well, though.

There is some evidence that “three strikes” laws work. Some states, like California, have recorded dramatic drops in  crime rates since the enactment the measure.  In a 2011 report, Los Angeles reported crime had decreased by half since 1994, when its “habitual felon’ statute went into effect. Data from other studies suggests that this is an illusion.

The problem is that “three strikes laws” take away judicial discretion in sentencing, and that sometimes, this leads to punishment that could be legitimately called “cruel and unusual,” an 8th Amendment violation.

Kenneth Oliver, now 52,  was freed from a California prison last week after serving 23 years of a life sentence for a joyriding conviction under the Golden State’s “three strikes” law.  Oliver was arrested for being a passenger in a stolen vehicle and pleaded guilty to taking a vehicle without permission.  A stolen handgun was later found in his hotel room.  Oliver had a long rap sheet, starting with an armed robbery when he was 16. Nonetheless, there is no avoiding the fact that he was sentenced to life in prison for a non-violent felony.

California voted to eased the law in 2012, limiting  life sentences  to when the third strike involved a major or  violent felony and freeing nearly 3,000 third-strike inmates. Oliver was ineligible for a reduced sentence because ” gang materials” had been found in his cell, notably  a book called “Blood In My Eye,”  by Black Guerilla Family co-founder George Jackson. That got him eight years in solitary confinement. Remember, he was in prison because of an arrest for riding in a stolen car. The tale is worthy of Kafka.

Los Angeles County prosecutors dropped their objections to freeing Oliver “in the interest of justice.” The state corrections department expunged his gang-affiliation record and paid him a $125,000 settlement for his time in solitary.

“It’s almost impossible to believe that what happened to Ken happened here in California. You know, people think of this as an enlightened state and both the sentence and the time in (solitary confinement) don’t square with that,” said Ward Johnson, lead counsel on the case at the Mayer Brown law firm.

Well, I would take issue with the “enlightened state” part, but Oliver certainly had been behind bars far too long.

“Ken’s sentence of 50 (years)-to-life was much longer than (for) rapists and murderers,” said Michael Romano, director and founder of the Three Strikes and Justice Advocacy Projects at Stanford Law School. “There should be some proportionality.” Romano  estimates that another 200 to 500  “three strikes” inmates remain incarcerated largely because they can’t afford the legal team that worked for free on Oliver’s behalf.

Oliver was praised by prosecutors for being a model prisoner and an example of rehabilitation. He certainly sounds that way. From the AP:

“I really haven’t wrapped my head around it fully,” Oliver said 24 hours after his release and after he and his father, a university dean in Georgia, celebrated with dinner at the Cheesecake Factory. “I do feel like time has passed me by but I’m trying not to be negative about it.”

He’s now in a transitional housing program and plans to become a paralegal, helping others through social justice programs while reconnecting with his three adult children.

He couldn’t understand being sent to solitary confinement for possessing a book readily available in most campus libraries, but spent his time studying the law and filing the federal lawsuit that eventually helped lead to his release.

“You’re single-celled for most of the time and every time you leave the cell or are escorted out you have to strip naked and bend over and cough,” Oliver said of his time in solitary. Exercise was three hours a day in a six-by-nine foot “dog kennel.”

“Some people go crazy in there,” he said. “Me, I chose to read and try to find a way out of there and not let that circumstance define me.”

8 thoughts on “An Unjust “Three Strikes” Sentence Is Cancelled…After 23 Years

  1. Although the goal of three strikes laws make a certain amount of sense to me, I think they should be replaced by escalating punishment based on the number of serious crimes in your history, and only including a previous crime if your new event would be withing the statue of limitations period of the previous one. For instance, multiply by (1 + 0.5X) where X is the number of previus crimes. That would mean if you kept your nose clean long enough many crimes would drop out of consideration, and if the newest is shoplifting you won’t get 20 years for it, probably.

    That sound like a better set up to anyone else?

    • Isn’t there more than a hint of some sort of almost double jeopardy aspect to three strikes? If you’re convicted of a crime and serve your sentence but then are more severely punished for a subsequent crime because of the previously served sentence, Aren’t you being re-sentenced for a crime that’s already closed and served? Seems unconstitutional to me.

      • You aren’t being re-sentenced or retried. Heightened punishment is a long term consequence of your first trial.

  2. These extreme cases of unjust application of the law are almost a “reduction ad absurdum” situation, I.e., “What is the most egregious way in which we could apply this law?” but to me this is the best argument for leaving some room for limited judicial discretion in applying such laws. Obviously, prosecutors also bear great responsibility for charging under these laws in inappropriate circumstances.
    Tennessee has a long-standing “three strikes law,” but In recent years there was an attempt to change the law to provide for a life sentence without parole after two separate convictions for a violent crime (not two convictions resulting from the same criminal act). The “three strikes” law replaced “persistent offender,” “habitual offender” and “Class X felony” mandatory sentencing laws that existed going back to the ’70s. Most of the objections I see to these laws involve the removal of judicial discretion in sentencing, which on the one hand seems to allow sensible differences in application of the law, but on the other hand opens the door to many possibilities to favor “preferred” defendants -depending upon the judge’s preferences, that is.
    On the flip side, there is in my county a career criminal who has multiple violent felony convictions, including rape, robbery and aggravated assault, who has served a few short prison stints but is currently on “lifetime community supervision” by the state, rather than being in prison for life where he belongs. I predict he will eventually kill, or be killed.

  3. Arizona’s citizens will be among this reform’s beneficiaries: Quite a few of California’s habitual offenders head east to Arizona, hoping to continue their criminal careers without facing a potential life sentence (Arizona had similar statutes, but the habitual criminal apparently goes back to his first strike when he enters the new state). This should reduce the number of habitual lawbreakers entering Arizona in the hope of avoiding California’s law.

  4. FYI– The original three Strikes in CA provided that the second “strike” was subject to a doubling of the statutory sentence. It kept that burglar out of your house for twice as long. Many credited that provision for much of the reduction logged. The first and second offense had to be one of the offenses enumerated in the law. The third strike could be anything, hence the meme of “life in prison for a pizza” or whatever…. That one being the robbery (at knife point) of a pizza delivery guy. Or “stealing a bicycle” even though the thief had to break into a garage to get to it. A later ill-advised modification to the law required the third strike to also be a specified offense.

    [Note: In CA “shoplifting” can be a burglary. Entry with intent to commit theft or any felony is a “breaking” required. [Most armed robberies of businesses are also burglaries.]

    Prosecutors have/had the option of “charging” a prior as a strike and defenses often bargained for dripping a strike in plea bargains. Judicial discretion comes into play in allowing this stuff. It also was responsible for the law in the first place: too many judges were refusing to adequately sentence obvious dangerous offenders, thus leaving them able to continue their evil ways, at the law abiding public’s peril. The citizens got tired of the revolving door and did an initiative to enact the law.

    I am perplexed as to how “riding in a stolen car” was chargeable. My experience was commonly that everyone apprehended in such a car was a passenger (by their own admission) or a recently picked up hitchhiker. I have some doubts about all this and would have to see the full full rap sheet and facts of the cases before jumping on any band wagons.

    This guy is out now. Fine. I hope he keeps his nose clean.

    • My late cousin, when he was a juvenile, was arrested for riding in a stolen car. It started a long, sad cycle of depression and misfortune for the kid, who committed suicide in his 20’s. This was in Massachusetts.

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