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.”