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Three Strikes and You're Out. Human Rights, US-Style
Published on Saturday, January 26, 2002 in the Guardian of London
Three Strikes and You're Out. Human Rights, US-Style
As Americans shrug off criticism of Camp X-Ray, thousands of their countrymen suffer cruel but all-too-usual punishment
by Duncan Campbell in Los Angeles
 
The scene is a battered old green and white bungalow in the heart of South Central, Los Angeles, which serves as the local Quakers' meeting house. There are around 20 people here, heads bowed and holding hands as one of their number, Carmen Ewell, asks the Lord for his help in the mighty task facing them.

That task involves changing one of the most controversial statutes in the US, the three strikes law, so the people now serving prison sentences of 25 years to life for offenses including stealing four cookies, and possession of $10 worth of drugs will be able to return to their lives.

In a week that has been dominated in Europe by debate about the way al-Qaida suspects are being treated in Guantanamo Bay, in the US itself the public mood is utterly unflustered by such human rights issues. For this is the country that has jailed a higher percentage of its citizens than any other in the world. And this is the country that has embraced the three strikes law.

The law was introduced after the horrific murder of a 12-year-old girl called Polly Klaas in 1993. Her abductor and murderer, Richard Allen Davis, was a three-time offender who was on parole. In the wake of the outrage over the crime, Californians voted for an initiative which called for three-time felons to be jailed for a minimum of 25 years. The initiative became law, and now more than 30 states in the US have adopted their own versions of it.

Under three strikes, violent criminals like Davis have been locked up for life. But it has also been used to sweep thousands of homeless people, drug addicts and petty offenders off the streets and into jail with sentences that bear little relationship to the crime. Critics of the law claim it has created a Siberia of forgotten prisoners, mainly black and Latino, who are the victims of cruel and unusual punishment.

Gregory Taylor, for instance, was a homeless man who used to hang around outside St Joseph's church in Los Angeles and would often ask the priest for food. The priest was usually able to find him something over the nine or so years he knew him. Shortly after 4am one morning in 1997, Taylor decided he could not wait for the friendly priest and pried open the church's kitchen door. A security guard spotted him and the police were called. He is now serving 25 years to life because the break-in was his third felony. When he appealed unsuccessfully against his sentence last year, one of the dissenting judges said the case was "like something from Les Misérables".

Taylor's case is far from isolated. At this meeting of the South Central chapter of Families to Amend California's Three Strikes (Facts) there are mothers and fathers and girlfriends and wives of other prisoners who face dying in prison for offenses which in other parts of the world might not even merit a fine. "This is an insane law," says Geri Silva, who is chairing the meeting. "It's like cutting off a hand for stealing a slice of bread."

"The United States is a very unforgiving country at the moment," says Gail Blackwell, who works at the Facts office in South Central. Her friend, Joey Buckhalter, was jailed for 75 years to life for stealing a wallet with $24 in it. "People are more interested in punishment and revenge than in rehabilitation. People don't even care about the 2m people in jail in their country in terrible conditions."

Fred Zullo, another Facts supporter, is the father of 24-year-old Philip Zullo, now facing 75 years to life for making threatening phone calls. He is mentally ill, suffering from a bipolar and obsessive compulsive disorder. Mr Zullo says his son's offense arose out of a desire to commit "suicide-by-cop", a not-uncommon scenario in which disturbed people threaten the police, often with dummy weapons, in the hope they will be shot.

Philip Zullo telephoned an ex-girlfriend and her family, another girlfriend and her mother and threatened them with horrific violence. He then told the police he was wearing a bulletproof vest and had an AK-47 and said they would have to shoot him in the head to kill him. He has never owned a gun. But because he made three threats, a maximum 25-year sentence for each offense is multiplied three times.

"He is mentally ill," Fred Zullo says. "Never in his life has he harmed anyone. He didn't even remember the calls. He just said, 'Dad, I screwed up again.'"

The prosecution has indicated that it will seek the maximum sentence. The local district attorney has a reputation as a hardliner; his ranch is called Hang 'em High. He has already turned down a plea not to pursue the three strikes option. Of the law, Fred Zullo says wryly: "I was in favor of it, unfortunately. A lot of people didn't realize what it meant."

He has met Joe Klaas, the grandfather of the murdered Polly who now says the family's intention was never that the law should be used to incarcerate inadequates, minor non-violent offenders or the mentally ill. Indeed Mr Klaas even signed a personal ad that ran in the New York Times in which he said: "My family regrets that the law cast in her name has cast too wide a net."

He pointed out that 50% of three-strikers are nonviolent performers: "Does three strikes offer enough benefits to justify its huge fiscal and societal impact? It's too late to bring Polly back but it's not too late to make California a wiser, safer state."

Ricky Fontenot is serving 27 years to life for being in a car with a friend in which a gun was found. His last previous serious felony was in 1979 when he was 18. He had since become involved in community action, had a full-time job and was married with three children. The prosecution offered him a deal whereby he would serve only four years but he insisted he was innocent and was thus hit with the maximum.

"We have dedicated our lives to trying to get him out," says his stepfather, Roland McFarland, after the South Central meeting. "It's expensive - you've got to come up with that almighty dollar. There are some vicious crimes that should be addressed and I would support a three strikes law for that but not for people who have never even threatened anyone."

These are just a tiny sample of the cases. Probably the most famous is still that of Jerry Dewayne Williams, who at the age of 27 was sentenced to 25 years to life for stealing a slice of pepperoni pizza. He was eventually freed on appeal after six years. Kevin Weber stole four cookies from a Santa Ana restaurant in 1995 and was jailed for 25 years. Duane Silva, a 23-year-old with manic depression and an IQ of 70, received 30 years to life sentence for stealing a video recorder and a coin collection from his neighbors. His previous convictions were for setting fire to rubbish bins and to the glove compartment of a car. Then there is Doug Rosh, doing 25 years for possession of $10 worth of cocaine. Mary Thompson, doing 25 years for petty theft. Joyce Demeyers, doing 25 years for $20 worth of cocaine. Constantine Aguilar, doing 25 years for receiving stolen property. Chano Orozco, doing 25 years to life for possession of about $10 worth of heroin. Frederick Morgan, doing 25 years to life for simple possession of drugs and petty theft.

A total of 6,700 people are now serving 25 years to life under the law and Facts says more than 3,350 of them are nonviolent offenders, with 350 serving 25 years for petty theft. Of those serving third strike sentences, 44% are black and 26% Latino.

One of the main arguments for the three strikes law is that it has cut crime in California. Certainly crime has dropped in the period during which it has been in place but it has fallen yet further in states with no three strikes law. The San Francisco area, where prosecutors rarely use the law for nonviolent offenders, has also seen a sharp drop. New York state, with no three strikes law, and California showed the same crime reduction of 41% between 1993 and 1999, according to the Sentencing Project in Washington.

Those campaigning to change the law are now pinning their hopes on Jackie Goldberg, a Democratic state assemblywoman who is introducing a bill to limit the heaviest application of the law to criminals convicted of violent or serious crimes. The day she announced her bill, a survey carried out jointly by Facts and Citizens Against Violent Crime showed that 65% of Californians believe that the law should be used only against violent felons.

But this is election year in California. Governor Gray Davis, already accused of seriously mishandling the state's power crisis, is in no mood for reform as he runs for re-election. Bill Jones, a Republican eyeing his job, said this week that changing the law would give criminals a "get out of jail free card".

The Los Angeles district attorney, Steve Cooley, agrees that the law has been wrongly applied in the past, but says there is little chance of retrospective action to free those jailed for minor nonviolent offenses because few politicians want to be accused of being soft on crime.

There is also a powerful prison-industrial complex which has a very clear financial incentive in maintaining the three strikes law. California spends $5.7bn a year on its prisons and there would be fierce lobbying against any reduction in the budget. The prison officers' union is a powerful political player and fights any reform that might put members out of work. It has donated $2m to Governor Davis's campaign.

Back at the South Central meeting, Carmen Ewell, whose husband is in jail for passing a dud check, calls on the Lord for his help in persuading the law-makers that the three strikes law is indeed cruel if it is no longer unusual. But, for the time being at least, it would seem that Les Misérables is assured of a long run in California.

© Guardian Newspapers Limited 2002

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