Three Strikes: An Update After Propositions Reform Sentencing for Nonviolent Offenders and Milestone of 2000th Prisoner Released Approaches

Photo by Linda A. Cicero / Stanford News Service

California’s overcrowded prison system is approaching a significant milestone—the release of the 2000th nonviolent inmate serving a life sentence under California’s Three Strikes law. Some of these prisoners have already served over 20 years for crimes as minor as shoplifting a pair of socks or possessing a fraction of a gram of drugs. And lawyers and law students at Stanford’s Three Strikes Project are celebrating this milestone, but also hunkering down to continue their work—work that has increased dramatically since passage of two significant sentencing reform ballot measures in the state, Proposition 36 in 2012 and Proposition 47 in 2014.

The Project was among the first to shine a light on the problem of nonviolent offenders caught up in California’s Three Strikes law—and to do something about it. Since its launch in 2006 as the only legal organization in the country devoted to addressing excessive sentences imposed under California’s “Three Strikes and You’re Out,” the Project has focused on not only representing Three Strikes clients imprisoned under the law for petty crimes, but also on reforming the harshest aspect of the Three Strikes law. The Project represented and collaborated with the NAACP Legal Defense and Educational Fund (LDF) in enacting the Three Strikes Reform Act of 2012 (Proposition 36), which allows for resentencing to shorter prison terms for prisoners who are serving life terms for non-serious, nonviolent crimes and who no longer pose a threat to public safety. The official proponent of Proposition 36 was Stanford Law Professor David Mills. The Act was drafted by Mills, Romano, lawyers at LDF, and students participating in the Three Strikes Project.

Since the enactment of the Proposition 36 in 2012, Project staff and students have represented dozens of inmates, helping to resentence their life sentences and gain them early release. They have also been working alongside public defenders throughout California to make sure the new law is implemented fairly and consistently and to secure representation to meet huge demand. So far almost 2,000 prisoners have been freed under the reform, reuniting with their families and building new lives. Very few have returned to crime. The recidivism rate of prisoners released under Prop 36 is under 5%, better than ten times the state average.

Building on their success with Prop 36, the Three Strikes Project worked with allies including LDF and Californians for Safety and Justice to expand sentencing reforms under a new ballot measure, Proposition 47, which California voters enacted last month.Proposition 47, which reduces penalties for drug possession and other nonviolent crimes, also allows for resentencing of individuals serving excessively long terms in prison for those crimes.

The Project is also an educational endeavor. Under the direction of its cofounder and executive director, Michael Romano, each year the Three Strikes Project offers dozens of Stanford Law School students the opportunity to work on cases of individual prisoners seeking relief under these reforms and explore new ways to reform and improve California’s prison and justice systems.

In the interview that follows, Romano discusses their work and the impact of Propositions 36 and 47.

How many clients has the Three Strikes Project helped since it started?

Romano: In the six years leading up to Proposition 36, we won the release of about two dozen clients under some pretty arcane state post-conviction and habeas corpus rules. Prop 36 opened the floodgates though, allowing for resentencing of most nonviolent three strikes offenders. Since its passage in 2012, we have won the release of about 50 of our clients through resentencing, plus we’ve worked with public defenders across California to facilitate the release of nearly 2000 inmates statewide, so far. About 750 prisoners serving life sentences for nonviolent Three Strikes crimes remain eligible for resentencing, and we are working hard to win their freedom too.

Can you talk about how the project is advising other groups to help facilitate Prop 36?

Romano: Sure. We were the principal drafters of the legislation, on behalf of and in partnership with the NAACP Legal Defense and Educational Fund. They were our institutional client and we were honored to work so closely with the venerable civil rights institution founded by Thurgood Marshall. Since the law’s enactment of Prop 36 in 2012, we have worked with the courts, state agencies, defense counsel, pro bono lawyers, prosecutors and others to ensure the law is operating as we intended.

How did students work on Prop 36?

Romano: To start, Stanford Law students helped to draft the initiative, which was also co-sponsored by the District Attorney’s office of Los Angeles County, Steve Cooley. Project students were also involved with the campaign to pass Prop 36—talking to the media and identifying cases—that sort of thing.

After passage of the proposition in 2012, implementing the law has been a key focus for Project students, both by representing individuals who are now eligible for resentencing, but also by assisting with our work to insure that everyone who is eligible receives counsel—whether by us or by other lawyers, including SLS graduates who have volunteered to represent prisoners pro bono. In addition to working on individual cases, students, myself, and our staff attorneys, Susan Champion and Joy Haviland, have helped train public defenders, and they work closely with the courts, prosecution offices, state prisons, and department of corrections to facilitate the implementation and release of all of these clients, ours and those represented by others. They also help research and write appellate briefs for appellate issues that have gone out to the California Courts of Appeal and California Supreme Court. We have provided expert witness testimony and coordinated re-entry services for as many people as possible who has been released statewide.

So the scope of your work has expanded since Prop 36 passed?

Romano: Exactly. Now we have our clients who we continue to represent in court, but we also are facilitating a network of reentry support for prisoners being released statewide. And that includes formulating release plans to prevent recidivism. We have an online application form for assistance to make sure that people petitioning for release who do not have a safe, sober place to go, can reserve a spot in one of the best re-entry programs in the state that we’ve partnered with. We want to make sure that not only are unjust sentences overturned, but that prisoners who have been unfairly treated by the system in so many ways have a genuine and realistic chance at successful lives outside of prison. This work has, in turn, opened our eyes to other problems in the justice system and how hard it is for people to extricate themselves—particularly impoverished, under educated, and mentally ill people who dominate and clog California’s prison and jail populations.

Tell us more about the re-entry programs?

Romano: We’ve worked to build a statewide network of the premier re-entry services, which provide housing, sobriety support, mental health treatment, peer support, and employment assistance. We work to make sure that recently released individuals can go directly to these re-entry programs to help them get their feet back on the ground so that they don’t become another reoffender.
It is so hard to integrate back into society after prison. I say to our clients ‘It’s a marathon, not a race to get out of prison.’ And some of our clients, and the people that are being released from life sentences, understand that and are very patient. If they’ve learned anything in prison, it’s patience. They’re often understandably anxious to jump back into their lives, their families, trying to get jobs. But it’s a balancing act that I think requires professional assistance, which is why we have such a strong emphasis on re-entry to work and planning. We’ve also seen that a disproportionate number of people leaving prison are suffering from mental illnesses that were often untreated, or exacerbated, during decades in prison. Even the Supreme Court ruled in 2011 that California prisons were mistreating mentally ill prisoners. We’re paying special attention to help these prisoners receive the help and support they need—it’s not easy.

Looking at the statistics you’ve compiled on Three Strikes recidivism, your emphasis on re-entry is making a big difference.

Romano: I hope so. The recidivism data for those who have been released under Proposition 36 shows that around 4% of those who have been released have been returned to prison for committing new crimes. That is more than ten times better than the State average for everybody else released from prison during the same time period. The average recidivism rate in California is over 40% for the same period of time. Obviously, we don’t want any of these guys to commit new crimes, hurt people, or return to prison. But the low recidivism rate so far is extremely encouraging and we are proud of the hard work mostly done by the released prisoners themselves to successfully reintegrate to their families and communities.

Does the state emphasize re-entry programs in the same way that you do?

Romano: They don’t. No. And this is something we hope to emphasize moving forward. The ideal way to reduce prison crowding and “mass incarceration” is to prevent crimes from happening in the first place, and in my mind that means supporting people released from prisons and jails to reduce recidivism. There are still many unfair and unjust sentencing laws that need to be addressed, but reentry is an area where I believe civil rights leaders and law enforcement can find common ground.

Can you tell us about the challenges you’ve faced since Prop 36?

Romano: First of all, we’re struggling to make sure that everyone who is eligible for re-sentencing under Proposition 36 gets it. There are about 750 cases left to go – mostly in Los Angeles County.

How many have been released to date?

Romano: Almost 2000 have been released. We should hit 2000 any day now.

Can you say more about the challenges of Prop 36??

Romano: Well, implementing Prop 36 turned out to be a greater challenge than we had anticipated. During the drafting process and campaign in 2012, we did not really allow ourselves to concentrate on how to implement it during because we were so focused on getting the law passed. Once the law passed, we realized we had this tremendous task of making sure it was implemented properly and fairly – and it’s still a struggle two years later.

Can you tell us about Proposition 47?

Romano: The Project was also involved in the drafting and now implementation of Proposition 47, which essentially expands Proposition 36 to a new group of inmates who are serving enhanced sentences—sometimes called “second strike” sentences—for many of the same types of nonviolent crimes: mostly drug possession, petty theft, and shoplifting. These sentences are generally 1 to 3 years, but can be as long as 10, 12, 15 years. Also, moving forward, Prop 47 makes it a misdemeanor, not a felony, for defendants who commit these nonviolent crimes. As with Prop 36, we are working with a coalition of partners to make sure the implementation of Prop 47 goes as smoothly as possible—that prisoners receive counsel, that courts do their job by reducing unnecessary sentences, and making sure that released prisoners have the support they need reentering the community.

And the job of the Project has changed since Prop 36—with more teaching, networking. Will Prop 47 present more of the same?

Romano: Both Proposition 36 and 47 provide a new mechanism for litigating these cases in court, but they all still need to be litigated. So the nuts and bolts of the Project remain the same—representing our clients to ensure resentencing and early release. But we have learned a lot since we started in 2006. Early on, we were using arcane habeas corpus rules. Now these initiatives provide a new legal avenue for release. We’ve also learned more about how the justice system works, and doesn’t work, up close—and how the scales are particularly skewed against the homeless and mentally ill. It’s not news that poverty, addiction, and mental illness are deeply intertwined with the justice system, but it is still eye opening to us—and our students—when you are sitting face-to-face with a client who is serving a life sentence in a maximum security prison because he tried to buy $5 of crack from an undercover police officer, or because he stole a dollar in loose change from a parked car, or because he shoplifted a pair of socks. These are all real cases, and our students who will graduate and are off to great lives and careers in law are spending their time helping people at the very opposite end of the justice system. It’s inspiring.

But we cannot do this on our own, we don’t have the capacity to represent everyone in need. So we are building on our networking—coordinating with the public defenders, training, providing sample pleadings and amicus briefs throughout the state. That’s certainly new for the students.

Prior to Proposition 36, we were really the only game in town representing people who’d been sentenced for life for nonviolent crimes. Now with the enactment of Proposition 36, public defenders throughout the state have taken on these cases and we have mobilized a network of hundreds of defense lawyers – both public defenders and pro bono counsel. So we have worked with a number of large law firms who have taken on these cases, as pro bono counsel. And even some volunteer attorneys, including retired SLS grads.

What’s the scope of that problem that Proposition 47 will address?

Romano: In some ways it’s bigger, because there are more people who are eligible for reduced sentences. In other ways the impact of Prop 47 is smaller because, in contrast to Prop 36 which reduced life sentences and won freedom destined to spend their last days in prison, Prop 47 shortens sentences for people who were going to get out at some point. With Prop 47 they get out sooner. So, the change in the individual people’s lives might not be as significant. But the change to the state-wide prison and jail systems may be larger because it affects more people. And implementation may be harder because there are more attorneys needed, more courts needed, more probation officers, more re-entry services—all that needs to be expanded.
Luckily we have the experience of Proposition 36, which has really provided a model and a track for us to follow, in terms of relationships with these organizations and the networks that need to be developed. And Proposition 47 involves very similar statutory frameworks, so the law that was developed in the 36 context that has now been litigated on appeal, also should apply to 47, which should be helpful.

How involved was the Project in drafting Prop 47?

Romano: In many ways, it started with Prop 36, which was conceived and drafted and built at the law school by students, by David Mills and myself, lawyers at LDF, and—critically—in partnership with the largest law enforcement agency in California, the LA district attorney’s office. Prop 47 was modeled explicitly after 36, both in terms of statutory mechanics and the campaign.

Why do you think voters supported these propositions? Did the financial argument have an impact?

Romano: Not as much as we expected. One of the most important and promising lessons of these campaigns is that voters overwhelmingly want reforms to the prison system, which they rightly see as unfairly administrated against the poor, disadvantaged, and mentally ill. Voters have also absorbed the lesson that long sentences and “tough on crime” laws are ineffective at keeping the streets safe. Our campaign and polling clearly showed that people support these reforms because they are the right and just things to do—not merely because they save the state a few bucks. I think the argument that we need these reforms to save money is deeply cynical. It also turns out to be bad politics.

That being said, we are saving the state money. That’s not trivial. Proposition 36 will save taxpayers over $750 million over the next ten years. And Proposition 47 will save at least as much.

But Proposition 47 does something that 36 doesn’t do—it takes a portion of the projected savings from resentencing and allocates that money to state education, mental health, and crime victims services. It’s still net savings, but part of the savings is going to go towards those services.

That leads us back to the importance of re-entry services programs for those released to prevent the norm of 40 percent recidivism. Why did you start focusing on that when your plate was and is still very full with representing clients?

Romano: It evolved, really. When we started the Project, we really struggled with the thorny constitutional litigation that was at the front end of our cases. And then once we actually became successful and were winning the freedom of our clients—almost to our surprise and, of course, to our great joy—we realized that our representation had to extend beyond the courtroom to ensure that our clients could reintegrate into society safely, reunite with their families, get back on their feet, get jobs. There are countless stories of our clients doing amazing things after they’ve been sentenced to life in prison and written off as hopeless recidivists and so-called “career criminals” who would never amount to anything, and who have now really put their lives back together again.

Can you share some of the client stories?

Romano: Well, there was just a story in San Francisco Chronicle about Eddie Griffin, who was sentenced to life under the Three Strikes law for possession of crack cocaine and is now a computer programmer. Another client, Kenyatta Leal, was freed from a life sentence out of San Quentin and is also in the tech business in San Francisco. We have another client, Norman Williams, who was sentenced to life for stealing a car jack from the back of a pick-up truck. And he’s now in Palo Alto managing a custodial service. We have another client who was sentenced to life for stealing a box of beer mugs from a storage locker outside Los Angeles, and he wound up working for Hertz rent-a-car and was named the employee of the month. He now has his own business.
I could continue—there are so many great success stories of people now living ordinary lives, doing what we all do, and not going back to prison.

Would you like to add anything else?

Romano: It’s been tremendously rewarding and humbling—as a teacher, a litigator and an advocate—to be part of something that began as a germ of an idea, with a handful of law students that really changed the world for so many people. The Project opened people’s eyes to the incredible injustice that was going on under California’s three strikes law, one of the most heinous and infamous criminal laws in America, and has given new hope to thousands of people who have now been freed from prison and reunited with their families. I couldn’t be prouder of our students, who have gone above and beyond the call of duty, and our clients who have done the hard work to get their lives back on track. Beyond our students and clients, I think and hope our experience has influenced the larger movement nationwide to re-examine prison policies and sentence lengths.

Michael Romano is the director and co-founder of Stanford Law School’s Three Strikes Project. He runs the Project along with staff attorneys Susan Champion and Joy Haviland.

Participants in Stanford’s Three Strikes Project and their clients talk about the successful effort to reform the California law. Video by Kurt Hickman.

1 Response to Three Strikes: An Update After Propositions Reform Sentencing for Nonviolent Offenders and Milestone of 2000th Prisoner Released Approaches
  1. “… Justice Scalia did say that the traditional role of the prosecutor before a grand jury is simply to present enough inculpatory evidence to establish probable cause and not to present exculpatory evidence. …”. That now in hindsight smacks of a rather underhanded attempt at undermining the due process so cherished by the fathers of the constitution. Scalia has just been “indicted” in having enabled the intelligence services and the DoD to torture alleged “terrorists” and deny them their rights under any applicable covenant, whether the Geneva conventions or the constitution or any, any (!) treaty or charter the US has signed, from the UN convention on human rights to the International Pact on civil rights etc. etc. It is unfortunate that the US justice system has no safeguards that would allow such perpetrators to be tried and put away for life. And it is little wonder, that certain disenfranchised parts of the US population do not trust the system that allows these people tenure and pension and powers to make other lives miserable.

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