Many would say that for a lawyer nothing is more wonderful than the thrill of freeing the innocent or walking an unjustly incarcerated defendant out of prison. And indeed it is a wonderful thrill. A lawyer obviously cares about the individual deeply and passionately, cares about justice and doing the right thing. But a lawyer also cares deeply and passionately about the law. About making changes that ultimately make for a more just and fair society. Over the past few years dozens of Stanford Law students have been helping to free unjustly incarcerated defendants—as well as helping change California’s “three strikes” law in a meaningful way—through their extraordinary work in the law school’s Three Strikes Project. I have been privileged to help manage this effort, together with project director Michael Romano, JD ’03. The experience has changed me, changed Mike, changed the ways our students see the law, and changed the lives of thousands of men and women who will be spared serving life sentences for extraordinarily minor third crimes.
The Three Strikes Project was born of the recognition that representing some of these individuals—such as those serving life sentences for stealing socks—was a great opportunity to help our students develop their lawyering skills and to fuel their hunger for justice. And it worked. We achieved success, sometimes by persuading prosecutors to agree that the sentence imposed years ago was unjust and sometimes by convincing judges of that, over passionate prosecutorial opposition. The work has been extremely satisfying and we have dozens of victories under our belt, but it became clear that the problem was too vast for traditional litigation to accomplish any meaningful change. Almost all of the 3,000 inmates serving grossly disproportionate sentences for their minor crimes would die in prison if they had to wait for us to find room on our docket. We needed a wholesale approach; we needed to change the law.
Many said it could never be done. The law could only be changed through a ballot initiative and, we were told, voters would never agree to free individuals from prison. Indeed, a ballot initiative to narrow the three strikes law had been placed on the ballot in 2004 and it had been defeated. Despite the pessimism encountered, we and our students worked with our client, the NAACP Legal Defense Fund, (I also serve as co-chairman of the board of LDF), on a new ballot initiative. The students were there every step of the way—learning about how coalitions are built, compromises are made, and communications strategies are developed. And in the end, on the evening of November 6, 2012, we were together as we learned that California voters had approved Proposition 36 by a 69 to 31 margin (and that the measure had carried in every one of California’s 58 counties).
We celebrated that night, but the work goes on. Under the new law, with some exceptions, those who were previously sentenced under the three strikes law for minor crimes are entitled to be resentenced, unless the prosecution can prove by clear and compelling evidence that the individual would pose a serious threat to public safety. This means that each of these 3,000 eligible inmates will need legal representation. The vast majority of these individuals will be represented by public defenders in their counties, but for various reasons many others will not, so we will help fill that void.
And, of course, each of these individuals released from prison will be in need of reentry services including housing opportunities, employment services, and in many cases addiction and mental health treatment. Without these services the risk of recidivism is inevitably high—and we must invest what it takes to ensure that does not happen (an investment that is extremely cost-effective given the approximately $50,000 a year it costs to house an inmate in California).
We are proud to be doing this work. But even as we deal with law reform and wholesale remedies, we remain careful to keep our focus on the individuals in need of specific representation. We are mindful that nearly 40 percent of three strikers are mentally challenged and almost all come from backgrounds subjected to the continuing realities associated with being poor. And, in nearly 71 percent of the cases, these individuals are black or Hispanic. The case of Dale Gaines is one example—but there are hundreds, if not thousands, of equally compelling stories.
Dale Gaines served more than 16 years in prison for the “third strike” of possessing a stolen computer. He was arrested with a friend who had asked him to help carry the equipment. Dale’s friend received 3 years while Dale was sentenced to 27 years to life. Dale’s prior strikes were nonviolent burglaries, where no weapons were used, no injuries were sustained, and (we believe) about $200 of goods (in total) were taken.
In 1997, Dale was initially found mentally incompetent to stand trial by two psychologists and the judge. But his lawyers inexplicably waived the issue and a different judge who tried and sentenced Dale was never told about the psychological testing or Dale’s mental capacity. Dale’s lawyer presented no evidence in his defense. Dale was convicted and sentenced to life in prison—with no opportunity to even ask for parole for 25 years.
There is an expression, “I am often shocked, never surprised,” that captures Dale’s sentencing. The two groups that have been particularly targeted under the three strikes law are African-Americans and the mentally impaired. Dale is both. What happened next in the case, though, was really surprising. Ten years after his conviction, the deputy district attorney who prosecuted Dale’s case wrote to him in prison. She told him she regretted her role in his case and she encouraged him to contact us. But Dale is illiterate and never understood the implication of what she was suggesting. So we never heard from him.
A few years later, in 2011, Dale’s case came to our attention. Two students, Emily Murphy, JD ’12, and Meryn Grant, JD ’12, reinvestigated the case and found well-documented evidence of mental illness, mental retardation, and childhood physical abuse. (Among other things, Dale was a victim of KKK terror and his grandmother made him eat his own feces as punishment for being slow to be potty trained.) They convinced a neuropsychologist to evaluate Dale pro bono and his report, confirming the low IQ diagnosis and various other mental health issues, was included in the habeas brief filed by the Stanford Law students.
But nothing happened with that petition—until after Proposition 36 passed. At that point, 3L David Tracey (visiting from NYU) filed a new petition for Dale seeking relief under the new law. With the assistance of the office of San Francisco District Attorney George Gascón, he also found Dale housing, medical and mental health treatment, a caseworker, and a job-training program. Despite all of the evidence and services that had been arranged, the Sonoma County district attorney refused to consent to Dale’s release. At the hearing in April, Dale (who was handcuffed to a wheelchair) was represented by Jessica Spencer, JD ’13, under Mike Romano’s supervision. The judge acknowledged that our analysis was correct, was harshly critical of the Sonoma County district attorney, and ordered Dale’s immediate release. (As an aside, another judge in the courthouse stopped Jessica Spencer in the hallway and told her that all the judges in the courthouse had read the pleading the Stanford team had filed, calling it “spectacular.”)
Over the next few days, we navigated Kafkaesque bureaucratic hurdles to secure Dale’s actual release. But when it happened—when Three Strikes Project fellow Susan Champion, JD ’11, walked him out of custody and into the arms of his family—we were all reminded of why we dedicated our lives and energies for the past several years to this mission. Were it not for the changes we have been able to secure, Dale Gaines, a poor handi-capped man, would still be in prison and would have probably died there because of some petty burglaries and a stolen property charge.
To end where I started. No student who attended Stanford Law School between 2007 and 2013 should ever dare say that any injustice is too big to be challenged or that being a lawyer is solely about the rich, the famous, the privileged. These students have witnessed firsthand what a band of their colleagues have accomplished. The opportunity to have played a role in launching and shaping the Three Strikes Project is a great privilege that Stanford Law School has provided to me. I love being a lawyer and treasure the opportunity to help shape the education of law students. I am incredibly proud of what our students and project staff have accomplished.
David Mills is professor of the practice of law and senior lecturer in law at Stanford Law School, co-chairman of the NAACP Legal Defense Fund, and a lead proponent in the Three Strikes Reform Act. He founded and served as the first director of the school’s renowned clinical education program. SL