Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan with Rich Ford. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all of our new episodes as soon as they’re available.

Our guest today is Mike Romano, a criminal justice lawyer who founded and is directing the Three Strikes Project here at Stanford Law School. It’s the first law school program of its type in the country, and it’s focused on securing reduced sentences for incarcerated people who are deemed to be serving disproportionate sentences in part because of three strikes laws.

As the project’s director for the past 16 years, Mike has worked with Stanford Law students to win the release of more than 200 Californians imprisoned under the state’s Three Strikes law. In addition to working with individuals to get them the benefits of release from prison, the Three Strikes team has also worked to change California’s Strike Three Strikes law.

In 2012, they celebrated passage of the Three Strikes Reform Act, a landmark legislative effort led from start to finish by Stanford Law students and project staff members in partnership with the NAACP Legal Defense Fund.

Mike, we’re just incredibly grateful to you to take time out of this busy work to talk with us about the project and your work on the project.

I think maybe the best place to start is to explain what the three strikes law is, where it came from, and what its effects have been.

Mike Romano: So, almost exactly 30 years ago, there were actually a pair of horrific murders of young girls in California and after struggling with deciding how to handle a violent crime, especially sensational and violent crime, news spread throughout California and the country on to enact laws that would send people to prison for the rest of their life if they committed three felonies.

Karlan: Let me just stop you there for a second. That’s because, in these cases, the people who committed the murders have been convicted of prior crimes, right?

Romano: Yes, in some cases. It actually ironically isn’t clear whether the people who perpetrated these crimes really would have been benefited or, or been incarcerated or been really affected by the three strikes law at all. I think it was more of a frustration with crime in general. In the late ’80s and early ’90s, not just in California, but throughout the country–like I said, this did start in California–there were these very high-profile murders here, but within weeks of the arrest of a murderer in Petaluma, California, Bill Clinton was calling for a federal three strikes law in the State of the Union address and it really caught fire and almost every state in the country shortly thereafter, passed some version of a three strikes law, which would impose a life sentence for three felonies.

And the way that it worked in California was particularly harsh because the felony threshold for crimes like simple drug possession and petty theft could be for extraordinarily minor crimes. So as a result, in California, we had thousands and thousands of people who were sentenced to life in prison for street crimes. Not that they were innocent, but that they committed these minor crimes and not the kind of crimes with the murders and horrific abductions that really prompted the law in the first place.

Karlan: Yeah, I remember the two cases that went up to the U.S. Supreme Court on the question whether three strikes laws were cruel and unusual punishment. One of them involved somebody who had stolen a golf club, and the other involved shoplifting some videotapes from a Walmart.

Romano: Those two cases, Ewing and Andrade, were a pair of cases involving people who received life sentences. Both basically were shoplifting incidents. And I think at the time there was a sense about whether or not the Eighth Amendment contained a proportionality principle at all. Most of the Eighth Amendment cases that had been before the Supreme Court had been death penalty cases and there was an argument that was being advanced by a number of the Justices, including Scalia and Rehnquist and Thomas, that really the Court should not involve themselves on whether or not 10 years or 20 years or even a life sentence was proportionate–that that was really the domain of state legislators and shouldn’t be left to the courts. And the idea was, well, surely if there’s a proportionality principle, that a life sentence for shoplifting a golf club would be unconstitutional.

Of course, that’s not the way that the Court came down in 2003. The Court ruled in both cases that the sentences–that the Eighth Amendment did contain a proportionality principle in non-capital cases, but whatever that principle may be, or whatever that line may be, these cases did not cross the line and they were within the domain of the legislature. And in some ways, that kind of killed what anybody thought was a chance to challenge these really long sentences.

Karlan: Yeah, so, so there now are all of these people who are serving extraordinarily long sentences for relatively minor crimes. Tell me how the three strikes project got started and what this project was designed to do.

Romano: So the origin story of the three strikes project—I was actually clerking on the Ninth Circuit and there were two cases that came before our court, the judge that I was working for at the time. One was somebody who forged a DMV application. He took the DMV application for his uncle who didn’t speak English, you know, and that’s a felony, you’re not supposed to do that. And he received a life sentence under the three strikes law for that. And the other was for aiding the sale of $5 worth of crack cocaine to an undercover police officer, where the police officer came up to this guy in the street and said, you know, can you get me some crack? And Mr. Joseph said “I can’t, but, you know, my friend over here can help you out.” And for that he received a life sentence for that. And the cases came through, and largely in part because of Ewing and Andrade, the amount of time that the judge, the judges on the Ninth Circuit spent on the cases, I mean, if they spent 20 seconds on it, that would have been a lot. I mean, it was just so quickly dismissed as perfectly appropriate that it really shocked me and struck me.

By comparison, the court was also struggling at the same exact time with a death penalty case and with a wrongful conviction case. And, of course, those are important issues themselves, but the amount of resources that went into those cases by comparison, the amount of lawyering that was involved, the amount of time and effort that judges and clerks and the memos exchanged, and the brainpower and the effort and the concentration that went into that case, those cases, were weeks and months, months of work, and compared to the, you know, 20 seconds that was afforded to the three strikes cases with no lawyers and no help.

And I had sort of wondered if there was a way that we could think about those cases and how extreme, how extraordinary, were they? Was it, you know, were these really outlier cases, you know, stealing golf clubs and aiding the sale of $5 worth of crack cocaine, or were there lots of them? And when I finished my clerkship, I started working for a small criminal defense firm in San Francisco, and we had another one of these cases, three strikes for possession of 0.03 grams of methamphetamine. Anyway, I, you know, long story short, I was doing research and kind of pulling the thread, and they were not just a couple or a dozen or hundreds. There are really thousands of people who are serving life sentences for these really minor crimes. And I came to Stanford and the law school was expanding its clinical program at the time, and I went to Larry Marshall, who of course was legendary in the wrongful conviction world, and I said, “Larry, we should do sort of an Innocence Project here, but not innocent. Guilty, right?” It’s the Guilty Project. You know, these people are absolutely guilty. There’s no doubt that, you know, Ali Fortan  did possess 0.03 grams of methamphetamine. We’re not going to dispute that. But was there, whether a life sentence was appropriate and could we figure out a legal strategy, especially after Ewing and Andrade that might afford these guys some relief.

Karlan: And so tell me what the strategy was and how did you, how did you get around the statement in three strikes law that judges had to sentence these people to life in prison, even if they didn’t think it was the appropriate punishment?

Romano: So what we decided to do is really borrow from death penalty litigation. And in particular, around the same time, the United States Supreme Court had recognized that there was a right to effective representation, not only at your trial, but at sentencing. And of course Strickland itself was, is a sentencing death penalty case, but again, the courts had routinely denied as claims of ineffective assistance of counseled sentencing, but in 2000, the Supreme Court finally recognized that actually sentences could be reversed for failing to do an adequate job at sentencing. And I thought that maybe you could apply the same principle in three strikes cases, because there is a narrow loophole that courts can use to avoid the three strikes sentencing in extraordinary circumstances.

And so we started filing habeas cases in California, kind of based on this idea that our clients received ineffective assistance of counsel at the sentencing phase of their three strikes sentencing hearing.

Karlan: Because there was this way to get around the mandatory piece that these folks didn’t use?

Romano: An extraordinary mitigating circumstances which had never been presented before in court could be presented, and particularly similar evidence that you hear in death penalty cases: mental illness, low cognitive function, extraordinary amounts of childhood trauma and abuse. And it was a bit of an experimental claim. As far as we know, there had never been really ineffective assistance of counsel sentencing in non-capital cases. It really had been the province of capital cases.

In fact, there was some ninth circuit case law that says that you couldn’t raise the claim, but I won’t go into it, but we ended up winning some cases. And in some ways, I think, we even surprised ourselves. One of those cases was actually one of the cases that came through when I was clerking at the Ninth Circuit.

I went back and found this guy, Willie Joseph. I just remembered the facts of the case of $5 worth of crack cocaine. I remember the judges. I looked it up on Westlaw. I found the guy. And we filed and then met him and realized that he had extraordinarily low intelligence scores, extraordinary diagnosis of mental illness and childhood trauma, and all the sort of classic mitigating evidence that I think courts have generally come to recognize as important in sentencing. And that almost nothing was done at his sentencing hearing. We filed a case in state court. There are also some rules in state post-conviction practice in California that allows you to file these claims 10, 20, 25 years after conviction.

We were able to get Willie’s life sentence reversed, re-sentenced to–we didn’t care what he was re sentenced to–because if he was re-sentenced to any term of years, which, which under different laws in California, he could have gotten 10, 20,, and I think he got something like 17 or 18 years, but he’d already served 20+ years, so we were fine to get resentenced to that 18-year sentence and he was freed. And one case led to another, and led to another, and led to another, and we’ve been extraordinarily lucky and successful.

Karlan: So have all of these cases been cases where the claim is that the original lawyer should have brought this material out and didn’t, or are there other sorts of claims that you’re bringing as well?

Romano: We’ll take any claim. We’re not devoted to any particular claim. We almost always litigate that there’s something wrong with the sentencing. Occasionally we’ll meet with clients and they’ll say, “ I’m innocent,” and we generally don’t go down that road. There’s new law in California on disproportionate punishment under the state constitution, which we have litigated. We recently won an equal protection claim. There’s been a number of reforms to sentencing laws, which we’ve actually helped enact that also raises new claims. There’s new laws in California that allow law enforcement to nominate people for resentencing, and we’ve also successfully represented clients under those laws.

So we definitely started under this idea of ineffective assistance of counsel, and that’s still our kind of our bread and butter claim, but we usually raise two or three claims for each of our clients, sometimes based on this new law, sometimes based on these reforms, depending on the precise posture of our cases.

Rich Ford: Now that you have been engaged in this work for a long time and a lot of people are being released, and we’ll talk about your law reform work later, but I understand you’re working on reintegration of people post-release. How is that work going and how challenging is that process of avoiding recidivism?

Romano: Yeah, it’s extremely heavy lift and it’s something that I honestly hadn’t really…It’s a tremendously good problem to have, but it wasn’t something that I had really thought much about to be completely honest when we started this. Like I said, we were kind of not really expecting to have much success to begin with. It was a bit of a flyer of a legal argument started off where I was going to meet. These people at the prison gates or our students we’re going to meet, you know, driving, you know, throughout California and meet people at prison gates and say, congratulations and we’re so happy for you. And where are you going next?

And of course we realized, you know, almost instantaneously that our clients had nowhere to go. The vast majority of people who are sentenced under the three strikes law are homeless and destitute and addicts and didn’t have intact families or communities to begin with, 15, 20 years ago, and now they’ve been in prison for this time, and the situation has only gotten desperately worse.

So, even like, where are you going to go that night? And after exploring and traveling the state, finding different programs that our clients could go to, we have formed partnerships with different residential treatment, housing, job training placement programs throughout California. We’ve also started a program where formerly incarcerated people will go and pick up our clients from the prison gates and bring them to these facilities because there is no transportation provided.

And one of the good news about our program is that we’ve been so successful that we can’t just physically do it. Our students can’t physically do it. We have too many people getting out of prison. So we’ve created this program called the Ride Home Program, where we’ve hired, including some of our former clients who are out and doing great, to go back, pick up people at the prison gates, bring them to their first meal, and then hand them off to their residential programs, usually in Los Angeles or in the Berkeley area.

Karlan: Recently, you had a really provocative and interesting oped in the New York Times about clemency and the fact that really, instead of having the kind of clemency that we’ve been following in recent years, when presidents give clemency to one guy here and one guy there, there are other ways of doing clemency that might be more effective at dealing with our mass incarceration problem. So can you tell us a little bit about your ideas and where you think we’re headed?

Romano: Sure. Back in 2000, about 10 years ago, we were asked by the Obama administration to help on then-President Obama’s efforts to award clemency to people who are overly incarcerated and maybe racially disproportionate punishment in the federal system. And it was extraordinarily flattering and exciting. It was also equally frustrating about how difficult it was to actually navigate the clemency process and for people to actually trickle up or get distilled down to where the President would sign off on their release. And we’ve been waiting for a friendlier administration to try to reform that process. And based on work that we’ve been doing in California, I sit on a committee to advise Governor Newsom here to avoid the, I think, sticky political problems that clemency raises, where the actual executive needs to sign off and says, you know, “Mike Romano or Pam Karlan should be freed from custody.” Can we do something just short of that? Or we can identify similar people who are doing very well in prison and may have proven their rehabilitation, but instead of having the executives, who are very politically sensitive, sign off on these cases, can we instead just bring those cases back to court?

And in court, have an open discussion about what their rehabilitation has been like, whether or not they remain a threat to public safety, what was their original crime, and do they have a reentry plan. None of that conversation happens in the clemency process. It’s all a black box. And in California, we have a process where the prison system can actually nominate people who’ve been incarcerated for long periods of time and send them back to court to have this conversation and maybe be resentenced. The federal system actually has a similar law. It’s on the books. It’s almost never used, and we’ve had great success with thousands of people being nominated for resentencing by the prison system. They want to be part of the rehabilitative process. They recognize that there are people who are unfairly incarcerated, send those cases back to court without involving the sticky politics of clemency. And so my oped was about encouraging the Biden administration to do something similar.

President Biden, when he was campaigning to be president, promised to reduce the federal prison population. It has only gone up during his presidency. Crime has gone down, so that’s not the reason for it. And of course, there are many ways that the system needs to be reformed. And this is not a way to wholesale reform federal sentencing, but I think it is a way that the president can, and his administration can, address some of the most egregious sentences in the federal system without involving Congress, without passing new laws, without involving clemency. So that’s the basic gist of my opinion.

Karlan: So one thing that you said really intrigued me when you were talking about the California system, and you said that the prisons were sort of nominating these people, and I gather the same thing was a little bit true with some of your Three Strikes work, that the prisons and also some of the prosecutors were quite cooperative. Could you say a little bit about sort of how you think those actors in the system are thinking about these issues of mass incarceration and release of individuals who are serving really long sentences?

Romano: Yeah. I think one thing that was surprising to me certainly is that prison officials really kind of have a good sense of who’s incarcerated, who’s there, who’s unfairly there, who’s safe to be released, and don’t feel really part of that process. They just feel like they’re in the warehousing business. California had this law in the books that allowed prison officials to nominate people to be sent back to court. And during Jerry Brown’s administration as governor, he empowered the state prison system to do just that. And the prison officials—and these cases are old cases, they’re 10, 15, 20 years old–judges have moved on, prosecutors have moved on, public defenders have moved on, people that haven’t thought about these cases. But they’ve been in prison this whole time. Prison guards, prison officials, wardens, deputy wardens, they know who these people are. They know who’s been doing well in prison and who hasn’t. In some ways they’re ideally situated. And sort of with the direction and blessing of the governor, started sending cases back to court and people have been released. DAs and prosecutors also now have been awarded a similar power where they can nominate cases for resentencing. And this is part of the progressive prosecution movement.

It’s actually been a lot less successful in terms of the volume of cases. Certainly there’s been good, important cases that have been corrected. But again, prosecutors are not super well suited to go back and review these cases that are, you know, really old. And prisons are. And if they’re motivated and incentivized and want to be part of the rehabilitative process, I think it’s an excellent opportunity and, and it’s worked well here in California.

Karlan: So here’s, here’s something that really interests me about this and I hadn’t thought about it until the way you were kind of describing things. It sounds almost as if, although we’re calling this a kind of clemency process, it’s really a re-institution of a kind of parole process. We got rid of parole on the idea that people should have to serve their entire sentences, and now this looks a little bit like parole in a way.

Romano: It does look like parole. I mean, California has a parole process. So this is, you know, sort of in some ways preempting that. And it’s really sort of going up and picking people who don’t deserve to be in prison anymore. That’s why I kind of thought of it in the clemency process. What to label it? I called it administrative clemency. I think in my op ed, I had a couple of different other terms that the editors of the Times, they sort of scratched out. Some people call it second-look sentencing. Some people call it compassionate release. I really wanted to get to this idea, which is the same idea, and maybe it’s the same idea as the parole process, where we’re looking for cases of people who are no longer necessary to be incarcerated, whether no longer a threat to public safety, or the punishment is unfair, or whatever it is that presidents and governors typically look for in clemency cases–that these are the same types of people that we would be looking for in in this process, whatever you want to call it. Of course clemency is not prescribed as to specifically what you’re looking for, but I think everybody kind of has a sense of the type of cases that are right for clemency and that’s why I kind of situated it that way, but that’s really kind of a rhetorical framing and has nothing to do with, I mean, it’s just a statute number. There’s no, nothing magical about the name.

Karlan: Let me ask one other question about this. And then I want to make sure that Rich gets a chance to jump in, which is how much of the kind of public thinking about this is also a product of the releases that went on during the COVID period?

Romano: Yeah. So the releases that went on under the COVID, I’m going to put air quotes around the “releases” because they were really releases to home confinement and there were a couple of thousand people released early from federal prison and put on home confinement and given basically ankle monitors and told to stay out of trouble. The Biden administration has not offered clemency and not reduced the sentences of those people. Now, some of those people, the sentences have naturally expired because it’s been a couple of years since COVID. And this would be an ideal group of people, the people who still remain, technically federal prisoners, but have been out in the community and presumably doing well because they haven’t been rearrested or sent back to prison. This would be a really easy, I think, first step of folks to receive either this type of clemency or just straight up actual clemency from the president, signs a piece of paper, and it’s done.

The process that I’m proposing means to be something that can be used a little bit more at scale, meaning it can spread out throughout the country. It’s not requiring one person, in that case the president, to actually sign off on a piece of paper, but we can take thousands of cases and bring them back to courts around the country and see whether or not the sentence is appropriate or not. And after that process, if there still remains racial disparities and geographic disparities and unfair sentences, maybe that’s where the president come in on top to make sure that there isn’t, you know, unfair punishment throughout the country. So that was kind of my thinking about that. But certainly the folks who were preliminarily released for COVID, those cases should be on the front burner.

Ford: Wow, Mike, this is really inspiring work and you’ve had a lot of successes. I wanted to ask you about the Three Strikes Project’s work to reform Three Strikes in California, the Three Strikes Reform Act, and perhaps whether you think there’s additional legislative reform that could happen either at a statewide or even at a nationwide level.

Romano: Yeah, so you know, after we were doing these individual cases in the basement of the law school when, you know, the clinics were located down there. One day, our colleague, David Mills, knocked on my door and said, this is really cute what you’re doing on these one off cases. You’ve won a couple dozen cases, that’s great, but aren’t there thousands of people? And I said, “yes.” And he said, “well, there ought to be a law.” And I said, “I agree. There ought to be a law. This is ridiculous.” You know, it’s one of those real, and the way that laws work in California, if a law was passed by a voter initiative, as Three Strikes was in 1994, the only way it can really be reformed is by another voter initiative, which makes some sense.

So I said to David, well, it takes another voter initiative, which is a huge campaign and a lot of money and a lot of mobilizing. And together with David and, as Pam mentioned at the top, the NAACP Legal Defense Fund, we brought together and built a campaign and students helped draft what would become the Three Strikes Reform Act of 2012, or Proposition 36, was put on the ballot in California and reformed California’s three strikes law to prohibit life sentences if the third strike is one of these non-serious, non violent sort of petty crimes, which did an extraordinary amount of good. Almost 4,000 people who had been serving life sentences were released under the measure. And of course it prohibited life sentences moving forward for these minor, minor crimes. Since then, as I mentioned, I’ve been asked to work with Governor Newsom to develop criminal justice reforms more in California. We’ve had great success here. We’ve passed about 15 separate statutes since, which in different ways have given people– which have shortened sentences, reduced enhancements, reduced racial disparities, given people a new opportunity to be released. And California’s prison population, in part as a result, has gone down dramatically, about 40 percent reduction in the number of people incarcerated in California. Our crime rates have also gone down at the same time. I like to make sure to emphasize that California’s crime rates are at historic lows despite having much fewer people incarcerated. And there’s a tremendous amount of work to be done in California, actually, and throughout the country. I think that we have had this idea that’s been recognized, I think, in the past decade or two that our country suffers from what’s been called mass incarceration, where we have far too many people incarcerated, often along racially disparate lines, a tremendous amount of mental illness and addiction wrapped up in it, and that we’re actually doing more harm than good. And we’re actually impeding public safety with a lot of our antiquated ideas about how to run our criminal justice system. And luckily, I think that there is an attitude, not just in California, but nationwide among voters, that the system is broken. Right, there is still fear of crime and some of that is justified, but I think there’s an understanding that locking them up and throwing away the key just isn’t working, hasn’t worked, it’s unfair, and it’s cost a tremendous amount of resources and ruined millions of lives.

So I’m proud to be part of the work out here in California, and in some degree on a national level, to try to find solutions that actually reduce that harm and improve public safety at the same time. That’s really the sweet spot of what we’re trying to aim for. It’s not easy. A lot of prejudices and bureaucracies and old ways of thinking remain, but we’ve been lucky for the most part and I’m optimistic that there will be further reforms. I’m really excited to work with my students and colleagues here at Stanford to think about what should be next. On my desk right now, I’m, you know, still working on cases of people who, you know, stole a can of beer from an Albertsons that has been in prison for 25 years.

Just today, one of our clients was released for stealing his own car back from a car mechanic. I mean, listen, he shouldn’t do it. These people shouldn’t steal beer and shouldn’t steal their own car backs, but also they shouldn’t get life sentences. So as much success there has been and optimism has in the future, there’s still, you know, literally tens of thousands of people, you know, in California, across the country who just don’t belong in prison. The prison system is just a horrific place for anyone to be. We’re doing more harm than good. And I’m glad to be part of the process and lucky to be part of our program here at Stanford.

Karlan: Well, thanks so much, Mike, for coming on our program today. So thanks to our guest, Mike Romano. This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us to improve and it’ll help new listeners to discover the show. I’m Pam Karlan, along with Rich Ford. See you next time.