Thursday, October 21, 2004
It’s the Fourth of July, and instead of hanging in someone’s back yard drinking a beer and waiting for a burger, I’m being admitted to one of California’s 32 prisons for a visit with a relative I haven’t seen in nearly a year. Not the ideal setting for a family reunion.
To protect him, to preserve his anonymity and ensure his safety, I can’t name the prison or say what he did to end up there. Suffice it to say, he committed a desperate act and got caught. Like many with whom he shares the confines of prison—in the course of trying to dig himself out of a deep hole, he fell into a deeper one.
The prison is a huge complex of nondescript, warehouse-like buildings with narrow vertical slits for windows, all surrounded by two chain-link fences topped with concertina wire. Between the fences run parallel lines of thin wire that form another fence, this one electrified, lethal. Gun towers, most of them empty at the moment, loom on the perimeter.
Despite its imposing facade—or perhaps because of it—I get the sense that on any given day not much happens here which, of course, is part of the punishment.
I park close to the Welcome Center, essentially a mobile home with a few pieces of playground equipment. There’s a trash bag full of plastic bottles baking in the sun on the sidewalk, evidence that people have hit the vending machines hard. I’m welcomed by an older woman who informs me I’m in the wrong place (don’t I know it, lady): the Welcome Center is a safe space for women to stow their kids during a visit. I cross the parking lot on foot to the Visitor’s Center, where I fill out a form, hand over my driver’s license, wallet, and car keys, take off my shoes, and slip through a metal detector, all without incident. I’m issued a visitor’s pass. I’m allowed to take three dollar bills for the vending machines but not my notebook.
A glass door slides open and I enter a pen where I languish for about ten seconds, waiting for somebody to push the button that will open a gate in the fence. I’m in limbo, the claustrophobic territory between freedom and confinement, and I begin to get uncomfortable. Another five seconds pass. Impatient, I step back towards the glass door and hail a guard. The gate opens. Suddenly I’m in a world where the guilty and the innocent struggle first to survive and second to remain human.
There’s no escort to walk me to the right unit. It’s odd to be let loose in a prison. What if I get lost or go somewhere other than where I’m supposed to go? Another odd thing: it’s quiet. I hear birds chirping somewhere.
I nod and say hello to a Latino man and woman leaving after a visit. It’s a small but sincere gesture. Here, we are connected in a way we wouldn’t be on the outside, we share an immediate bond: a loved one in prison. We know each other’s grief.
I check in with an officer who looks over my pass and unlocks the door to the visiting room where men, women, and children crowd around low tables. Wives sit with their husbands, girlfriends with their boyfriends, sons and daughters with their absentee fathers. There’s an air of celebration, though it’s tinged by the reality that these meetings must end soon and the men return to their cells. The people gathered here—far from Main Street parades, from the spectacle of flags and fireworks—know how dear freedom is and how dearly it’s missed.
Maybe that’s why they’re having such a good time: this time is special, different from the time they do every day. Maybe that’s why a young prisoner can smile while posing with his sweetheart in front of a painted backdrop of the Lone Cypress, the trademark tree that symbolizes the elusive and the exclusive. The couple’s Polaroid is placed with others—face down, for some reason—on the podium where a guard sits and watches for violations of the Visiting Room Rules posted on the wall. A violation “may lead to disciplinary action and possible termination of the visit.” The first rule sets the authoritative tone: “Inmates may embrace and kiss their visitor only at the beginning and at the end of a visit. The embrace and kiss shall be moderate in length.” As if to apologize for such absurdity, the rules end on a hospitable note: “We hope your visit here will be a pleasant one.”
Although I’ve driven hundreds of miles to see him, I’ve got only an hour to talk with my relative over the phone. He’s in administrative segregation voluntarily and so is not allowed contact visits. I cannot hug him or even shake his hand. A thick slab of glass separates us, just like in the movies.
He’s thin, having lost 30 pounds in his first year of lockup. (“You would, too, if you saw the ‘mop n’ slop’ we had to eat around here,” he writes in a letter.) There’s something else about him—something hard to define but easy to notice—that speaks of being isolated and contained. It’s the look in his eyes, the strange grin on his face. Later, he reveals that he’s been CTQ—Confined To Quarters—which means he gets out of his cell for an hour a day and into the yard once or twice a week.
He talks about his pending transfer to a different prison the way fundamentalists speak about being sucked into heaven at the end of days. He expects conditions there to be practically breezy compared to what he now endures. He’ll have contact visits and be allowed to make phone calls and receive packages from family, which he can’t get at present. “Things are bad here,” he says. Things must be bad if his hope rests in another prison.
He tells me about Proposition 66, the Three Strikes and Child Protection Act of 2004, an initiative on the November ballot that, if passed, will amend California’s Three Strikes law. The way the law’s written, he says, someone can be “struck out” for shoplifting or possession of a small amount of drugs if he has two prior felony convictions. A misdemeanor can be upgraded to a felony if an offender already has two strikes—”it’s called a wobbler,” he says.
He’s got two strikes against him, and so his future is precarious: if he makes one false move, one mistake after his release, he could go back to prison for 25 years to life.
At the end of our conversation, we each press a hand against the glass, just like in the movies, and I watch as he puts on his white state-issue baseball cap. He smiles broadly, like Paul Newman in Cool Hand Luke, feigning nonchalance as he puts his hands behind his back for a tall, lanky guard to cuff. Then he and the guard turn and walk away.
— — —
The story of Three Strikes in California is one of revenge and political ambition. It begins on a summer night in Fresno in June 1992, with the shocking murder of Kimber Reynolds, an 18-year-old student at the Fashion Institute of Design and Merchandising in Los Angeles.
Reynolds and a friend were getting into her car after having dinner at the Daily Planet, a popular Fresno restaurant. Suddenly, two men pulled up on a stolen motorcycle, their faces hidden by visored helmets. The driver tried to take Reynolds’s purse, but she drew back. He then brandished a .357 Magnum and shot Reynolds point blank in the head. She was rushed to the hospital and died twenty hours later.
Within a week, Fresno police gunned down the culprit, Joseph Michael Davis, a young man with a bad meth habit and accordingly bad record, as he fled his girlfriend’s apartment, filling his body with 52 bullets. A kind of justice had been served. But Kimber Reynolds’s father, Mike Reynolds, was not satisfied. He wanted to do something. And so, just over a month after his daughter’s death, Reynolds gathered in his backyard a number of influential members of the Fresno community—including two judges, one of whom, James Ardaiz, was then an associate justice of California’s Fifth District Court of Appeals—to formulate a plan of action. It was the first in a series of meetings in which California’s future Three Strikes law was formulated.
From the beginning, the group’s intent was to lock up as many repeat offenders like Davis as possible, people they considered incorrigible and worthless; Reynolds described Davis as “the most dangerous type of killer, because he looked human, but was not human.” Initially, they called their proposal “The Street Sweeper” because, according to Reynolds, it “was designed to get all the criminal garbage off the streets.” They adopted, instead, the phrase, “Three Strikes and You’re Out!” which had been used previously in Washington State, where the nation’s first Three Strikes law took effect on Dec. 2, 1993.
To get the proposed bill through the Legislature, the group would need help. They went first to Bill Jones, Republican assemblyman from Fresno, who agreed to sponsor the bill and brought it to the attention of then-Attorney General Dan Lungren.
Lungren had built a reputation for being tough on crime during his days as a Republican representative in Congress. In Cruel Justice: Three Strikes and the Politics of Crime in America’s Golden State, author Joe Domanick writes, “As one of the key players on the House Judiciary Committee, Lungren was a driving force behind the radical nature of the 1984 Comprehensive Crime Control Act—a ‘reform’ of the nation’s criminal justice system that institutionalized the mandatory federal sentencing guidelines that have filled the nation’s federal prisons with low-level drug offenders.”
Lungren liked the name of the Reynolds/Jones bill in addition to the content; it was “catchy.” Lungren’s long-term political aim was to become governor of California, though he would have to wait, he knew, for Pete Wilson either to lose or be term-limited out. In the meantime, he would solidify his image as a hard-nosed crime fighter by lending the expertise of his legal staff to the bill.
Despite Jones’ sponsorship and Lungren’s support, the bill went nowhere. The state assembly’s Public Safety Commission voted not to send it to the full Assembly without modifications that Reynolds refused to accept. The problem with the bill then is the problem with the law today: it was too broad. Unlike Washington’s Three Strikes law, which reserved a sentence of 25 years to life for violent third felonies, the Reynolds/Jones bill sought the same sentence for serious and/or violent third felonies, and a misdemeanor could be bumped up to a felony if the criminal had a similar offense on his record. Thus, a person with no history of violence could be struck out. Further, it required those convicted of a second-strike offense to receive double time and to serve at least 80 percent of it. Reynolds called this second-strike provision “the genius of the law” because it would keep criminals locked up during their “most prolific years.”
Despite a setback at the hands of the public safety committee, Reynolds decided to continue pushing the bill, both in the legislature and as a ballot initiative. To get the initiative on the ballot, he would have to gather 365,000 signatures. And there would have to be a catalyst, something that would stimulate interest in the bill and catapult it through the legislature and the initiative process. The spark was a murder as tragic as that of Kimber Reynolds that garnered massive media attention and raised the ire of the state and the nation.
— — —
On the night of Oct. 1, 1993, 12-year-old Polly Klaas was kidnapped from her mother’s home in Petaluma by Richard Allen Davis—like Joseph Michael Davis, a repeat offender. Two months passed before Richard Allen Davis was arrested and led authorities to Klaas’ remains at an abandoned sawmill.
In the meantime, an exhaustive search ensued: hundreds of volunteers joined local and federal law enforcement agencies, the Coast Guard, and even the Navy Seals in looking for Klaas. Her kidnapping attracted the national media; People magazine labeled her “America’s Child.” She became the face of missing children everywhere and proof of the apparent need for more and tougher crime legislation.
Jones reintroduced the Reynolds bill in March 1994, and this time the public safety committee voted almost unanimously to send it to the Assembly and then the Senate, where it was lauded and applauded by Republicans and Democrats alike. With all of the media attention being paid to Polly Klaas’ kidnapping and murder, Reynolds and his supporters gathered 840,000 signatures, more than twice the number needed to place the initiative on the ballot.
Governor Pete Wilson signed the bill into law in the same month it was reintroduced—not a word was changed in the process.
In fact, there had been four alternatives to the Reynolds/Jones bill. The most viable was a bill introduced by Richard Rainey, a conservative Republican assemblyman and former Contra Costa County sheriff. The Rainey bill was modeled after Washington’s law—one had to commit a violent crime in order to get a sentence of 25 to life, and there was no provision for second strikes. But Governor Wilson asked Rainey to withdraw it, and Rainey, unwilling to trouble the waters in an election year, complied.
In November 1994, Proposition 184—the Reynolds/Jones bill—was ratified by an overwhelming 72 percent of California voters. Now, it would take a two-thirds vote in the legislature and the governor’s signature to amend or repeal the law. Unless, that is, opponents of three strikes could raise the funds and gather the necessary signatures to get their own initiative passed.
— — —
On a sunny day in early August, five weeks after visiting my relative, I sit on a bench in front of the Old Monterey Jail—California’s first jail—a simple stone building constructed in 1854 that now holds city employees. To my left is Colton Hall, where California’s first constitution was written.
Justice has come a long way in California in the past 150 years: from a stone jailhouse with six cells to 86 facilities. The state has been on a prison-building spree since 1980, having constructed 21 prisons—at a cost to taxpayers of $5.3 billion—the prison population has grown sevenfold. During this two-decade binge, prison spending increased by a staggering 240 percent, while funding for higher education stagnated, increasing by just 1 percent. (Is it any wonder that fees continue to go up in both the UC and CSU systems and at community colleges?) The construction and maintenance of prisons, along with the high cost of warehousing prisoners—now up to $31,000 a year per prisoner—has no doubt contributed to the state’s fiscal nightmare. The trend is not restricted to California, however; over the past 20 years, in every state in the nation, the number of prisoners—and prisons to warehouse them—has exploded. The US now spends over $40 billion annually on prisons.
Yet the California Department of Corrections (CDC) plans to open another prison, DELANO II, at the end of June, 2005, a maximum-security institution that will house 5,000 inmates and raise the state’s maximum capacity to 176,500. The price tag, according to the CDC’s Margot Bach, is $365 million. I am in Monterey waiting for Joe Klaas, Polly Klaas’ grandfather, for whom fixing California’s Three Strikes law has become a passion. Klaas suggested we meet here to discuss Proposition 66, which is the work of the organization he helped found—Citizens Against Violent Crime (CAVC). As Klaas points out, it’s a fitting place to talk about an amendment to the Constitution: Colton Hall itself is being renovated, temporarily fitted with plywood and caution tape.
Klaas wears a white beard with a mustache that curls slightly at the ends and sounds a little like John Wayne. Unlike Wayne, however, whose war-hero image was a product of Hollywood, Klaas served during World War II as a pilot, including a year with the Royal Air Force. He spent 25 months in a POW camp in Poland—where, he says, “I suffered atrocities”—an experience that he memorialized in Maybe I’m Dead, one of four books he’s written.
“I’ve always been interested in justice and freedom,” he says. “God knows, I fought for it and served time in a prison camp, and I know what it’s like.”
If Klaas weren’t such a straight-shooter, he’d be an enigma. After all, his 12-year-old granddaughter was murdered by a repeat offender, a man who would’ve been behind bars had Three Strikes been in place in 1993, and yet he’s doing everything in his power to amend the law. It’s hard to understand why he would give his life to such a cause.
“I just cannot tolerate confinement, or torture, or certainly treating minor criminals like major criminals—that doesn’t make sense to me,” he says. Despite a recent heart attack, he continues to travel all over the state to raise awareness about Prop. 66.
After Polly’s murder, Klaas supported Three Strikes.
“I was all for it for a couple of months because no one ever mentioned nonviolent crime,” he says. “Then I read the petition that I had already signed, and it said, ‘Serious or violent crime.’ So I wondered, what’s the difference?”
Klaas decided to do a little digging. “I asked a newspaper reporter from The Argus in Petaluma, and we looked it up in a law book and found that ‘serious’ covers a whole lot of things that aren’t violent and that, when it comes to the third strike, a misdemeanor becomes a felony. So all of a sudden a lot of people are getting 25 years to life for misdemeanors.”
Klaas feels that his granddaughter’s murder has been exploited—first in 1994 by the proponents of Three Strikes, and now by those opposing Prop. 66.
“You don’t have to put half the population of the state in prison to get at people like [Richard Allen] Davis,” Klaas has said. “All you have to do is get at people like Davis.”
No one can accuse Klaas of being soft on crime. The founding of CAVC in 1999 was, according to the group’s Web site, “in direct response to the ineffective and overly liberal approach being taken by other groups seeking to amend the 3-Strikes [sic] law.” In fact, the amendment increases the penalty for certain crimes.
“As far as child molestation is concerned—sex crimes against children—our amendment strengthens the law,” says Klaas. “If it’s a child under ten—first strike, first offense—25 years to life. If a child is from 11 to 14, whoever perpetrates the sexual offense is eligible for 12 years on the first strike and 25 years to life the second time.” CAVC’s mission, then, is to ensure that the time fits the crime, so to speak.
“We want the Three Strikes law to focus only on violent crime—it’s that simple—and not waste resources on nonviolent crime. We need more cops on the beat, our streets need repairing, our cities’ budgets are all being cut…why are we spending this enormous amount of money on prisons?”
The amendment has come under fire from Californians United for Public Safety (CUPS), an umbrella group including the California District Attorneys Association, the prison guards union, and victims and children’s rights organizations which, one would think, would be in favor of harsher sentences for sex crimes against children. CUPS claims that some 26,000 prisoners will be released if the amendment passes, including notorious criminals like Kenneth Parnell and Charles Rothenberg. Klaas says the amendment applies only to nonviolent offenders, none of whom will be released without first being resentenced.
More than two hundred organizations support the amendment, including the ACLU, which studied the number of prisoners who could be resentenced. According to Klaas, the ACLU found there are “3,500 to 4,000 people serving 25 years to life for nonviolent offenses who would be eligible for resentencing, and that’s all.”
Of the claim made by CUPS, he says, “The idea that we’re letting out a bunch of rapists and murderers is totally exaggerated.”
— — —
Sherri Hall, administrative assistant to Monterey County District Attorney Dean Flippo, escorts me to a modular unit serving as the DA’s temporary home. Hall leads me to Flippo’s corner office and remains there throughout the course of the interview. I ask the DA how many Three Strikes cases have been tried in Monterey County.
According to the CDC’s Data Analysis Unit, as of March 31, 2004, there were 27 people from Monterey County serving Three Strikes sentences. Of those, one was for rape. Six third strike convictions were handed out for residential burglary. One man received his third strike for petty theft.
Although Flippo does not give Three Strikes sentences as often as DA’s in counties such as Sacramento or Los Angeles, he wants to keep the law as it’s written. Like Klaas, he’s become a crusader. He talks to service clubs and plans to write editorials for the local papers. Why? Perhaps because, in addition to the 27 men who have been struck out, there are 233 others from Monterey County serving double time for second-strike convictions—what Mike Reynolds called “the genius of the law.” These men have been “removed out of circulation,” Flippo says. That, he believes, is where you “really start cutting into recidivism.”
Proponents of Three Strikes say it has reduced crime in California. Flippo lists numbers as if there is a direct and indisputable correlation between Three Strikes and the state’s crime rate which, along with crime rates nationwide, has gone down over the past decade. I ask whether there might be other factors involved. “I don’t think there’s any single cause why crime goes up or why crime goes down,” he says.
Franklin Zimring, a UC Berkeley professor and criminologist, conducted thorough studies on the impact of Three Strikes in California. If Three Strikes were an effective deterrent, then those targeted by it would be committing significantly less crime, and that’s not the case. In a 1999 study, Zimring found that the rate at which repeat offenders committed new felonies had remained about the same, despite Three Strikes.
— — —
Thomas Williams calls me from the Correctional Training Facility in Soledad, one of two CDC facilities there (the other is Salinas Valley State Prison). In the mid-eighties, Williams, from Los Angeles County, was convicted twice for residential burglary. He managed to stay clean until about ten years later, when he was convicted of receiving stolen property, a misdemeanor. “Because I had a prior for receiving [stolen property] on my jacket, they made it a felony,” Williams says. It’s a classic case of a wobbler. His third strike offense: buying a stolen bicycle.
“I was walking down the street one morning and this guy came up to me on a bicycle,” Williams says. “I didn’t know him, I’d never kicked it with him, but I’d seen him around the neighborhood. He asked me if I wanted to buy this bicycle. I said, ‘How much?’ He said, ‘$30.’ I had $25 and offered him $20, and he took it. Then about five minutes later the cops rolled up with a little boy in the back.”
The boy identified the bicycle as his, and the police took Williams into custody. They charged Williams with robbery, though “even the little boy said I wasn’t the one who took it,” Williams says.
The robbery charge didn’t stick, so instead Williams was charged with receiving stolen property. Because of his prior conviction for receiving, Williams was struck out and is now in the ninth year of a 25 to life sentence.
When people hear Williams’s story, they invariably ask, “Did he know the bike was stolen?” The question is understandable but misses the point, which should not be whether Williams is guilty but rather why his life was essentially taken from him for a petty crime. We might ask too whether Three Strikes serves justice or the criminal justice system, whether we approve of a law that has struck out thousands of people for nonviolent offenses: Johnny Quirino of Bakersfield for petty theft of razor blades; Ruben Arriaga of Farmersville for stealing a $70 drill from Sears; Steven Bell of Placer County for taking a bike out of a garage…and the list goes on.
— — —
Recently, I got a letter from my relative from his new home. The transfer he’d been so eagerly awaiting finally went through. His high expectations have been met. “Life is good…” he writes. “I go to yard every day for four hours and walk and do exercises around the track. I have a radio, some professional walking shoes, and a really swell set of headphones. Life is sweet...”
Whether things are as grand as they appear or whether he’s embellishing so I won’t worry too much is unclear. I’m heartened when I read passages like this one: “There is a solid, established program here. I like the fact that most of these guys keep their faces out of mine and let me do my own time.” Yet I have to wonder when he adds, “On the crappy days I like to beat the pavement for a few miles to relieve the stresses of being imprisoned.” The “stresses” stem from being housed in a gym with 160 fellow prisoners, all of them sleeping in triple-stacked bunk beds.
He includes with his letter the CDC’s Inmate Visiting Guidelines. I’ve told him during a number of phone conversations—he can now make collect calls—that I’ll visit soon. This time, I’ll actually be able to shake his hand, to embrace him, to sit with him for a couple of hours. We’ll munch on chips and drink sodas from the vending machines. I’ll wonder how to advise and console him when he mentions his ex-girlfriend and the daughter he’s never seen because his ex refuses to visit him.
They say that desperate times call for desperate measures.
My relative, like many others, committed an act of desperation
and regrets it every day, I am sure. Desperate times, it
seems, also call for desperate ballot measures.