Any burglary below first degree is what lawyers call a “wobbler.” It could constitute either a misdemeanor or a felony. Prosecutors filing for first degree can just lean back and wait; unlike an overwhelming majority of defendants, they don’t have to sleep in a cell with their head next to a toilet while the case works its way through the court. Meanwhile, defense attorneys often represent clients who may have committed a crime, but that crime is not necessarily the one they are charged with, thanks to loose and varied interpretations of the law.
In 1947, when Vittorio De Sica made his landmark film The Bicycle Thief, he’d never have guessed that his American liberators would corral their own underclass in an environment as unforgiving as the one he showed us in desperately poor postwar Italy. Welcome to the nightmare of Chris Martinez, the unemployed construction worker I mentioned in chapter 1.10 Martinez wheeled a beat-up, rusted bicycle with a broken chain and two flat tires out of an open garage in Manhattan Beach, California, and abandoned it after the owner, standing on a balcony, called out to him. It started out as a stupid prank but ended up as a definable crime. A small-time offender arrested by police later in connection with an unrelated incident sought a better deal for himself by identifying Martinez as a bicycle thief.
The prosecutor offered Martinez, then twenty-four, a sentence of nine years and four months, “and the public defender said it was a good deal I should sign,” Martinez recalled. “At that point my maximum amount of time was twenty years.” A lawyer friend of the family took over and bargained the deal down to six years, with a minimum of three and a half to be served. Martinez accepted. You might say he got lucky—if you think doing three and a half years in prison for almost stealing a twenty-dollar bicycle is lucky. Did anyone viewing De Sica’s movie imagine that his Italian bicycle thief would end up serving such an irrational sentence? Probably not.
Martinez’s bicycle sentence came courtesy of the three-strikes law, and with it came a second strike. If he were arrested for a third nonviolent offense today, after the passage of the Proposition 36 reform measure, he could still receive a much harsher-than-ordinary sentence—perhaps life. His first strike was also for a residential burglary. The prosecutor on that case agreed to release him with time served (two months in county jail) if he accepted the strike on his record in exchange. To a defendant in county jail, that can seem like a good deal, but down the road it may start to feel like a payday loan carrying enormous interest. “I have no record of violence,” Martinez pointed out. “Matter of fact, I’ve never been arrested for anything of the sort. Somehow I’m one strike away from a life sentence.”
I’ve known Martinez, a good-natured neighborhood kid, since he was twelve, but like most of his acquaintances, I never took serious notice of his problems, even though I was aware that his father died young and that the death inflicted awful damage on the family’s finances and Martinez’s upbringing. Shortly before the bicycle incident, Martinez came by the house with my son. I asked if anyone was interested in some leftover pasta we had sitting in the refrigerator. Martinez ended up eating what must have been a half gallon of the stuff. He was half-starved. We need to do something about this, I remember thinking. I knew he’d dropped out of community college to work construction jobs, but by this time the Great Recession was forcing people out of their jobs and homes, and construction contracts were becoming scarce. Although I didn’t know it at the time, Martinez was penniless and had no one to fall back on. He shared a small flat with an ex-girlfriend too kindhearted to kick him out. I had plenty on my mind, and although I’m not proud of it, the next time I heard about Martinez, he was in county jail looking at a possible twenty years. Martinez served his three and a half years for almost stealing a bicycle and upon release was admitted as a charity resident into the Beit T’Shuvah substance abuse program in Los Angeles. The last time I talked to him he was employed as a truck driver for the organization’s two thrift shops. He finished the 2013 Los Angeles Marathon, and his life had taken a more hopeful, productive turn.
I’ve spoken with a number of two-strikers now out in the world. Their descriptions of their lives are remarkably similar to Martinez’s. No matter how determined they might be to mend their ways and stay out of prison, they live in mortal fear of police contact, believing that if they’re involved in any sort of fracas, they’ll be blamed because of their record. They try to stay away from places—bars, for example—where trouble is more likely to occur. But ex-convicts, usually at the bottom of the socioeconomic ladder, tend to live in neighborhoods that middle-class citizens drive through with windows up and doors locked. For these ex-cons, it’s virtually impossible to avoid trouble spots. Trouble spots are right outside their front door.
In addition, an opposite, ugly side of the two-strikers’ existence can make some of them extraordinarily dangerous to others. Because they can get a twenty-five-year sentence for a pinch of dope, any confrontation with police is hugely risky. Convicts and ex-convicts know that police officers are sometimes attacked and even killed because the three-strikes decrees make life-and-death situations out of minor infractions. They assume that if an officer of the law has been assaulted and perhaps killed for attempting to make a routine arrest or during an ordinary stop of a pedestrian or vehicle, it’s because some desperate ex-felon feared triggering that third strike and decided, why not just point and shoot?
A 2004 study found that in California, 57 percent of inmates serving twenty-five years to life for a third strike triggered the penalty with a nonviolent offense.11 Once you’ve done time alongside a convict who will die in prison because he was arrested for possession of a dime bag of heroin or shoplifted a pocket calculator, you’ve absorbed a lesson you won’t soon forget.
Can two-strikers move elsewhere to escape the sword of Damocles? Yes and no. In early 2013, a total of twenty-six states had habitual offender statutes. They practice reciprocity.
In 1995 a California court, using the state’s 1994 three-strikes law as its foundation, sentenced Leonardo Andrade, a thirty-seven-year-old heroin addict, to fifty years to life for shoplifting nine videocassettes worth $153.53.12 An army veteran, Andrade had a long string of petty offenses on his record, but none was violent. Opponents of the habitual-offender law saw Andrade’s case as an excellent wrench to throw into the three-strikes machinery, and in 2001 they thought they’d won the argument when an appellate court threw out the sentence as excessive. But two years later, in a decision that essentially upheld thousands of life sentences, the U.S. Supreme Court ruled 5-4 that Andrade’s trial and sentencing had met every legal test.