Justice Anthony Kennedy, a member of the majority, told the annual meeting of the American Bar Association that same year that it’s “a grave mistake to retain a policy just because a court finds it constitutional. Courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just.”13 So why did Kennedy speak one way and vote another? He’d already freely and frequently expressed his opinion that criminal justice statutes were far too punitive. But though he disapproved of the three-strikes law as written, he decided he couldn’t find anything downright illegal about it. Taking a strict constructionist posture, he decided that California bore the responsibility for amending its bad law. As long as an unwise law was written correctly, Kennedy and other jurists like him would uphold it. To do otherwise would be to legislate from the bench. Kennedy’s position makes sense in the abstract but looks terribly deficient down on the ground, where people are seeking justice. And if sentencing a man to a life term for shoplifting nine videocassettes isn’t the “cruel and unusual punishment” that’s expressly forbidden in the Constitution, then what is?
Harsher penalties for repeat offenders weren’t invented with the three-strikes laws. The concept is more than a century old. But previously judges were allowed discretion. It was most unlikely that anyone would be sentenced to life for stealing a pizza slice because that would defy common sense. Aleksandr Solzhenitsyn wrote about impoverished Soviet factory girls who would smuggle out a spool of thread between their breasts. Thousands were caught. The standard sentence was ten years. Many were worked and starved to death before they could complete their terms. The history of humankind teems with forgotten souls like these factory girls. But the United States, founded on higher ideals, was supposed to rise above such barbarities.
When California voters approved the Three Strikes and You’re Out initiative with a whopping 72 percent of the vote, they assumed it was the same law as its Washington state predecessor, passed a year earlier. When the idea was originally suggested, backers in California talked only about violent offenses. But the substance of the proposal was changed, and not everyone received the news. California was the place where three strikes met Frankenstein’s monster. He came in the form of an ex-con named Joe Davis.14
Davis, a twenty-five-year-old habitual criminal and crystal meth addict, was with his partner, Douglas Walker, on a stolen motorbike in June 1992 when they pulled up to Kimber Reynolds in Fresno. Reynolds, eighteen, was leaving a stylish restaurant with a friend and about to get into her car, which was parked directly in front of the restaurant on a busy street. A student at the Los Angeles Fashion Institute of Design and Merchandising, Reynolds had come back to her home-town for another friend’s wedding. Davis, who’d been paroled two months earlier from Wasco State Prison where he’d served time for auto theft, tugged at Reynolds’s purse. Reynolds tugged back, and in full view of about twenty witnesses, Davis brought a .357 magnum pistol up to her ear and fired, mortally wounding her. The next day a Fresno special weapons and tactics (SWAT) team cornered Davis in his girlfriend’s apartment, and when he tried to shoot his way out, they killed him.
Reynolds’s father, Mike Reynolds, a wedding photographer, outraged by this tragedy, began talking about his daughter in the mass media. The loquacious father became a sought-after personality on right-wing talk radio, a burgeoning force at the time. He was a perfect fit for these shows, which liked to keep issues and solutions simple. Reynolds’s simple solution: keep criminals locked up. In addition to his media blitz, he pitched his idea in the state capital, Sacramento, where he and his new political friends put together Proposition 184, Three Strikes and You’re Out.
Joining forces with Reynolds and his radio hosts was the California prison guards union, which contributed $100,000 to the cause and formed a straw group called Crime Victims United. The National Rifle Association, which seeks to fight crime by making guns and ammo more available, tossed $130,000 into the initiative drive.
The initiative process, often hailed as a great hallmark of democracy, had by this time established itself as a kind of uninformed tyranny in California. Traditionally, legislation is passed through a responsible legislative body that conducted research, held hearings, asked intelligent questions, and picked the brains of experts.
In October 1993, sixteen months after Kimber Reynolds was murdered in Fresno, a sociopath and repeat offender named Richard Davis (no relation to Joe) snatched twelve-year-old Polly Klaas from a slumber party in a middle-class section of Petaluma, California.15 Davis, who had an amazing history of evading arrest and sensible sentencing, drove off with Klaas, almost certainly raped her, then murdered her and dumped her body at an abandoned sawmill. It was a signature evil deed, a parent’s worst nightmare.
A couple months later, after much police blundering, Davis was tracked down. He confessed and led police to where he’d stashed Polly Klaas’s body. The Klaas murder on top of the Reynolds killing had voters itching to do something, and on Election Day, the three-strikes initiative was there, just waiting for their OK. Voters approved it overwhelmingly, but few noticed that Klaas’s father had come out against it. Bereaved and crushed but nevertheless thoughtful, he was shocked by its draconian provisions.
Although California voters ultimately moderated the three-strikes law in 2012, other states continued enforcing harsher provisions. In 2013, Louisiana, for example, was still following a broad three-strikes law passed in 1994 that enabled courts to impose life terms for petty crimes, even if none of the strikes involved violence. Under the provisions of this law, James Belt was sentenced to life without parole in 1999 for selling ten dollars’ worth of crack to an undercover cop.16 He was thirty-seven and had been fighting a crack addiction for six years. His two previous convictions were for stealing a credit card from his college roommate and burglarizing a friend’s house for drug money—ugly crimes for sure, but not life-in-prison sorts of crimes. Unfortunately, no one has been able to find any mistakes in Belt’s case. Apparently the court followed the letter of the law. So Belt and others like him languish, as forgotten as the Soviet factory girls who’d been banished to the Gulag for stealing spools of thread.
7
Divine Right Prosecutors
HAD YOU CHECKED THE WEBSITE OF THE TULARE COUNTY, CALIFORNIA, DIStrict Attorney’s Office in November 2012, you’d have seen a studio portrait of a smiling, middle-aged, balding man with a closely trimmed white beard. He wore a dark suit and appropriately somber tie. A U.S. flag dangled on a pole behind his right shoulder. The man was District Attorney Phillip Cline, a member in good standing of both the local Rotary Club and Chamber of Commerce. (Cline announced his retirement in October 2012, effective in December, approximately two years before the end of his term.) Before becoming district attorney, the site would have told you, Cline “specialized in the prosecution of homicide cases and won a number of high-profile death penalty cases.” His office’s mission was “to represent the people of the State of California in an efficient, effective and ethical manner.”1
Nowhere did the site mention that five years earlier, in 2007, a state appellate court determined that as a deputy prosecutor two decades earlier, Cline had withheld a vital audiotaped statement from a key witness that pointed to a murder defendant’s innocence. But the discovery was made too late. By that time defendant Mark Sodersten had died in prison, having served twenty-two years for a crime he almost certainly didn’t commit. Sodersten’s death turned the smothered evidence into what the law calls a moot point. However, the appellate court was so upset by the finding that it made the ruling anyway—a highly unusual decision that at least put Cline’s deeds on the record.2 Cline had sought the death penalty for Sodersten.