Buried alive under California's law of 'three strikes and you're out'
Protest marks 10 years of rule that means decades in jail for minor theft

Dan Glaister in Los Angeles
Monday March 8, 2004
The Guardian

Brian A Smith didn't know the two women who were shoplifting. They were caught on security cameras stealing sheets at the Los Cerritos mall in Los Angeles and received a two-year sentence.

But Smith was seen standing near the shoplifters as they committed their crime. Despite having no stolen goods, he was convicted of aiding and abetting them.

Under California's three strikes law, which marked its 10th anniversary on Sunday, the 30 year old received a 25-year-to-life sentence.

Smith's crime was to have two previous convictions, one 11 years earlier and the second six years before the shoplifting incident. Those convictions, for purse snatching in 1983 and burglary in 1988, earned him the dubious honour of being one of the first criminals to be sentenced under the California law.

By September last year, California, the US state with the highest prison population, had 7,234 prisoners held under the three strikes rule.

Sitting in her Los Angeles home, Smith's aunt, Dorothy Erskine, a retired schoolteacher, recalls the family's reaction to his sentence. "We were, like, is this really happening? I'm sure he was in shock when he was sentenced and thought he could get it reduced on appeal.

"But he was advised not to appeal. And we were told that unless you have about $20,000 (10,800) or $30,000 to pay for the right type of a lawyer, your chances are very, very slim. I did not have $30,000."

Three or four years after he went to prison, Smith suffered a stroke. "They didn't notify anyone in the family that anything had happened to him," said his aunt, "but when I went to visit him and they rolled him down in a wheelchair I knew that something had happened. He says it was like a wake-up call, and he has turned his life to the Lord."

Ms Erskine keeps a picture of her nephew in her living room. Taken with a Polaroid camera in a prison visiting area, it shows a strong-featured young man in jeans and a blue drill shirt standing next to a Christmas tree. His hands behind his back, he smiles tentatively at the camera.

On Saturday, that picture was one of almost a hundred displayed on mock gravestones at a vigil held at Leipert Park in south Los Angeles for prisoners incarcerated under the three strikes law. Each "gravestone" bears witness to the haphazard sentencing under the legislation.

With the slogan Buried Alive! above each name and the case history, the gravestones read like a roll call of the disappeared: Richard Morgan, 25 years for shoplifting a baseball glove; Herman Clifford Smith, 25 years for trying to cash a forged cheque for $193; Gilbert Musgrave, 25 years for possession of a stolen video recorder; George Anderson, 25 years for filing a false driving licence application; Johnny Quirino, 25 years for stealing razor blades; Eric Simmons, 25 years for possessing three stolen ceiling fans.

Under the three strikes law, 25 years means 25 years: prisoners have no chance of parole. The law was voted for in March 1994, under California's proposition system, in which the electorate votes directly for specific policy initiatives. But unlike the three strikes laws operating in some other states, California's version does not restrict the initiative to violent crimes.

Sixty-five per cent of those imprisoned under three strikes in California were convicted of non-violent crimes; 354 of them received 25-years-to-life sentences for petty theft of less than $250.

Campaigners for an amendment to the legislation point out that offenders sentenced under the law for drug possession outnumber those serving sentences for second-degree murder, rape and assault with a deadly weapon combined.

They also point to the cost of the sentencing policy, with the imprisonment of non-violent offenders under the three strikes law estimated to cost the state nearly $1bn a year. With California's budget deficit the subject of intense political activity, they argue that this would be one easy way to save money. The private operators of California's prisons might have a different view of the possible removal of a steady source of long-term income.

Yet there is no indication that the law has decreased crime. Counties in the north of the state which have not used the legislation have seen crime drop by 22% more than the southern Californian counties that have rigidly applied the law. Between 1993 and 2002 New York state, roughly comparable with California, but without a three strikes law, saw its crime rate reduced by 27% more than California's.

The three strikes policy has also disproportionately affected blacks and Hispanics. The African-American incarceration rate is 12 times higher than that for whites, while the rate for Hispanics is 45% higher.

Wearing a black T-shirt bearing the slogan "Let the time fit the crime," Andre Mohamed cries as he talks about his younger brother, Ronnie, 43, nine years into a 37-years-to-life sentence for burglary. "I don't want nobody to hurt like I hurt," said the 48 year old, as the park vigil drew to an end.

"This is something I feel every day. Right now the most important thing that could happen to me wouldn't be winning the lottery, it would be having Sunday dinner with the four Mohamed brothers."

This November, when the country goes to the polls to elect the next president, voters in California will be given the opportunity to amend the three strikes legislation so that it can be applied only in cases of violent crime. Dorothy Erskine is optimistic."Ten years from now we will not have this law as it is," she said."There will not be a 20th anniversary."

But her optimism is laced with fatalism. "I'll be very honest with you. These are the hopes that I have: maybe I'll get $1m in the lottery. But I am a believer, and my hope is in the Lord."

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