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Prison Crisis: Long Sentences, More Prisoners
Wednesday, October 7, 2009
Determinate sentencing, get-tough enhancements to prison sentences and the enactment of California's Three Strikes initiative in 1994 have combined to greatly expand the prison population, advance the age of California's inmates and produce an overcrowded, dangerous system the state can no longer afford.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. In the late 1980s, a presidential candidate used the image of a revolving door in a campaign ad to imply that prison sentences were too short and criminals were being let loose to prey upon the public. The Willie Horton ad was severely criticized, but it apparently hit a nerve. Around that time, California and other states started to change their laws to make prison sentences longer. They began taking away judges’ discretion in sentencing, imposed mandatory minimums, enacted life sentences with no possibility of parole, and here in California, began executing prisoners again. This tough-on-crime trend reached its peak with the Three Strikes law, designed to keep career criminals in prison for a very long time. Supporters of these lengthy sentences claim they maintain public safety. Critics challenge that claim. But one thing is undeniable, longer sentences and tight parole restrictions have sent California's prison population skyrocketing to the point where the federal government has now stepped in with an order that the state must release some prisoners to ease severe prison overcrowding. As our series on the problems in California’s prisons continues, we'll discuss whether now is the time for the state to re-examine its sentencing laws. We have a number of guests joining us on this topic this morning but first I’d like to welcome Ryan King, policy analyst for The Sentencing Project. Ryan, good morning and welcome to These Days.
RYAN KING (Policy Analyst, The Sentencing Project): Good morning. Thank you for having me.
CAVANAUGH: And I want to invite our listeners to join the conversation. Do you think California’s tough prison sentencing laws have been a success? You can call us with your questions or your comments. The number is 1-888-895-5727. Now, Ryan, your organization, The Sentencing Project, works for reform in sentencing laws around the country, alternatives to incarceration. I’m wondering if you can take us back a bit and tell us where this national trend toward harsher and longer prison sentences came from? Let – About 20 years ago, were prisoners really being released too soon?
KING: Well, it actually goes back to this point, about 40 years ago. I mean, in the early 1970s and there was a – prior to that point prison was sort of seen as a – supposed to be a last resort, and the goal was to keep people in the community. There was also a belief of one could use prison as a tool of rehabilitation. For a number of reasons of which we don’t have enough time or – to go to in this show, the political culture sort of shifted and it became much more about let’s just keep people in prison, it’s about incapacitation rather than rehabilitation, and there were a number of laws and political changes, legislative changes, that came out of that. And most notably, the overall goal was to put more people in prison, mandatory sentencing, tougher sentencing guidelines, resulting in longer prison sentences, more people going to prison admission wise, staying there longer periods of time, and then also complementary was that in many cases either an abolition of parole or a great restriction of the use of parole as a means of governing the prison population and, thus, we had fewer exits and that also contributing to the prison population.
CAVANAUGH: I understand that The Sentencing Project is also concerned with racial inequalities in sentencing and also imprisonment for drug offenses.
KING: Well, one of the biggest offense areas that contributed to this growth has been in the area of drug offenses. It was – really began in the early 1980s with the federal pronouncement of the war on drugs and what that was followed up with was tens of millions of dollars that was being invested in the enforcement of drug laws. Law enforcement followed suit and so we saw the huge spikes in drug arrests, many more people going to prison and staying there for very long periods of time. That was when you really hear about mandatory minimum sentences, people being sentenced to five, ten year mandatories, strictly based on the quantity of the drugs for which they’ve been arrested with no real consideration of the role they played in the offense. And then, of course, you mentioned racial disparity which is lamentably inextricably linked to the criminal justice system and probably most pronounced among drug offenses.
CAVANAUGH: Now how do you see California fitting into these trends that you’ve been describing?
KING: Well, California, I think you can take all of these and kind of amplify them because that’s what has happened in California. Where nationally there was tough on crime movement, California was toughest. Where nationally there was a movement toward the restriction of parole, California, in many cases, took it to the next level. So we saw, for example, in the mid-1990s, you mentioned, Three Strikes and also I would mention Two Strikes, too, which is an enhancement for second strikers of offense links by a doubling. And as of June of this year, there were about 32,000 people serving a second strike sentence so that’s a doubling of what they would have served had they not been a second strike. And about 8400 people serving a third strike of 25-to-life. That has been – had a significant impact. Particularly in California, what has differed among Three Strikes is that that third strike doesn’t necessarily need to be a serious or violent offense so you’ve had people, for example, notable cases of people being sentenced to 25-to-life for the theft of a slice of pizza, for example, something like that. More life sentences in California, they’re being used at a significant rate there. And you had prior governors who have made declarations essentially refusing to permit parole for individuals who are serving life with eligibility for parole, so that has contributed to the population. And then I think most notably in California has been the parole system. California has had a significant increase in parole revocations as a proportion of prison admissions. I just want to throw this out there, in 1980, 79% of admissions to California state prisons were for new commitments, so those were commitments of a new offense and not – did not involve a person on parole, whereas once you fast forward 20 years, 57% of prison admissions in 2000 were for technical violations of parole by persons on parole, so that could be failing some sort of requirement. Most frequently, it’s a failure of a drug test. So there’s a real question about whether prison is the right place for somebody who’s violating parole but there’s no question that the parole violation and parole system’s been a huge, huge contributor to the prison growth in California.
CAVANAUGH: I’m speaking Ryan King. He’s with the organization The Sentencing Project. Ryan, you know, some people would say most of the people in prison are right where they should be; when they’re in prison, they’re not messing up anybody else’s life. So how does your organization counter the idea that long sentences are a good thing? Do we pay some kind of price by locking so many people up for so long?
KING: Well, we absolutely do. And I would also – I wouldn’t agree with that first premise. And just briefly, when you take a look, there are 2.3 million people in prison and jail. A significant portion of them do not belong in prison. You could start with the half a million drug offenders in there and there are a significant number of those that would be much better in community supervision and treatment. You could take a look at the people that are being revoked out of probation or parole back into prison for violations and take a look at whether those individuals, intermediate sanctions would have served better. So there is the admissions issue and I would argue that a huge number of those individuals would be better served in some sort of community supervision environment rather than simply being incarcerated. And then, most notably, the sentence length issue. There’s a real question and there’s no evidence in the literature that, for example, sentencing somebody to ten years versus five really has much more of an impact. Sentence length is not a huge predictor of recidivism. Sending people away for very, very long periods of time has not been show to have any more of an impact on the crime rate than sending people away for a short period of time. The certainty of punishment has a far greater impact on crime than the severity of punishment and unfortunately that’s a message that has not gotten through in terms of how our criminal justice system has been designed.
CAVANAUGH: Ryan, you know that California is in the process now of trying to institute some reforms to come into compliance with a federal order that the prison population has to be decreased. If you were to give some advice to the legislature, what would you – what do you think California should do to modify its penal system?
KING: Well, I think, first of all, you need to revisit the parole and probation supervision, revocation procedures. They’re – As I mentioned, there’s just far too many people being revoked back to prison. Investing in an intermediate sanctions – people, keeping people in the community, connected, hopefully, with work and other community services are a key area for California. But you’re not going to have a sustainable reduction of the prison population without revisiting the sentencing laws. You can do all the tweaking with drug treatment for your low level, nonviolent drug offenders, you can address all these revocations, and those are positive and are necessary steps but you need to revisit the prison population, who’s going into prison and what they’re going in for and whether prison is really the appropriate – first of all, whether prison is appropriate and, if so, are the sentences proportional to the offense for which an individual has been convicted. And I think what would be a key contributor to that would be to have a sentencing commission, and that’s been a bone of contention in the legislative efforts in this current session, but a sentencing commission in place to review the system from top to bottom, really looking about what type of punishment are individuals receiving in California and ensuring that while people are being held accountable while not being forced to face punishments that are disproportionately severe for the – to their conduct.
CAVANAUGH: Ryan, thank you so much for speaking with us this morning.
KING: My pleasure, thank you.
CAVANAUGH: I’ve been speaking with Ryan King, policy analyst for The Sentencing Project. We’re joined now by two new guests. I’d like to welcome Paul Pfingst, former San Diego County district attorney, now criminal defense attorney. Paul, welcome to These Days.
PAUL PFINGST (Attorney): Thank you.
CAVANAUGH: And Gary Nichols is a San Diego County Public Defender’s office (sic). Gary, good morning.
GARY NICHOLS (Public Defender, San Diego County): Good morning.
CAVANAUGH: I’d like you first of all to give me a reaction to what you’ve heard from Ryan, and I want to start with you, Paul, if you can.
PFINGST: There was one real big thing missing in that analysis and it is, has there been a substantial reduction in crime since these sentences have increased? Because right now, we are in a position where the crime rate in San Diego County, the crime rate in the state of California, has been reduced over half since these laws were passed. And that is probably something that should factor into a discussion because if you ignore that, you ignore a number of things. One of the things you ignore is that the community that is most hit by high crime rates are the poor, underserved, black, brown communities, and those are the communities that have actually seen the most drastic reduction in crime rates. Now these are fair discussions to have, and I don’t quarrel with the numbers that were put forward, just saying that if I lived in a community – and La Jolla doesn’t have a high crime rate, never did, Del Mar, the same way, Encinitas and the affluent areas don’t, but if I lived in another community, in southeast San Diego and various other communities and I saw my crime rate being reduced 70%, I would find then maybe these sentencing laws do make some sense. Is there a potential for overkill? Absolutely. And I opposed the Three Strikes law when it was on the ballot when I was running for office as district attorney because I thought it threw the net too wide. But if we ignore the fact that the public has seen a reduction in crime in our discussion, then the public won’t listen to any recommendations that we make, in my judgment.
CAVANAUGH: And Gary.
NICHOLS: Well, I think that the analysis, other than taking into account the crime rate, as Paul said, is pretty good. The thing that we’re facing now is how much are we willing to pay to lock people up forever and have we really engaged in overkill in sentences? Can we afford to continue putting people in prison for 100 years to life for stealing property in a nonviolent manner? That’s something that the people of the state and the legislature is going to have to address when they look at this but I think the recommendation for a sentencing commission to look at the big picture is an excellent suggestion and one that has been proposed before but, unfortunately, is opposed in many sectors but I think it would be one that would work.
PFINGST: As a practical matter, the legislature will not reduce sentences. They’re too scared. They’re afraid they’re going to run for office, there’s going to be a 30 second spot saying you reduced this person’s sentence, oh, my God, look what you did. You should – you’re not fit for office. The only people who can reduce sentences in the State of California are the same people who increased them, and that’s the voters. So what’s going to be required, as a practical matter, is some plan being put before the voters and if the voters accept it then there’s a whole lot of reform that can be done. Our sentencing laws are incoherent, they’re complex, they’re a patchwork of all sorts of things that have snuck in there by various legislators at varied times that can be changed. But as a practical matter, the voters have constantly said we want these sentences, and we live in a democratic society so what do we do? At what point do we say that the voters, okay, are – have said we have a change of heart? And if the voters say we have a change of heart, then I think we’ll see change. If they don’t, we won’t.
CAVANAUGH: We have a lot more to talk about. We have to take a short break though. We will return and talk about sentencing laws in California, and we’ll start taking your calls. You’re listening to These Days on KPBS.
CAVANAUGH: I'm Maureen Cavanaugh. You're listening to These Days on KPBS. We’re talking about sentencing laws as our week long series on California prisons continues. My guests are Paul Pfingst, former San Diego County district attorney, now criminal defense attorney, and Gary Nichols, from San Diego County’s Public Defender’s office. We’re taking your calls at 1-888-895-5727. Paul, I want to talk a little bit more about what you alluded to in the first part of our discussion about your initial reaction to the Three Strikes law when you were district attorney here in San Diego.
PFINGST: I campaigned against it and the public rejected my first piece of advice and passed it. And I agreed that when the public, when the voters directly vote for a proposition, it is the duty of the elected representatives to enforce it and to enforce it vigorously because the public is entitled to experiment with things and to try out things. And if they don’t work out, then the public can change them later. So as a result of that, we instituted Three Strikes policies and so on, consistent with what the public wanted and I warned at the time that this is a big net and eventually the numbers are going to add up, and here we are. So now the question is, in my mind, having had the benefit of a long look at this policy, should policies now be changed by the voters who enacted them? And if the voters show that there is a desire to make some changes and listen to the recommendations of some other people, then those recommendations may happen. I argued the first Three Strikes case in the California Supreme Court. It was the Romero case, and it had to do with whether the judges had independent authority to strike a prior strike. I argued on behalf of the voters that that power was removed from the courts. The courts don’t like to hear they can’t do something. It’s not one of the more favored arguments when you’re in the Supreme Court. They’re pretty confident that they have a lot of stuff that they can do, and I’d like to say that I was a uniter not a divider and the court decided unanimously that they still had the power to strike strikes and I brought consensus to the court. Okay.
CAVANAUGH: Thank you. Thank you for that, Mr. Pfingst. Gary, you joined in on this, the quest to modify the Three Strikes law in California but I’m wondering, to your knowledge, are there people who were locked up in 1994 for minor offenses under the Three Strikes law that are still in prison?
NICHOLS: Oh, sure. I have the file of one man in particular that’s been on my credenza since 1996 or ‘97 at least. His name is Garland. He’ll be 60 years old next year, same month I turn 60 years old. And he’s been in since 1994 for attempting to steal a pair of sunglasses out of a parked car. His two prior strikes were an attempted residential burglary and a completed residential burglary. The rest of his rather long but inauspicious criminal history was all property and drug crimes. He’d never committed a violent crime, never used a weapon, never hurt anybody. It was all because of his drug addiction and the property crimes that he committed to support it. And Garland’s still in. I’ve tried repeatedly to get him out and Mr. Pfingst’s administration didn’t want to assist me in that regard. Ms. Dumanis’ administration has rejected my overtures previously. I’m going to visit them again on that. And Garland has been doing as well as one can do in state prison. He has 15 years worth of positive chronos in his file commending him for the good works he’s done in prison, and he’s got a loving family that would love to have him out. But we’re still keeping him there.
PFINGST: And this case presents the paradox, and the voters have spoken on the paradox. This man had a lifelong history of crime. He was doing life on the installment plan. And he would be released, he would commit a crime, he would get arrested, he’d go to jail, he’d get out, he’d go to prison, he’d get out, he’d go to prison, and get out. And what the public said with the Three Strikes law is enough of that type of thing because every time we release you, you commit felonies and this is what we want to do with you. We want to lock you up. Now the question is, the governor and the state is faced with a prison population that is unsupportable unless we build gazillions more beds, which we’re not going to do because we don’t have any money. What is the state going to do with a prison population that so far exceeds what was designed and which the federal courts have said must be reduced? How will we go about reducing that? Will the public say, through its elected representatives, or will it say through a ballot initiative, that this is how we want to do it? Or is some other mechanism going to be used, because something has to be done. The federal courts have said so. And the hard part is, this audience generally is not an audience that has been very supportive of Three Strikes types of laws. However, this is a sort of a small sliver of the San Diego, California community. There is still very strong support inside this state, polling shows, for tough on crime laws. So what – we’re in a paradox and we don’t know – Where do we turn? The elected representatives have to follow the voters, the voters kept telling them to do things, and then the money does – isn’t there so what happens? And that’s where we are.
CAVANAUGH: And the KPBS audience is very varied, Paul.
PFINGST: Yeah, well, I don’t know. I think it’s varied to the left as opposed to other audiences which – in the county which are varied to the right, but perhaps my demographics…
CAVANAUGH: Beware of assumptions.
PFINGST: …are off. Well, yes, I probably should but I think a lot of your listeners would probably agree with me.
CAVANAUGH: Well, Gary, I want to make it clear, too, it’s not just Three Strikes that have happened in the last years, there’ve been also sentence enhancements that the voters have approved of and that have been added onto certain crimes. What has that done, too, when it comes down to sentencing?
NICHOLS: Well a lot of these sentence enhancements are for – some are for recidivism, some are for the way crimes are committed. For instance, if you use a gun, your sentence goes up. And I think most people, even criminal defense lawyers, don’t disagree that, for instance, if you use a gun, your sentence ought to go up. But the problem that we see is that, way too often, the enhancement swallows the crime itself so, for instance, you can – you do an assault with a firearm, you get a fixed number of years for the assault and you get life for the firearm use. And so those are things that just keep piling on and piling on with…
PFINGST: These sentencing laws are insanely complex. We all agree with that. It takes a Ph.D. in sentencing to understand the sentencing laws. For judges, prosecutors, defense attorneys and everybody else, they become incomprehensible.
NICHOLS: For several years, one of my partners in the Public Defender’s office and I edited annually a book that is put out by what’s called the Continuing Education of the Bar, the CEB, which is an organization, it’s a nonprofit that is in conjunction – well, the California State Bar in conjunction with the University of California puts it out. And we wrote the chapter or edited the chapter on sentencing in a large book and the sentencing chapter is always the largest. That’s why there were two of us doing it until we got it in shape. Now Mr. Brainard does it himself. But it’s just insanely complex and it just…
PFINGST: It didn’t used to be that way.
NICHOLS: And it…
PFINGST: It our lifetime, it used to be murder was the worst crime. That was a 25-to-life in most states crime, first degree murder. Then below that was rape, then robbery, burglary and so on and the laws had some sense of proportion to the offense. Now, what happens is there’s no sense of proportionality to the offense because it’s become a technical add-on here, an enhancement here, an allegation here, and so on, and so it’s very difficult – You’ll find somebody who commits a large number or a significant number of small crimes is treated more harshly than someone who commits their first first degree murder.
NICHOLS: I represented a client who was convicted of two murders. He’s serving 52 years to life. I represented the first person charged under the Three Strikes law in San Diego County and that was for a supermarket robbery. He’s serving 115 years to life. So…
CAVANAUGH: I’m wondering how this works in the real world, when you get a case in the DA’s office, and when you were a DA here in San Diego County, Paul, what do you look at when it comes to what you’re going to ask for in sentencing, how you’re going to charge this particular person who’s coming before you in terms of Three Strikes and sentence enhancements. Do you use it to make deals? Do you have any clear cut guidelines?
PFINGST: Well, when it first came into being, the first thing I did is I put out a Three Strikes policy memo and gave it to the defense and said here’s the transparency that I’m going to offer on this. These are our policy guidelines. They’re for you, look at them and if you think we’re violating them then say so, okay. And they got the guidelines and it was subject to discussion and we negotiated back and forth but we put them out and also so the public could see what we were doing and why we were doing it, okay. And as a result of that then we look at it. Now over the period of time, as cases have evolved, judges are more comfortable, some, striking strikes, you know, over the prosecutor’s objection. Others are not. And probably the biggest problem we’re seeing, in my judgment, is that we should try to have a consistent system, that is where if a defendant goes into Courtroom 1, he should be treated the same way as if he goes into Courtroom 2. Yet if you go into Courtroom 1 you may have a judge who strikes strikes and you may walk out with, say, with a five year sentence. If you go into Courtroom 2, you may have a judge who does not strike strikes and you may walk out with a 15 year or 25-to-life sentence. And that disparity is something that’s not right. That’s just wrong. People have to be treated similarly for a couple of good reasons. One is because it’s fair and the second is because generally minority and black and brown individuals don’t get treated as well if there’s a lot of play in the system. The affluent and the white tend to be treated, historically, better. So that’s one of the problems with our sentencing laws right now, as I see it, is that there’s such potential variations inside the sentencing system that people are being treated significantly differently for essentially the same conduct.
CAVANAUGH: And, Gary, when it comes down to the Public Defender’s office, how do you see this? How do you deal with a client who’s possibly up with a second or third strike?
NICHOLS: Well, you have to deal with each case on an individual basis and look at the factors that affect the sentencing decision that’s going to be made by the court. Now, sometimes the court has very little, and sometimes no, option in what they have to do. For instance, under the Three Strikes law, unless the court strikes a strike, a person who’s convicted with one or more strikes, it’s mandatory, send them to prison. The court has no discretion to grant them probation or send them to a rehabilitation facility or something like that. You must send them to prison. So then you get into looking at options like will the judge strike a strike prior in this case so that the person can be sent to some other kind of treatment facility perhaps. And to do that, you pull out everything that you can think of that goes into making that decision. When the Three Strikes law first came down, I sat down and wrote out a list, just sort of off the top of my head and looking at the rules of court that govern felony sentencing, and made a list of 21 reasons that the court might consider in striking – in making the decision to strike a strike. And that is still in use and I still get asked for it to this day, and we’re now 15 years into the Three Strikes law.
CAVANAUGH: Now California voters have already approved an idea to channel some offenders, drug offenders, into treatment instead of into prison, into having that a strike against them. How is that working out?
PFINGST: That all depends on who you ask. I mean, the – I think the numbers are dismal about treatment. We just don’t know a lot about treating people with significant drug treatment. There are two classes of people. There were people who had drug problems who came into the criminal justice system or dealt with it and were never seen from again, okay. And then there were people who have drug problems that they don’t kick, okay. What we’ve seen is, the dropout rate in our – in the drug treatment programs are exceedingly high and when you take a look at the numbers, if you take out the people who otherwise wouldn’t have come back anyhow, even without drug treatment, and you take a look at the other people, I think it’s hard to claim that’s a success. The problem has always been in the criminal justice system, what do you do with these drug addicted people who won’t get off of drugs and commit these low – let’s say, call, low level, some pop up from now and again into high level crimes, but it’s not a low level crime if your house has been burglarized or your car has been burglarized, it’s not a low level crime to you. What do we do with these people? And no one has found a satisfactory answer. The things that do work, what we have learned, is that there’s very strong data to say that what works is creating a reentry program from prisoners being released to prison into the community. There’s very strong, compelling data that that can work. However, that’s expensive, okay, and we tend not to do that. If I were the god of the universe, I would say take all of our rehabilitation money, take all of our drug treatment money, and put it into taking people being released from prison and transitioning them into the communities and I think the long term prospects for that person increase dramatically as opposed to what we do now: Here’s a bus ticket, get out, good luck to you.
CAVANAUGH: Right, and, Gary?
NICHOLS: Well, I have to go the far extreme, I guess. This is the gorilla that’s been sitting in the room for a long time and that is why do we continue the prohibition on the personal use of drugs? I mean, it – My opinion is it harkens back to our puritan heritage but we just can’t seem to leave people alone to go get high as they want to. And if we decriminalized the personal use of most of these drugs, regulated and taxed them, I – we wouldn’t have the prison population that we have. There’s your 40,000 that the federal courts have mandated right now. And the majority of the property crimes that it takes to spend $100.00 for a gram of a substance that legitimately marketed would cost $20.00 is decreased tremendously and you don’t have people like Garland, who I mentioned earlier, who are committing minor property crimes to support their drug use.
CAVANAUGH: I want to get us back, too, Gary to that idea of the 40,000 prisoners that the federal government says have to be released in the next two years from California prisons. You visit the prisons in your job and I’m wondering, have you seen a change over recent years in how crowded these facilities are and what they’re like?
NICHOLS: Certainly. And I do want to make a correction there. The federal courts didn’t mandate that people be released from prison, they mandated that the prison reduce its population.
NICHOLS: That doesn’t necessarily mean open the doors and shoo them into the communities as a lot of people have indicated they think that’s what it means. That’s certainly one way to do it. It’s not a very smart way to do it, and I don’t think that’s the way that California prison authorities are going to choose to do it.
PFINGST: But there…
NICHOLS: But there are a lot of other places to put people.
PFINGST: However, the alternative, in large part, is to cram those prisoners into our local facilities…
NICHOLS: Of course.
PFINGST: …which are overtaxed as well. And then what happens is we find that our local facilities are triple bunking and quadruple, and they’re going up to more and more bunking because the state doesn’t want them. So the problem’s going to come to somebody.
NICHOLS: Of course.
PFINGST: And somebody’s going to have to pay the tab. And if the state wants to cram it down to the local communities, okay, it’s – all it is, is displacing the problem. We really need to overhaul California’s sentencing project. I agree and I know my Democratic colleague over here was talking about taxing drugs and so on and all that, it always comes back to increasing taxes for Democrats, doesn’t it? But what…
NICHOLS: You’re making assumptions again, Paul.
PFINGST: …but what happens is, I think, I’ve said from the beginning the public has experimented with this big lockup program. Now it’s time to see whether they want to continue it, okay. And if they want to continue it, if we want to continue it—I’m a voter, too—if we want to continue it, then we have to say, okay, we’re going to provide the revenue to do it, okay. We can’t have it both ways. I think there are ways to make reductions in prison population without undue risk to public safety. I think the net is too large. I think there – the history is that people do not commit crimes in significant numbers past their 40th birthday. If you wanted to start taking a look at incarcerating people past the age of 40, past their 50s and 60s, the incremental benefits to the community in crime reduction, statistically, is very small. The incremental cost is large. Perhaps those monies could be redirected to other types of programs and I think there are ways to get to do that. I don’t think the public necessarily disagrees. What happens is, they get presented with ballot initiatives that are written by one side or another that don’t allow for nuanced decisions to be made inside the system. It’s sort of – It’s all primary colors. Here, we’re going to be tough, over here it’s too easy, so what we have to really get down is to find that middle ground and give the public an option and, hopefully, they’ll take that option.
CAVANAUGH: And, Gary, I’m going to give you the last word on this be – apparently California voters, the population, does want it both ways. We do – we keep approving these initiatives for longer sentences and yet we don’t want to pay any more money to incarcerate people in a way that’s going to be constitutionally appropriate. So I wonder where is the leadership, if everyone agrees that the sentencing laws are too complicated, where’s the leadership going to come from to start changing this in California?
NICHOLS: That’s a really good question, and I’m honored that you asked me.
PFINGST: Sacramento leadership? What’re you talking about? It’s an oxymoron, isn’t it?
NICHOLS: Well, it appears that right now the leadership is coming from the federal courts, so it’s like, California, you can do it yourself or the federal courts will do it for you. I suggest that we’re a whole lot better off spending our own money in the ways that we decide is appropriate rather than letting the federal courts appoint receivers to spend our money for us, although I must say that the receivers for the medical care system in the state prisons have improved that somewhat. People are now getting medical care but the Department of Corrections seems to be fighting that tooth and nail when they have the opportunity.
PFINGST: And there has to be some stopping of demagoguing the issue and sincere people sitting down and trying to solve it because the demagoguing in the media is so soundbite driven, the most horrible criminal drives the day. This creep up in the northern part of the state who kidnapped that girl, now drives more sentencing policy than sincere people trying to make a decision about how to deal with the difficult decisions of the allocation of resources and the effective allocation of resources. We can’t let one episode drive the entire sentencing structure of a state as large as California without having what we have now.
CAVANAUGH: I’m afraid we’re going to have to leave it there. Thank you both so much. I’ve been speaking with Paul Pfingst, former San Diego County district attorney and now criminal defense attorney, and Gary Nichols, San Diego – from the San Diego County Public Defender’s office. And stay with us because when we return, we will be talking more about sentencing, long sentences in California and how they affect families and communities here in San Diego. You’re listening to These Days on KPBS.
CAVANAUGH: I'm Maureen Cavanaugh. You're listening to These Days on KPBS. Earlier this hour, Ryan King with The Sentencing Project told us there are a disproportionate number of African-American men in America’s prisons. In a moment, we’ll speak with a local man who’s dealing with the effects in his community of the Three Strikes law and other enhanced sentencing laws. But first KPBS Morning Edition anchor, Duane Brown, has prepared a feature report on the role politics has played in the Three Strikes law and the adverse affect it’s had on one San Diego family.
MAE TUCKER (Mother of Three Strikes offender): This thing has just tore my family apart.
DUANE BROWN (KPBS Reporter): Mae Tucker calls it an ungodly law. Her son Antoine is serving 35-years-to-life under Three Strikes. She says Antoine was depressed after losing a friend, an uncle, to murder. He even tried to kill himself. He was on the verge of being evicted from his apartment when he decided to rob someone.
TUCKER: They gave my son two strikes at once on that.
BROWN: California voters passed the Three Strikes law in the spring of 1994. The rationale was to keep repeat violent offenders off the street and away from the public. The law requires a minimum of 25-years-to-life for three-time offenders who commit serious or violent crimes. But Tucker says her son never had trouble with the law. She claims he was falsely accused of a second robbery.
TUCKER: The only reason they allowed this to go to trial was because they said that he was close to the crime scene. But my son say he was nowhere near that crime scene. And when we finally got the GPS log, it backs up what my son says but they won’t give us the radio log because we want to see exactly what that officer was saying because we really believe that once we get that radio log, it’s going to prove that that officer actually wasn’t telling the truth about the situation.
BROWN: Her son Antoine ended up at Corcoran State Prison, one of the toughest in California. It’s also where serial killer Charles Manson is housed. Since the passage of Three Strikes, San Diego County has been one of the toughest enforcers, pursuing life terms for petty thieves as well as violent thugs.
LEO MCELROY (Political Analyst): You’ve got people in prison for stealing a pizza, for stealing wooden pallets, for taking a beer and then not being able to pay for it. Those are life sentence offenses, as ridiculous as it may sound.
BROWN: Leo McElroy says it’s all about politics. He’s a non-partisan political consultant in Sacramento. He also led the fight against the Three Strikes law. He says the prison population is double the system’s capacity and that’s made it tougher to manage and pay for because the state is overloaded with aging prisoners for life.
MCELROY: A friend of mine, who was a former Republican leader in the legislature, told me recently that he believes his party has been drunk for years on the heroin of tough on crime, and it is an addiction that is not limited to Republicans by any means.
BROWN: McElroy was part of a state prison reform group that began the push for determinant sentencing before Three Strikes was passed. The idea was the time should fit the crime.
MCELROY: Determinant sentencing was put in in order to be fair. The problem is the legislature then jumped on it and began kicking those sentences up and up and up, and then Three Strikes became the ultimate kick upward.
BROWN: So do you think this will probably end up back in the hands of voters?
MCELROY: I think it will. I think it has to get back to the hands of voters, and I’m really concerned what the impact will be. It’s very difficult to get voters to say this is something that we’re willing to reform even if it means letting some people out of prison.
BROWN: Mae Tucker would rather see the law repealed than reformed but she says one good thing has come of it. Her family is closer than ever and both of her daughters are considering law degrees. Duane Brown, KPBS News.
CAVANAUGH: You’re listening to These Days and I’m Maureen Cavanaugh. Joining me now is Robert Robinson. He’s senior case manager for United African American Ministerial Action Committee (sic). Robert, you heard Duane’s report with me and you know Mae Tucker, whose interview we just heard. Does your organization know of many in the community affected by lengthy prison sentences?
ROBERT ROBINSON (Senior Case Manager, United African American Ministerial Action Council): Well, thank you. Thanks for having me this morning. I just want to say to the community that we work with large numbers of folks that have been incarcerated in the California Department of Corrections system, and the fallout in the community is humongous, it’s great. It’s unbearable, and it’s hard for us to reach due to the lack of the politics and the legislation that’s set aside by and governed by the State of California.
CAVANAUGH: What kind of effects does this have? We heard from Mae and she says it’s devastated her family. What kind of larger effects?
ROBINSON: Well, on a larger scale, when we talk about the beloved community that was set aside by the great Dr. King, we talk about families being separated, we’re talking about kids being raised by third generation family members, grandmamas, we talk about kids not having fathers in the home, we’re talking about the welfare system is just not – the prison sentencing thing that holds the community at bay and locks the community up, it’s all those other things. Folks can’t get help for their families, medical stuff is down. It’s a devastating effect, I mean even down to the medical aspect of this thing and the sentencing which they won’t even talk about. The federal government has to talk about it, is that with the three judges because of the medical system in the prisons. Here’s what’s so crazy about this in the state of California and we want to go to the HIPAA law and want to go to confidentiality. Heck, when you go into the California Department of Correction, they test you and they test you for everything. But it’s against the law because of confidentiality, they won’t test people for HIV/AIDS. And it’s crazy. And guess who’s dying and guess who’s suffering as we know right here in San Diego County alone that African-American womens (sic) are leading the charge in having infections. So when you’re talking about affecting the community, there’s a vast amount of reasons why these laws need to be changed because these laws are directed directly at people of color. African-American’s leading the charge here. You got over 11,000 people that’s locked up on the Three Strike law. You got Hispanics. Hispanics are way off the chart on this. You got Asian folks. So these folks are eliminated from the system. They won’t ever get back to the system. They won’t ever be able to be counted because the system won’t allow because the first thing they say, well, you’ve got a felony, you can’t participate. So how the system has to change is they can’t get a job. You got a master’s degree and someone comes from prison and they just got out of prison to get a job, guess who’s going to get the job.
ROBINSON: So it’s a alarming affect.
CAVANAUGH: Tell me, how would you like to see the Three Strikes law modified? Would you like to see it eliminated?
ROBINSON: I think it’s crazy to say, I think, I would love to see it eradicated. That would be my first and utmost thing to see. I think that the voters have to be educated because the voters don’t understand the alarming effect that the State of California spent over $400 million on overtime this year alone for…
CAVANAUGH: For prison guards, you mean.
ROBINSON: Yeah, the prison guards. The number one union in the state of California, and they’re guarding our folks and they’re making money off the back of our folks. When you go to Donovan Prison and you look in the parking lot, you think you at some kind of hustler’s ball, the kind of cars that they driving. I mean, let’s be real about it when they talk about that kind of stuff. We know that these folks aren’t bringing in cell phones or bringing narcotics into prison, then who is? That’s what we have to look at.
CAVANAUGH: Now when you say the California voters have to be educated, what you – what you’re talking about, I think, is the fact that people do keep approving initiatives to strengthen sentences and keep the people behind bars for a longer and longer time, and some people would say that that keeps communities safe.
ROBINSON: Well, here’s the thing about that, Maureen, and I was listening to one of your early presenters. Mr. Pfingst, I do know. Mr. Pfingst made a statement about crime and saying keeping crime down, keeping the communities safe, people want to be safe, and he mentioned Del Mar and he mentioned La Jolla. I got to tell you something, I live in a community, and that same community he was talking about, the southeast community, we have probably the lowest crime rate in our community and in the city of San Diego, and that’s not La Jolla. So we keep skewing these numbers. The police department and the court system is not the only reason why crime is down. You got community folks, you got community organizations that work very, very hard at looking at how to do things that will help reduce crime. They have to include us. And this is the problem, we’re never included because we always want to talk about let’s have a safe community and we want to be tough on crime. The judges, let me – let’s get it clear. The judges are not the hammer in the courts. Everybody, even a first year law student know that the DA’s office is the hammer. I’ve been involved in a lot of cases where deals are struck just to keep from getting – they’ll give a person, say, well, we’ll give you two strikes and we’ll give you this and then we’ll give you this amount of time. The deals are struck and nine times out of ten, guess what the judge will do? The judge will take that recommendation and that’s the sentence, so it’s a political thing. Until the legislation decide to change the way the rule work, we are going to stay stuck as a people.
CAVANAUGH: Now I understand that your group, the UAAMAC, is holding a public forum on the Three Strikes law. Can you tell us a little bit about what you’re going to be discussing?
ROBINSON: Sure. Sure, I’ll be more than happy to do that. We are holding a forum at St. Stephens on Imperial Avenue and it’s called the “Three Strikes Town Hall Meeting.” This “Three Strikes Town Hall Meeting” is designed where we are hoping that we have a Assembly person, the Speaker, Bass down, we have Lori Saldana’s coming down, Assembly person. We have two people from the fact group and the statewide coalition that’s dealing with the Three Strikes law, actually one of the mothers that was involved in the Three Strikes law early on. Her name is Sue Reams. She’s going to be down. We’re going to have one of our own persons, Dr. McKinney, Bishop McKinney, he’s over at St. Stephens. He’s going to be on the panel. And we’re asking folks to come out because we want to hear from the experts what we’re talking about and how we need to go about looking at what’s going to be best practices to try to do something about amending this law.
CAVANAUGH: I want to tell everybody once again, that forum is Thursday, October 22nd. It’s at 6:00 p.m. It’s on – it’s at St. Stephens on Imperial Avenue. And we’re just about out of time. I want to thank you so much, Robert Robinson, for coming in and speaking with us.
ROBINSON: I want to thank you for having me.
CAVANAUGH: And I want to thank all of my guests this morning, and I want to remind you that we are going to be talking about California prisons again tomorrow. We wrap up our series with a focus on rehabilitation and parole. And if you didn’t get in to ask us a question on the air this morning, we invite you to go online and post your comments at KPBS.org/TheseDays. You’re listening to These Days. Stay with us for hour two right here on KPBS.
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