DAN MORAIN: Sometimes 'three strikes' sentences go too far

October 12, 2012 

Howard Broadman doesn't second-guess decisions he made during the 13 years he spent as a Tulare County judge.

He has no doubts about ordering a woman convicted of child abuse to use a contraceptive implant. The man who impregnated a 13-year-old girl deserved to be chemically castrated.

There is, however, one exception. Broadman sentenced Shane Taylor to 25 years to life in prison under California's "three strikes" law for possession of 0.14 grams of methamphetamine, an amount that is equivalent to a tenth of a sugar packet.

Taylor deserved a prison term, Broadman said, but not 25 years to life. "Shane Taylor was a mistake," Broadman said. "It was a mistake."

Taylor's case is one of many exhibits in the campaign for Proposition 36, an unusual initiative on the Nov. 6 ballot that would alter but certainly not gut California's "three strikes" law.

The coalition supporting the measure includes Los Angeles District Attorney Steve Cooley, whose office has sent more miscreants to prison under "three strikes" than any other. Liberal billionaire George Soros has given $1 million to campaign for it.

The initiative grew out of a project at Stanford Law School where faculty and students represent three-strikers. David W. Mills, a wealthy investor who teaches criminal law at Stanford and focuses on white-collar criminal issues, has given almost $1 million to the Yes on 36 effort.

Mills is a civil libertarian who is co-chairman of the board of the NAACP Legal Defense Fund, which is among the backers. He took up "three strikes" as a cause after seeing that the law falls hardest on poor blacks and Latinos, many of them serving life sentences for petty crimes.

"This kind of pain, a life sentence, should be reserved for only the worst of us," Mills said.

In 1994, Californians approved "three strikes," the most punitive sentencing law of its type in the nation. It authorizes judges to send recidivists to prison for 25 years to life if they've been convicted of two serious or violent felonies, followed by a third felony, including those that are relatively minor.

About 9,000 inmates, enough to fill two of California's 33 prisons, are serving 25 years to life in prison under the "three strikes" law, at an average annual cost of $55,527. Most have earned their sentences by proving they cannot stop thieving and hurting others. But some have no history of violence.

Three-time losers would no longer be sent to prison for 25 years to life if they have no history of violence, and their third strike is for petty theft, simple drug possession or some other minor offense.

A guy like Shane Taylor should have spent a few years in prison, Broadman said. His rap sheet included convictions for burglary and attempted burglary committed 11 days apart in 1988 when he was 19 and, for the most part, homeless. He stole a checkbook and forged a check to pay for a pizza.

Eight years later, in June 1996, the one-time pizza thief was drinking beer with friends near Porterville. Police pulled up and discovered his meth. Taylor remained free on bail and was working while the charges were pending. He made it to every court appearance. Broadman asked him why he hadn't fled. "I came back because I had faith in the system," Taylor said.

Shortly before the sentencing, the state Supreme Court granted judges authority to disregard prior strikes. Broadman didn't fully grasp the ruling's significance and imposed the maximum "three strikes" sentence on Taylor.

Broadman took a disability retirement in 1999, and has become an arbitrator in Visalia, but couldn't stop thinking about Taylor.

A decade later, Broadman read about Stanford Law School's "three strikes" project and called attorney Michael Romano, a lecturer who oversees the effort. Broadman urged Romano to take on Taylor's case.

Romano is a former journalist who graduated from Stanford Law School. He became interested in the issue in 2004 while clerking for a judge on the 9th U.S. Circuit Court of Appeals, and saw that the court rejected the appeal of a third-striker who was serving 25 years to life for aiding in the sale of a $5 rock of cocaine to an undercover cop.

Romano persuaded his alma mater to establish the "three strikes" project in 2006 and allow him to teach a seminar in which students are assigned to three-strikers' cases under his tutelage.

This year's cases include one person who stole a pair of gloves from a Home Depot. Another had 0.03 grams of meth, the residue on the inside of a plastic bag. A third is mentally ill and possessed a stolen computer worth about $200. They have no history of violence. All are serving 25 years to life.

Romano expects the students will be the best advocates the three-strikers ever have had. He and his assistant, Susan Champion, and their students have helped free 23 third-strikers. One is the man who initially lost his appeal of the life sentence for aiding in the sale of the $5 rock of cocaine. Only one of the 23 has reoffended, for drug possession.

Taylor seemed ideal for the project. Broadman submitted a declaration lamenting his decision. Students investigated Taylor's history, finding his mother sold drugs and herself. When Taylor got in her hair, she would give him meth or marijuana and tell him to leave. Romano filed appeals to the state and U.S. supreme courts. They rejected his appeal.

Taylor will remain in prison for years unless Proposition 36 passes. He is one of as many as 3,000 third-strikers whose crimes were nonviolent and whose third strike was minor and would become eligible to have judges review their sentences if voters approve Proposition 36.

Romano has given the students an assignment for the night of Nov. 6. He will be holding a gathering and expects them all to attend. I hope it will be a victory party.

E-mail: dmorain@sacbee.com. Twitter: @DanielMorain.

THE SACRAMENTO BEE

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