THREE STRIKES, A BAD LAW WITH NO REFORMS IN SIGHT

NEW YORK -- Two months ago, the U.S. 9th Circuit Court of Appeals ruled
that a shoplifter who had been given a three-strikes life sentence in
California for stealing $153 worth of videotapes had received a cruel and
unusual punishment. Yet, despite this decision, the political leadership
in Sacramento still shows no sign of being ready to abandon the
ill-considered law. State Atty. Gen. Bill Lockyer has made it a policy to
defend all such three-strikes convictions, and thus it appears likely that
the appellate court's ruling will be challenged all the way to the U.S.
Supreme Court. Meanwhile, with vocal defenders of the law like California
Secretary of State Bill Jones opposing three-strikes reform, thousands of
men continue to eke out lost lives behind bars.

One of those men is Billy Ochoa. Over the past few years, while writing a
book on the reasons America's prison population has grown so large, I have
gotten to know Billy well, visiting him several times in prison, talking to
him on the phone and corresponding by mail. I was first drawn to his case
because it seemed outlandish. I quickly learned it was all too commonplace
- -- an emblem of what has gone wrong with parts of our country's
criminal-justice system.

Five and a half years ago, Billy Ochoa was sentenced to 326 years in prison
by a judge in Los Angeles. Ochoa was 53 at the time, a heroin addict who'd
never, as an adult, been convicted of a violent crime. In the years since,
he has lived in supermax housing at prisons like New Folsom and Corcoran,
often locked in his cell for all but one hour a day. Occasionally he's
allowed to play a game of handball in the prison yard. More often, he sits
in his cell idling away the hours watching television or reading popular
novels.

It is costing the state about $50,000 a year to keep Ochoa inside these
ultra-secure prisons. If he lives into his 70s, California's taxpayers
will spend more than $1 million on his incarceration.

As the recession has come into full bloom, politicians across the country
have begun looking for ways to scale back their budgets. And, because
prison expenditures have risen some 500% in the past 20 years, many states
are now reexamining some of their more draconian criminal-justice policies,
laws that were crafted at the height of the public panic over a perceived
epidemic of lawlessness. After all, crime rates haven't been so low in
decades, and opinion polls are finding that the electorate is now far more
concerned about terrorism and a slumping economy than about crime.

Looking for ways to trim its corrections budget, Alabama recently passed a
law allowing nonviolent inmates who had been sentenced to life under that
state's habitual-offender statute to be released early through parole
hearings. Last summer, Louisiana abolished mandatory minimum sentences for
dozens of nonviolent crimes. In Wisconsin, there is open discussion on
ending "fail 'em and jail 'em" mandatory minimums for low-level drug offenders.

But even as conservative Southern states like Alabama are reevaluating
their habitual-offender laws, California has shown little impulse to
discard its catch-all three-strikes law. The state certainly has a
financial incentive to revisit the policy. Last August, the Washington
D.C.-based Sentencing Project issued a report titled "Aging Behind Bars:
'Three Strikes' Seven Years Later." The authors estimated that, with 1,200
three strikes inmates a year currently entering the California prison
system, by the year 2026 the state would be imprisoning an estimated 30,000
three-strikers "at a conservative cost of $750 million annually."

Ochoa's story is a prime example of why this law must change. Because he
is a three-striker newly sentenced to a long prison term, he is
automatically deemed a flight risk and thus has been placed in the
highest-security prisons in the state. But, Ochoa doesn't fit the profile
of the kind of hard-core criminal three strikes was intended to permanently
remove from the streets. He's just a short man with bad teeth, gray hair
and a noticeable potbelly whose habit led him to numerous arrests for drug
possession and small-time burglaries.

When Ochoa was last arrested (in the Northern California town of Arcadia
under the pseudonym of Richard Guttierez), it was because his parole
officer had discovered that he had applied for food stamps and
emergency-shelter vouchers under 13 aliases. When his drug cravings grew
too strong, he would head to a welfare office and apply for emergency
aid. He then sold his food stamps to get money for heroin.

Ochoa's behavior was certainly seedy and illegal. But it was not the
action of a master criminal.

In total, his fraud is estimated to have cost the government $2,100. Even
the prosecutor's office recognized that the crimes were "wobblers" --
actions that, at the discretion of the district attorney's office, could
either be tried as high-level misdemeanors or as felonies. But because
Ochoa had a string of prior convictions, the case was prosecuted under
three strikes. Ultimately, he received 13 three-strikes sentences, each of
25 years, to be served consecutively, with an additional year thrown in
because he had been on parole for a similar crime at the time of his rearrest.

The dirty little secret of California's three-strikes law is that it has
always caught more petty criminals and repeat nuisances in its net than it
has murderers, kidnappers and rapists. As of mid-2001, 6,700 Californians,
more than 2,700 of them from Los Angeles County, had "struck out." Only
42% of the offenses for which they received third strike sentences were
crimes against persons. The rest were crimes a lot like Ochoa's. Slightly
more than 1,100 were burglaries; more than 300 were petty theft with a
prior; 200 were vehicle thefts; 35 were for driving while intoxicated; 60
for forgery or fraud. And the list goes on. For these acts the
perpetrators are now serving life sentences. Moreover, fully 70% of
strikeouts are handed down to African American and Latino men, most of whom
were too poor to afford private lawyers.

But, despite the grim statistics over eight years, three strikes remains
politically unchallengeable. The law was wielded to devastating effect by
California's former Gov. Pete Wilson as the symbol of his "tough-on-crime"
leadership during his 1994 gubernatorial campaign. Since then, politicians
across the spectrum have feared arousing the wrath of the electorate by
even broaching the subject of modifying it. Indeed, Democratic Gov. Gray
Davis has been one of its staunchest defenders.

Now, more than ever, though, with America fighting a war to defend its
values and its liberties, our criminal-justice system should be above
reproach. Clumsy, discriminatory, vengeful laws like three strikes serve
only to weaken our country's claims to represent the best and noblest
impulses of the human spirit. On every level -- from the financial cost to
the morally corrosive impact of such disproportionate punishment -- handing
out life sentences to men like Ochoa is wrong. It is long past time for
the Legislature to admit this folly and rectify the damage.