ARGUING THREE STRIKES

One day last fall, Norman Williams sat drinking hot chocolate with
his lawyer, Michael Romano, at a Peet's coffee in Palo Alto, Calif.
At an outdoor table, Williams began to talk about how he'd gone from
serving a life sentence at Folsom State Prison to sitting there in
the sun. "After being shut down for so many years.

I didn't believe it," he said of the judge's decision to release him
in April 2009.

Williams, who is 46, was a homeless drug addict in 1997 when he was
convicted of petty theft, for stealing a floor jack from a tow truck.
It was the last step on his path to serving life. In 1982, Williams
burglarized an apartment that was being fumigated: he was hapless
enough to be robbed at gunpoint on his way out, and later he helped
the police recover the stolen property.

In 1992, he stole two hand drills and some other tools from an art
studio attached to a house; the owner confronted him, and he dropped
everything and fled. Still, for the theft of the floor jack, Williams
was sentenced to life in prison under California's repeat-offender
law: three strikes and you're out.

In 2000, three years after Williams went to prison, Steve Cooley
became the district attorney for Los Angeles County. Cooley is a
Republican career prosecutor, but he campaigned against the excesses
of three strikes. "Fix it or lose it," he says of the law. In 2005,
Cooley ordered a review of cases, to identify three-strikes inmates
who had not committed violent crimes and whose life sentences a judge
might deem worthy of second looks.

His staff came up with a list of more than 60 names, including Norman
Williams's.

Romano saw Cooley's list as an opportunity. After working as a
criminal-defense lawyer at a San Francisco firm, he started a clinic
at Stanford Law School in 2006 to appeal the life sentences of some
three-strikes convicts.

In search of clients at the outset, Romano and his students wrote to
Williams at Folsom about the possibility of appealing his conviction.
Most prisoners quickly follow up when the clinic offers free legal
help. But Williams didn't write back. At Peet's, Williams said he'd
been too nervous. "I didn't want to use the wrong words," he said.

"You were lucky you were at Folsom," Romano said. "It's only a couple
of hours' drive from here. So we decided to come up and see you."

"Yeah, if not, I'd still be there, staring at the walls," Williams
said. "Never had visitors before you came. I didn't know what the
visiting room looked like."

IN 1994, the three-strikes ballot measure in California passed with
72 percent of the vote, after the searing murder of 12-year-old Polly
Klaas, who was kidnapped from her slumber party and murdered while
her mother slept down the hall. When the killer turned out to be a
violent offender recently granted parole, support surged for the
three-strikes ballot initiative, which promised to keep "career
criminals who rape women, molest children and commit murder behind
bars where they belong."

The complete text of the bill swept far more broadly.

Under California's version of three strikes, first and second strikes
must be either violent or serious.

These include crimes like murder, attempted murder, rape, child
molestation and armed robbery.

But in California, "serious" is a term of art that can also include
crimes like Norman Williams's nonconfrontational burglaries. And
after a second-strike conviction for such an offense, almost any
infraction beyond jaywalking can trigger a third strike and the life
sentence that goes with it. One of Romano's clients was sentenced to
life for stealing a dollar in change from the coin box of a parked car.

California's repeat-offender law is unique in this stringency.
Twenty-five other states have passed three-strikes laws, but only
California punishes minor crimes with the penalty of a life sentence.
About 3,700 prisoners in the state are serving life for a third
strike that was neither violent nor serious, according to the legal
definition. That's more than 40 percent of the total third-strike
population of about 8,500. Technically, these offenders are eligible
for parole after 20 years, but at the moment, the state parole board
rarely releases any prisoner early.

In 2004, reformers put an initiative on the ballot, Proposition 66,
that would have reduced the number of people going to prison for life
by removing nonviolent property and drug offenses from the list of
three-strikes crimes.

Gov. Arnold Schwarzenegger attacked the ballot measure. He credited
three strikes for a major drop in crime - to the frustration of most
experts, who point out that California's dip began in 1991, well
before three strikes passed, and ended in 2000. "The great weight of
empirical studies discounts the role of three strikes in reducing
crime," states a 2004 report signed by six criminal-law professors,
including Franklin Zimring at U.C. Berkeley. Still, Prop 66 fell
short, with 47 percent of the vote.

Now California is in the midst of fiscal calamity.

Supreme Court Justice Anthony Kennedy, who had been a judge in
California, recently bemoaned state sentencing and spending on prisons.

In an address at Pepperdine University, he said that "the
three-strikes law sponsor is the correctional officers' union, and
that is sick!" And yet Schwarzenegger has vowed not to touch the law.
Meg Whitman and Jerry Brown, the leading Republican and Democratic
contenders to succeed him in November, are just as unbending.

IF THERE'S A WAY to reform three strikes, it may follow Norman
Williams's route out of prison.

Michael Romano, who is 38, got his client released without opposition
from the L.A. district attorney by forging a working relationship
with Cooley's office.

The 63-year-old Republican prosecutor seems an unlikely ally for a
young defense lawyer. He joined the D.A.'s office straight out of law school.

His office notched more death sentences last year than the state of
Texas, and his lunchmates include Pete Wilson, the former governor
who signed three strikes into law. Yet despite his conservative bona
fides, Cooley shares the conviction that some number of third-strike
offenders like Norman Williams don't belong in prison for life.

After three strikes became law, Cooley watched one of his colleagues
in the D.A.'s office prosecute Gregory Taylor, a homeless man who at
dawn one morning in 1997 went to a church where he'd often gotten
meals and pried open the door to its food pantry.

The priest later testified on his behalf.

Taylor's first crime was a purse-snatching; his second was attempting
to steal a wallet.

He didn't hurt anyone. Taylor was sentenced to life. "It was almost
one-upmanship, almost a game - bye-bye for life," Cooley says,
remembering the attitude in the office.

Three years later, Cooley ran for D.A. on a platform of restrained
three-strikes enforcement, calling the law "a necessary weapon, one
that must be used with precision and not in a scatter-gun fashion."
In office, he turned his critique into policy.

The L.A. district attorney's office no longer seeks life sentences
for offenders like Norman Williams or Gregory Taylor. The presumption
is that prosecutors ask for a life sentence only if a third-strike
crime is violent or serious.

Petty thieves and most drug offenders are presumed to merit a double
sentence, the penalty for a second strike, unless their previous
record includes a hard-core crime like murder, armed robbery, sexual
assault or possession of large quantities of drugs. During Cooley's
first year in office, three-strikes convictions in Los Angeles County
triggering life sentences dropped 39 percent.

No other prosecutor's office in California has a written policy like
Cooley's, though a couple of D.A.'s informally exercise similar discretion.

It's a mistake, though, to cast Cooley as a full-tilt reformer.

He opposed Prop 66 for ignoring a defendant's criminal history.

Instead, in 2006, he offered up his own bill, which tracked his
policy as D.A., taking minor drug crimes and petty theft off the list
of three-strikes offenses unless one of the first two strikes
involved a crime that Cooley considers hard-core. For staking out
even this middle ground, Cooley became prosecutor non grata among his
fellow D.A.'s. No district attorney, not even the most liberal,
supported his bill, and it died in Senate committee.

Cooley could once again pay a price for his three-strikes record.
This spring, he announced his candidacy for California attorney
general. His Republican rivals have hammered him for his moderate
stance. "He's acting as an enabler for habitual offenders," State
Senator Tom Harman told me. "I think that's wrong.

I want to put them in prison." The race has developed into a litmus
test: for 15 years, no serious candidate for major statewide office
has dared to criticize three strikes.

If Cooley makes it through his party's primary on June 8 - and
especially if he goes on to win in November - the law will no longer
seem untouchable. If he loses, three strikes will be all the more
difficult to dislodge.

MICHAEL ROMANO has another, complementary strategy for changing the
law. He has won victories for 13 three-strikes lifers in two years, 5
of them with the help of Cooley's office, and he sees that small
number of victories as making a case for larger reform. (He was on a
panel I moderated at Yale Law School last month.) While that may
sound far-fetched, the tactic has worked before.

Romano's boss, Lawrence Marshall, helped prove the innocence of 13
death-row inmates in Illinois in the late 1990s. His work set in
motion a reassessment of the death penalty.

A result was a statewide moratorium on executions that has held for a
decade. "The hardest step is to get people's attention," says
Marshall, associate dean for clinical education at Stanford. "And you
can only get it with sympathetic cases."

Romano started thinking about three strikes when he clerked for Judge
Richard Tallman on the U.S. Court of Appeals for the Ninth Circuit in
2004. One afternoon, Romano watched his boss and two other judges
quickly dispense with routine matters.

One of them was a three-strikes appeal. "This guy, Willie Joseph, was
doing life for aiding and abetting a $5 sale of crack cocaine,"
Romano remembers. Legally speaking, his case for release was so weak
that it took the judges "less than a few minutes" to reject the appeal.

And yet Willie Joseph's life sentence was effectively the same as the
punishment imposed on the most vicious killers in California. While
694 convicted murderers sit on the state's death row, only 13 have
been executed since the Supreme Court allowed for reinstatement of
the death penalty in 1976. The 3,700 nonviolent, nonserious
three-strikers serving life in California outnumber the 3,263
death-row inmates nationwide.

By working with three-strikers, Romano is trying to highlight the
plight of criminals he sees as more pathetic than heinous. "I think
about explaining to my kids what I do, and I see no moral ambiguity,"
Romano says about his work. Capital defendants, of course, deserve
representation, he explains. "But there are other lives to be saved,
of people who haven't done horrible things, who haven't actually hurt anyone."

In practical terms, Romano points out, the difference between being
convicted of capital murder and a small-time third strike is this: a
murderer is entitled to a far greater share of legal resources.
California spends at least $300,000 on the defense side of a capital
murder trial.

The courts give extra scrutiny to each capital appeal that comes
before them. And it's only in death-penalty cases that the state pays
lawyers to file a writ of habeas corpus, the route to challenging a
conviction once direct appeal has been exhausted.

A three-strikes case, by contrast, is just one more file in the stack
on a public defender's desk and a judge's docket.

Romano has a client whose appellate lawyer cut and pasted into her
brief for him the more serious criminal history of another man -
incorrectly telling the judges that her client was far more violent
when he actually was.

In court, Romano and his students don't simply argue that their
clients are minor offenders who don't deserve to spend the rest of
their lives in prison.

That route to release is mostly blocked by the Supreme Court's twin
rulings on three strikes.

In 2003, the justices voted 5-4 to reject the argument that three
strikes violates the Eighth Amendment's protection against
cruel-and-unusual punishment. Because of criminal histories, the high
court let stand the life sentences for Leandro Andrade, convicted of
a third strike when he shoplifted videotapes from two Kmarts, and
Gary Ewing, who walked out of a store with three golf clubs in a leg
of his pants.

But the California Supreme Court has left open a different route to
appeal. In 1998, the court told trial judges who were weighing a bid
for leniency at sentencing after a three-strikes conviction that they
could consider whether a defendant's "background, character and
prospects" place him outside the "spirit" of three strikes.

Romano argues that, as in capital cases, his clients deserve to ask
for lesser sentences based on "mitigating evidence" - often of child
abuse, mental illness or mental retardation. Romano's students track
down clients' old files, ask about their childhoods and pry
confirmation out of family members.

From Norman Williams's juvenile files and probation reports,
Romano's students pieced together a story of unbroken woe. The 8th of
12 children, Williams grew up with a mother who was a binge drinker.

She pimped out Williams and his brothers to men she knew. A social
worker wrote, "These men paid the boys money to perform anal
intercourse on the boys and they . . . gave the money to their mother
for wine." As an adult, Williams became a cocaine addict and lived on
the streets of Long Beach.

Romano's students laid out this mitigating evidence, which hadn't
been introduced at trial, in a 56-page habeas brief before the state
court in Long Beach last year. They got back a one-sentence order
denying their claim.

Frustrated, Romano took the habeas petition to one of Cooley's
deputies, Brentford Ferreira. Would he agree that after 12 years in
prison, Williams had done enough time? Would he say so to the judge?

Ferreira, a 24-year veteran prosecutor, fired back with questions of
his own. "I said, O.K., what you've really shown me is that all this
guy knows how to do is steal," he remembers. "So why should I let him
out? What are you going to do for him?" Romano knew that Ferreira was
right. If just one of his clients got out and hurt someone the whole
project would look menacing rather than crusading.

Defense lawyers don't usually act like social workers, but it was
vital for Romano and his students to come up with a plan and a home
for Williams, from the moment he walked out of Folsom.

Romano's efforts to help Williams succeed on the outside led him to
Eileen Richardson. Once the C.E.O. of Napster, she now runs a
$500,000 program, the Downtown Streets Team, which contracts with the
city of Palo Alto and local nonprofits to provide janitorial
services. The work is done by former offenders and homeless people.
Richardson pays them in rent subsidies and Safeway and Wal-Mart gift
cards. They attend a weekly support meeting and wear different
colored T-shirts as they move up a "ladder of success."

With Richardson's promise to give Williams a try, Romano persuaded
Ferreira to go with him to see the judge in Long Beach. The
prosecutor's support made the difference: Williams was resentenced to
time served.

Shortly after he left Folsom a year ago, he started on the Streets
Team mopping and waxing the floors of a local shelter. Richardson
says Williams hasn't missed a day of work since.

IF STEVE COOLEY wins the Republican primary for attorney general, on
almost every issue - most visibly the death penalty - he'll run to
the right of his probable Democratic opponent, the San Francisco
district attorney Kamala Harris. But on three strikes, Cooley will
run to Harris's left. (She didn't support his 2006 proposal, though
she is one of the prosecutors who, on a case-by-case basis, refrains
from seeking a life sentence for some nonviolent three-strikers.)
It's a reminder of how far the prosecution of Gregory Taylor, the
homeless man who broke into the church, has taken Cooley from the
expected comfort zone of a prosecutor.

Cooley is couching his support for amending three strikes statewide
more carefully during campaign season. "Any changes to the
three-strikes law will have to be in the context of overall prison
reform," he told me in March. At the same time, Romano and Families
to Amend California's Three Strikes, the group that fought for
Proposition 66, are increasingly interested in using Cooley's Los
Angeles policy as the basis for a new statewide reform effort in
2012, because it suggests a way to reserve life sentences for the
three-strikers who have committed crimes of violence.

Between 2001 and 2008, the Los Angeles D.A.'s office automatically
sought life sentences for about 5,400 repeat offenders whose third
strike was violent or serious.

The office also screened 13,900 cases in which the third strike crime
was neither violent nor serious, to find out whether the defendant
had a past record of hard-core crimes. During these years,
prosecutors asked for life in only 25 percent of these cases.

The other 75 percent are the nonviolent three-strikers whom the law
could safely be amended to spare, Romano argues. "Those are the folks
who shouldn't be doing life," he says. If Cooley becomes attorney
general, he'd have more clout to put behind a 2012 reform initiative,
if he chose to.

Norman Williams will soon move into his own apartment in Palo Alto.
None of the other clients for whom the Stanford clinic has won
release have gotten in trouble.

And Romano and his students recently started representing Gregory
Taylor, who is still serving life in San Luis Obispo prison.