Three Strikes: Today’s Civil Rights Challenge

California’s mostly minority prisoners

Do you believe that 25 years to life for petty theft or taking a family member’s DMV test is excessive or cruel and unusual punishment? If so, this article was written for you.

Worst criminal law in the nation

California’s Three Strikes and You’re Out sentencing law (Three Strikes) was passed by the Legislature as AB-971 and by voters as Proposition 184 in 1994. The Yes on Prop 184 campaign, mostly funded by the prison guards union, CCPOA, exploited the high-profile abduction, sexual assault and murder of 12-year-old Polly Klass from Petaluma to advertise and market their initiative. The public’s outrage, hoping to eradicate child molesters, rapists and murderers, led to an overwhelming majority, 72 percent, voting for Prop 184.

Ironically, many people still do not realize that predators who pose the greatest danger to society get preferential treatment because they are not sentenced under Three Strikes. For instance, this author’s non-violent petty theft with a prior was “doubled-counted” to transform the misdemeanor into a felony and then used as the basis for a life sentence.

On the other hand, when petty theft is committed after prior convictions for heinous crimes, including child molestation, kidnapping, rape, torture, mayhem, murder and terrorism, then the petty theft can only be charged as a misdemeanor, and cannot trigger any Three Strikes enhancements. So, for example, if this author’s prior convictions had been for kidnapping, child molestation and murder, instead of non-injury robberies, then he could not have been sentenced to 25 years to life for petty theft. Rather, only probation or a maximum 12-month county jail sentence would have been possible.

Also unknown to many voters, Three Strikes is applied in an arbitrary and inconsistent manner among different counties and within counties. For example, when this author was sentenced, the district attorney sought life sentences in most Third Strikes cases. Two years later, a different DA was elected and L.A. County’s Three Strikes policy was greatly changed. Thus, if this author had been sentenced in 2000-2012, instead of 1998, he would not have received 25 years to life for his non-violent property crime.

At the same time, Three Strikes has disproportionately targeted poor minorities. More than 70 percent of the Three Strikes prisoners serving life sentences are either African American or Latino.

Retroactive and far-reaching consequences

The unintended and costly consequences of Three Strikes are enormous! These are a few examples:

• Only the two prior convictions (strikes) need to be serious or violent;
• misdemeanor conduct (wobblers) can trigger a third-strike;
• plea agreements made 1-50 years before Three Strikes was enacted count as strikes;
• some juvenile offenses count as strikes;
• many out-of-state cases are strikes;
• all Three Strikers must serve 100 percent of their sentences and 80 percent of all consecutive enhancements;
• the warehousing of thousands of non-violent Three Strikes inmates has, in part, been the cause of severe prison overcrowding in the California prison system;
• the U.S. Supreme Court ruled that California’s overcrowded prisons contributed to one inmate death a week;
• the state Bureau of Audits has estimated that the additional years Three Strikes prisoners are serving will cost California taxpayers $19.2 billon; and
• various criminologists have found that Three Strikes does not protect public safety as advertised.

Deception defeated Proposition 66

In November 2004, a ballot initiative to modify Three Strikes, Prop. 66, was narrowly defeated, 52.7 to 47.3. Prop. 66 would have required a third strike to be a serious or violent felony. Initially, voters supported Prop. 66 by a margin of 76 to 14.

However, a few days before the election, a last-minute advertising blitz was launched by Pete Wilson, Gov. Arnold Schwarzenegger, Jerry Brown and Henry T. Nicholas III. CCPOA spent $699,000 and Nicholas, the billionaire co-founder of the Broadcom Corp., provided a multi-million dollar donation for the deceptive advertising blitz.

No on Prop. 66 radio and TV ads, alleging that Prop. 66 would release 26,000 violent criminals, was effective in influencing the most dramatic turnaround in California’s ballot initiative history.

The Three Strikes Reform Act of 2012

Man sentenced to life for DUI

On Nov. 6, California residents will have another opportunity to amend Three Strikes.

Prop. 36, which is more conservative than Prop. 66 was, pledges to close the loophole and “restore the original intent of California’s Three Strikes law – imposing life sentences for dangerous criminals like rapists, murderers and child molesters.” If approved by the voters, only about 3,000 out of 8,800 inmates now serving life sentences for non-serious, non-violent and non-sexual offenses will be eligible to apply for re-sentence consideration.

Re-sentencing is not available for felons serving life for a “non-serious, non-violent third strike, if the prior convictions were rape, murder or child molestation.” On a case-by-case basis, a judge must determine that re-sentencing would not pose an unreasonable risk to public safety.

Prop. 36 is supported by a bipartisan group of law enforcement leaders, prosecutors, civil rights organizations etc. It was drafted by attorneys at Stanford Law School and the NAACP Legal Defense Fund, in consultation with law enforcement officers.

In a recent interview David W. Mills, a Stanford Law School professor and private investment manager, stated that his interest in Three Strikes is based upon his long-term interest in civil rights. Professor Mills said that the “dramatic effect on poor people and African Americans” makes Three Strikes one of the leading civil rights issues of today.

Recently, individuals who helped defeat Prop. 66 in 2004 began organizing a “No on Prop. 36” campaign. This time, Nicholas signed the ballot rebuttal argument against Prop. 36 and he’s expected to make a multi-million dollar contribution to help defeat the initiative.

Ironically, on May 14, 2008, a federal complaint was filed against Nicholas, alleging fraud and “improper stock option backdating at Broadcom Corp.” And on June 4, 2008, a grand jury indictment was filed against him for conspiracy, possession, trafficking, distributing and using controlled substances. Did Nicholas get some type of pay-to-play immunity?

We need your help!

To restore civil rights and some integrity to California’s criminal justice system, we need your help.

Inaction by those who can help will make it possible for evil to triumph! Let’s not allow non-violent citizens to continue languishing in atrocious conditions with no hope for their future. Too many have already died.

This quest is within our reach. With modem social network technologies or by helping in other ways, you can become today’s civil rights hero. Let’s get it done together!

This is how we do it:

1. Share this article with as many people as possible, including family members, friends, community leaders etc.;
2. Get all California residents 18 years old and over registered to vote;
3. Go to the official Yes on Prop. 36 website at www.fixthreestrikes.org for donations, resources and answers to questions;
4. Contact Families to Amend California’s Three Strikes (FACTS) at (213) 746-4844 to get involved with your local chapter; and
5. On Nov. 6, even if you can’t vote, get at least 20 people out to vote.

Thank you for your support!

About Kenneth G. Keel

In October 1997, Kenneth Keel was arrested for an alleged petty theft at a K-Mart department store. Soon thereafter, he fired the Public Defender’s Office and represented himself at trial. After a jury found him guilty of one count of petty theft, Mr. Keel received a 25-years-to-life sentence under the “Three Strikes and You’re Out” law.

While fighting for his freedom, Mr. Keel examined his life and determined that it had been pitiful and wasteful. Kenneth Keel embarked upon a transitional path to reconstruct his life. Through a change of mind and heart and through prayer, self-discipline and determination, he found a purpose.

Mr. Keel set goals and took the necessary steps to radically change his life: 1) He got involved with drug education classes, which gave him a foundation for battling his internal demons; 2) he set and achieved his educational goal by earning his GED; 3) he achieved his vocational goal by completing an accredited paralegal studies program; and 4) he achieved spiritual awareness from Systematic Theology classes.

Fully transformed, Mr. Keel has devoted his life to doing whatever he could, from where he is, to help humanity – that is, change the world for the better. He is a firm believer that helping others helps one become a better person. Mr. Keel has spent countless hours providing free legal assistance and tutoring illiterate prisoners. He has authored several articles about California’s Three Strikes law and prison conditions.

This work is the result of a goal Kenneth made at Folsom State Prison, which is regarded throughout history as the “end of the line” for California state prisoners.

By; Kenneth G. Keel

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