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THE PRISONIZATION OF AMERICA AS A SHAMEFUL SOCIAL PROBLEM:
A Review of Hard Time Blues: How Politics Built a Prison Nation


By ELAINE CASSEL


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Friday, Apr. 5, 2002

Sasha Abramsky, Hard Time Blues: How Politics Built a Prison Nation (St. Martin's Press, 2002)

Prisons were first conceived in the United States a little more than 200 years ago. Maybe it makes sense that we created them as an institution, for we have become the leading prison country among civilized nations.

The statistics are staggering. The United States incarcerates more people for more offenses than any other country in the free world--five to eight times more citizens per capita than Western European countries. The American prison population increased 500 percent between 1970 and 2000, doubling in the last decade of the century. More than 2 million men and women are locked up in the U.S. today.

What accounts for this unique and shameful social problem? The answer is partly explained by Sasha Abramsky in Hard Time Blues: How Politics Built a Prison Nation - a well-researched and reported narrative of the recent history that lengthened sentences, built prisons, and resulted in mass incarceration.

The Politics of Prisonization: California's "Three Strikes" Law Is Passed

Abramsky's story begins with the Fresno District Attorney, a Republican named Mike Reynolds, grieving over the senseless death of his daughter, Kimber, at the hand of some thugs in a robbery. Reynolds meets up with the father of Polly Klass - the young girl who in 1993 was kidnapped and murdered by a diagnosed psychopath recently released from prison for another kidnapping and robbery.

Together, they sold the idea of "Three Strikes" to Governor Pete Wilson - who sold it to the legislature which, in turn, agreed to put it on the ballot as Proposition 184. The voters approved it overwhelmingly. Indeed, the California legislative session of 1994 was a virtually one-issue session, with get-tough-on-crime laws abounding. The voters obviously liked the message, for they reelected Wilson in 1994.

Under the California "Three Strikes" law, prison sentences for a second felony conviction are doubled, while a third felony conviction requires a 25-years-to-life sentence. The law's injustice stems partially from the fact that the offenses need not be crimes of violence - the defendant may only have stolen food or groceries, or written a bad check.

The law is also unjust in that it keeps juries in the dark, and ties judges' hands. After a jury finds the defendant guilty of a second or third offense (without being informed of the dire sentencing consequences), the court hands down the sentence. If a prosecutor demands sentencing under Three Strikes, the judge must impose it.

The Rest of the Country Gets on California's "Tough on Crime" Bandwagon

As Abramsky details, Wilson's success inspired politicians of both parties across the country to jump on the harsh sentencing bandwagon. Democrats in the Congress felt the pressure to join the movement. So did the President himself.

During the 1992 presidential race, then-Governor Bill Clinton - a strong proponent of the death penalty - made a highly publicized trip back to Arkansas to sign the death warrant for a brain-damaged murderer. The Clinton-Gore campaign emphasized its strong anti-crime strategy - the mantra of which was, "More police on the streets and more criminals behind bars."

Then, in 1994, Congressional Democrats stole the Republicans' agenda by putting forth an enormous piece of legislation known as the Violent Crime Control Law Enforcement Act. This sweeping body of laws sent money to states for all kinds of anti-crime initiatives, including prison construction. It also created a federal Three Strikes law and expanded the federal death penalty.

During this session, Congress also amended the Anti-Drug Abuse Act of 1988, adding harsher penalties for drug use and dealing. The amendment reflected the Clinton Administration's "One Strike" policy toward public housing tenants. As articulated by the statute, HUD was directed to promulgate provisions in leases that subjected tenants to eviction if any members of their households used drugs--on or off the public housing premises.

The Democrats, Abramsky explains, had co-opted one of the issues nearest and dearest to Republicans: the need for tough crime control and harsh punishment. Across the country, candidates and elected officials were trying to outdo each other in their meanness. Many states enacted their own version of Three Strikes laws, though none was quite as vicious as California's.

The War on Drugs: Getting Tough on Drug Users

Hard Times reports, however, that New York's Draconian drug laws, enacted under Nelson Rockefeller, are just as harsh as Three Strikes laws. They impose sentences of 25 (or even 40) years to life for selling cocaine.

Neither are federal drug sentences known for their leniency. Parole has been abolished and mandatory minimum federal sentences for drug charges lock people up for life for dealing. Unsurprisingly, more than half of federal prisoners and a third of state prisoners are serving time for drug offenses.

Nevertheless, in March of this year, the Federal Sentencing Commission reiterated its support for mandatory minimum sentences for federal drug offenses, and for the disparity in sentences for power and crack cocaine. (Sentences for possession and distribution of crack are many times greater than those for powder cocaine - leading to a predictable racial disparity in sentencing, in which often-white cocaine users serve far less time than crack users, who are more often members of minority groups.)

Since addiction is a lifelong, relapsing disease, the sentencing laws insure the continued prisonization of a large population.

What's Wrong With Tough Justice? Billy Ochoa's Story Illustrates the Problem

In Hard Times, Abramsky juxtaposes the origin of Three Strikes laws with the case of Billy Ochoa - thus adeptly illustrating how the application of the law fails to produce the results suggested by the hard sell. For while the tough sentencing laws were designed for violent killers such as those who took the lives of Polly Klass and Kimber Reynolds, they are more likely to be imposed on men like Billy Ochoa, a career criminal who made a life of burglary, robbery, and welfare fraud.

This fact comes as no surprise to criminologists and statisticians. Only 10 percent of crimes are violent offenses against persons. The remaining 90 percent consists of property and drug offenses. People like Ochoa, a heroin addict who burgled and defrauded to support his habit, not psychopathic rapists and killers, fill the supermax prisons built in California, Texas, and Virginia to prepare for the age of incarceration.

Nevertheless, Ochoa was sentenced, at the age of 53, to 326 years in prison for committing $2,100 of welfare fraud to support his drug habit. He will spend the rest of his life in a supermax prison - where prisoners are confined to tiny cells for 23 hours a day, and never have any human contact unless chained and shackled - at a cost to taxpayers of over $20,000 a year. The Alice-in-Wonderland logic that makes petty theft a felony also turns someone sentenced under Three Strikes into an escape risk deserving of the harshest deprivations penal experts can devise. (The head of Virginia's Department of Corrections, Ronald Angelone, has boasted that the goal of a supermax is to "make life hell" for the inmate.)

Is There Any End In Sight To Harsh Sentencing Laws? Perhaps.

There may be a more humane movement afoot in the birthplace of Three Strikes. In July 2001, California voters implemented Proposition 36, which mandates probation and treatment, rather than jail time, for first- and second-time nonviolent drug offenders. Whether this is a fluke, or a trend toward a more realistic and compassionate response to drug addiction, remains to be seen in the years ahead.

Another hopeful sign for an amelioration or reversal of Three Strikes comes from two federal appeals court decisions in recent months that rejected California's Three Strikes Law as unconstitutional. In Andrade v. Attorney General of the State of California, the Ninth Circuit Court of Appeals held that that a Three Strikes 50-year-to-life sentence for two petty theft convictions violated the Eighth Amendment's prohibition on cruel and unusual punishment, because the punishment was grossly disproportionate to the crime.

Moreover, on February 7 of this year, the same court reaffirmed Andrade in Brown v. Mayle and Bray v. Ylst (two cases that were consolidated for appeal). The court held that the appellants' life sentences - without any possibility of parole for the first 25 years - violated the Eighth Amendment. Again, the Court employed a proportionality analysis, holding that these sentences were grossly disproportionate to the defendants' petty theft convictions (Brown had tried to steal a steering wheel alarm; Bray, to steal three videotapes).

On April 1 of this year, the Supreme Court announced that it had granted certiorari in Andrade and an earlier Three Strikes sentence case, Ewing v. California (in which the defendant was sentenced to 25-to-life for attempting to steal three golf clubs). Opponents of the law would be foolhardy to think that this Supreme Court will agree with the Ninth Circuit that it is cruel, unusual, or disproportionate to spend 50 years in prison for stealing nine videotapes valued, in total, at $153.54 from two stores on two occasions two weeks apart (as Andrade did).

Rather, the majority of these Justices are likely to conclude that this sentence is not cruel or unusual since several states have such laws. This is the type of reasoning they have used earlier to support capital punishment in general and the execution of mentally retarded persons and teenagers over the age of 17 years in particular.

Given the politics of the current Supreme Court, Abramsky's heartfelt chronicle and criticism of an unjust justice system is in no danger of becoming irrelevant or obsolete. Three Strikes--and One Strike--legacies of 20th century politics, will no doubt be with well into the new millennium. Hard times indeed--and no end in sight.


Elaine Cassel practices law in Virginia and teaches law and psychology. Her textbook, Criminal Behavior (Allyn & Bacon, 2001), explores crime and violence from a developmental perspective. She writes and lectures for continuing legal education courses in election law, Internet law, surveillance and civil liberties, genetics, and health law. She is Vice-Chair of the Behavioral Science Committee of the ABA Science and Technology Law Section and a member of the Section's Privacy and Computer Crime Committees.

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