Content warning: Sexual violence
Earlier this year, the United Nations Human Rights Council released a special report focused on poverty and human rights in the United States. For those accustomed to viewing the United States as one of the world’s wealthiest countries, it may have seemed incongruous to read the words “poverty” and “United States” in the same sentence. For those anxiously watching the ever-widening chasm between rich and poor in the United States, though, the report offered a sobering reminder of the current state of our nation. With about 40 million Americans living in poverty, the United States has one of the highest rates of income inequality among Western countries, including more than 5 million of us living in “Third World conditions of absolute poverty.”
The report went on to trace one of the root causes of poverty to a number of problematic aspects of our criminal justice system. For example, despite increasing empirical evidence suggesting that large-scale incarceration is not an effective means of protecting public safety, widespread changes in criminal law and policy have nevertheless been largely responsible for a 500 percent increase in the number of people incarcerated in the U.S. over the last 40 years. As a result of these trends, we now incarcerate a larger share of our population than any other country in the world. Despite accounting for just more than 4 percent of the world’s total population, the U.S. is also home to the world’s largest incarcerated population — 2.3 million people. Moreover, it is estimated that an astonishingly high number of Americans — somewhere between 70 and 100 million of us, by some accounts — has some kind of criminal record. In Alameda County alone, an estimated 375,000 people have a criminal record — nearly as many people as live in the entire city of Oakland.
One of the major causes of the epidemic of mass incarceration in the United States is the too-often reactionary nature of criminal justice policy. Again and again, opportunistic partisans and politicians, eager to appear “tough on crime,” have advocated for so-called “reform” measures as a visceral response to individual, sensational cases, largely without regard for the potential impacts on the criminal justice system as a whole. A seminal case in point is California’s Three Strikes law, enacted in 1994, just a year after the horrific murder of 12-year-old Polly Klaas, who was abducted at knifepoint from her bedroom in suburban Petaluma before being strangled to death by Richard Allen Davis, a “repeat offender” with prior convictions for burglary and kidnapping. With public outrage over the kidnapping and murder still fresh in the minds of voters, the sentencing law, touted by its proponents as the “toughest sentencing law in the nation,” passed, despite its estimated price tag in the billions of dollars. Then-governor Pete Wilson defended the law’s huge economic costs by categorizing the measure as a vital investment in the state’s future and drawing parallels between the construction of new prisons to the building of the University of California and the state aqueduct system in earlier generations.
Opponents of the measure criticized in particular the provision that triggered a mandatory life sentence for any third felony conviction as being overly broad and likely to lead to prison overcrowding, arguing instead that an individual’s “third strike” should have to be for a “serious or violent offense” in order to justify imprisonment for life.
In the law’s aftermath, it soon became apparent that these concerns were indeed well-founded — instead of a corresponding reduction in violent crime, the more immediate result was a glut of individuals being put away for relatively petty crimes, such as then 39-year-old Eroll Bagner, sentenced to 35 years to life for stealing two boxes of candy and a case of beer from a Smart & Final store in Oakland, or then 29-year-old Christopher Michael Parra, also sentenced to 35 years to life after being tackled by security guards during an unsuccessful attempt to flee with a handful of gold rings taken from the jewelry case at the Montgomery Ward store in Fremont.
In the end, nearly 20 years would elapse before California voters would eventually pass Proposition 36, which amended the Three Strikes law to generally require an individual’s “third strike” to be for a serious or violent offense before triggering a mandatory life sentence, but not before nearly 9,000 individuals had already been sentenced to life in prison under the provisions of the original, flawed law.
Now consider the recent infamous case of Brock Turner, an undergraduate student at Stanford University, convicted in 2016 of three counts of felony sexual assault for sexually penetrating an unconscious 22-year-old woman with his fingers. After the convictions, Santa Clara County Superior Court Judge Aaron Persky adopted the recommendations of the county’s probation department and sentenced Turner to six months in the county jail and three years of felony probation, along with mandatory participation in a sex offender treatment program and a lifetime sex offender registration requirement. As in the case of Richard Allen Davis, public outrage again erupted, this time fueled by the widespread publication of the heart-rending, deeply emotional statement given by the victim of Turner’s crimes at his sentencing hearing.
In response, state legislators voted to expand California’s definition of rape to include digital penetration and to eliminate the possibility of probation for individuals convicted of sexually assaulting an unconscious or intoxicated person. In addition to the legislative amendments, a furious recall campaign against Persky also ensued, focused almost exclusively on the Turner case and largely ignoring impassioned pleas from judges, prosecutors and defense attorneys alike about the critical importance of maintaining judicial independence. Two years after Turner’s sentencing, just under 60 percent of voters voted to recall Persky, making him the first judge to be recalled in California in more than 80 years and the first in the United States since 1977.
As in the case of Richard Allen Davis, the response in the Turner case was a visceral reaction to an emotional situation that had absolutely no impact on either the actual result of the case or the harm caused by the crime. More importantly, in both cases, the criminal justice system was altered with disregard for the systemic impact of the actions being taken purportedly in the name of reform. Like the continued accumulation of sediment over time, the result of such reactionary decisions, made again and again in response to individual sensational cases, is their eventual solidification into the muddled bedrock that undergirds our uniquely American system of mass incarceration.
Tony Cheng is the Director of the Youth Defender Clinic at the East Bay Community Law Center and a lecturer at the UC Berkeley School of Law.