Pubdate: Sun, 23 May 2010
Source: New York Times Magazine (NY)
Page: MM40
Copyright: 2010 The New York Times Company
Note: The New York Times Magazine is a section of the Sunday edition 
of the New York Times
Author: Emily Bazelon
Note: Emily Bazelon, a contributing writer, is a senior editor at 
Slate and the Truman Capote law-and-media fellow at Yale Law School.
Video: Norman Williams talks about being released from prison after 
being sentenced to life
Bookmark: (Mandatory Minimum Sentencing)
Bookmark: (Incarceration)


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 

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.
- ---
MAP posted-by: Richard Lake