Minority report

Experts debate whether Proposition 36’s three-strikes reform will actually address racial inequity in California’s criminal-justice system

Anyone who thinks that the blindfold across Lady Justice’s stone-cold expression spares her from racial bias is smoking the wrong spreadsheet.

Nowhere is this more apparent than in the demographic breakdown of California inmates sent away on 25-years-to-life third-strike convictions. According to the most recent data from the California Department of Corrections and Rehabilitation, 45.5 percent of the state’s 8,813 three-strikers were black. With another 2,262 inmates listed as Hispanic, that makes the state’s three-strikes prison population 71.2 percent brown as of September 2011.

Here in Sacramento County, the racial disparity for African-Americans is even greater. According to the same CDCR report, Sacramento County’s share of the three-strikes population numbered at 565. Blacks accounted for an alarming 55 percent of that total, with 311 interred on third-strike convictions. The remainder of this group consisted of 158 white inmates, 81 Hispanic and 15 who were classified as “other.”

Dozens of studies by just as many organizations and municipalities have already chronicled the effect the state’s three-strikes law continues to have on minority communities and blacks in particular. The Center on Juvenile and Criminal Justice even highlighted this trend way back in 1996, two years after voters adopted the law.

But little has been done to address this out-of-whack racial composition. If anything, the overrepresentation of black inmates has grown slightly worse with time.

In March 2003, blacks made up 44.8 percent of the state’s three-strikes prison population and 52.6 percent of Sacramento County’s share, which then numbered 426 three-strikes inmates.

Even those who oppose Proposition 36, a November ballot initiative to modify the three-strikes law so that potential life terms can’t be handed out for nonserious felonies, think the data is troubling.

“It’s certainly something for society to look at,” said Steve Grippi, assistant chief deputy district attorney for the county.

Grippi didn’t know the local figures when he spoke to SN&R, but claimed race wasn’t a contributing factor that determined whether prosecutors would pursue a third-strike conviction.

What does play a decisive role, Grippi and other DA officials said, is past crimes.

Of those incarcerated on third-strike offenses from Sacramento County, most were for serious or violent felonies, such as robbery, first-degree burglary and assault with a deadly weapon, CDCR records show. But there were also dozens who had been sent away on lifer terms for what appear to be lesser offenses, such as possession of a controlled substance, driving under the influence and one instance of someone selling weed.

A DA official said the office’s current case-management system was unable to look up these three individuals, whose third-strike convictions were for DUI and selling marijuana. The office did make available its criteria for deciding three-strikes cases, however, and provided the identities of the 10 people sentenced on such convictions this year so far.

The office’s criteria for deciding three-strikes cases, developed more than 15 years ago, includes the recency of past crimes, whether the defendant has used violence or weapons, a history of mental illness or drug addiction, and other factors.

Of the 10 defendants sentenced for third-strike convictions in Sacramento County this year, offenses varied from armed robbery and bloody prison attacks to pimping and sexual assaults.

A sewer-treatment employee with a criminal history of arson and first-degree robbery used his position to gain entry to homes and pull off residential burglaries, according to the DA’s office. He was convicted of 11 counts of felony burglary and sentenced to 25 years to life this past May.

Then there’s the case of Ennis Alonso Farmer Jr., sentenced this month to 25 years to life. According to the DA’s office summary, Farmer was stopped for running a red light while driving on a suspended license. After a California Highway Patrol officer had Farmer exit the vehicle for “making suspicious movements” inside the car, Farmer reportedly took off running and chucked a bag filled with cocaine, heroin, methamphetamine scales, other narcotics and items indicating drug sales. A jury found Farmer guilty in July of a half-dozen felony drug charges, as well as individual counts of resisting a peace officer and driving with a suspended license, both misdemeanors.

Farmer’s appearances in Sacramento Superior Court stretch back to 1991, and most of his cases involve felony drug prosecutions. But he also received a 14-year prison stint in 1997 after pleading no contest to nearly 20 counts of robbery and attempted robbery, and for possessing a firearm during the commission of a gang-related crime.

As Supervising Deputy District Attorney Anne Marie Schubert put it, “It’s not the crime, it’s the criminal.”

Yet an awful lot of those criminals end up being black, both here and in other multicultural metropolitan hubs. According to U.S. Census Bureau data, African-Americans make up just a shade less than 11 percent of the 1.43 million people residing in Sacramento County, yet more than half of the county’s three-strikers.

November’s ballot effort to modify the three-strikes law may provide some relief, despite being patterned after a county where the average imprisonment of black three-strikers is higher than both Sacramento and the state’s—Los Angeles.

“In Los Angeles County, they are no longer prosecuting life sentences for nonserious, nonviolent criminals. I don’t think they are or should take race into account,” said Michael Romano, director of the Stanford Law School Three Strikes Project and an architect of the reform effort, along with L.A. County District Attorney Steve Cooley.

Since reports show black and Hispanic men are more likely to be prosecuted on third-strike offenses for nonserious, nonviolent felonies, Romano suggests these minority groups stand the most to benefit from changes to the way the law is implemented.

But he admits his proposition doesn’t amount to a whole hill of beans when it comes to the larger, impossibly complex subject of racial equity in our criminal-justice system.

“I don’t think it’s as simple as reforming the three-strikes law,” he told SN&R.

Asked what might account for the racial discrepancy at the state level, Schubert guessed that communities with larger black populations might somehow play a role but didn’t have an answer, either. She did have a question: “How did they end up in the system?”

Sacramento County Sheriff’s Department arrest reports from September 18-26 offer a small, imperfect snapshot. Of the 47 individuals arrested for suspected crimes in the unincorporated parts of the county, 17 (36 percent) were African-American, and eight (17 percent) were Hispanic. Of the arrested black suspects, 12 cases involved some form of domestic dispute, which are statistically less likely to be prosecuted by the DA’s office.

But questions remain, such as, why hasn’t nearly 20 years of reported data put even a dent in our racially warped prison system?

DA spokeswoman Shelly Orio said similar questions have been asked about the over- or underrepresentation of minority groups in education, housing, job markets “and many other aspects of society.”

“Definitive answers still elude us,” she added. “Certainly, these questions are worthy of continued discussion and analysis.”

One answer may be that the data has made an impact—we just haven’t seen the effects yet. CDCR’s own incarceration reports show a steady decline in the overall number of three-strikers being added to the state prison rolls. Whether prosecutors have lost their taste for the harsh sentencing law—as University of the Pacific McGeorge School of Law professor Michael Vitiello believes—or have just learned to apply it more efficiently—as Grippi suggests—the thousands of inmates who were given lifetime sentences in the early years of three strikes will be coloring the racial pie chart for decades to come.

All of which makes the 18-year-old law’s true legacy unmistakably black-and-white.

In 2004, around the 10th anniversary of three strikes, the Justice Policy Institute released a trio of reports showing, among other things, that California locked up four times as many three-strikers as 21 other states with similar laws, that there was no link between the use of three strikes and a decline in crime, and that three-strikers were disproportionately represented by blacks and Latinos.

Regarding the latter, the JPI surmised that long-ingrained institutional inequalities—higher poverty rates among minority groups, fewer financial opportunities to afford bail or private attorneys—were only being exacerbated by three strikes, which Romano calls the “harshest criminal sentencing law in the country.”

That may be all well and true, but after nearly two decades of casually regarded studies and alarming population breakdowns, people might just assume that blind Lady Justice hates brown people.