Ruminations on Proposition 36

In 1993, my 12-year-old daughter Polly was kidnapped, raped and murdered by a recidivist violent offender. Over the course of three decades her killer, like many other repeat offenders, had been regurgitated through California’s criminal justice turnstile numerous times for a variety of non-serious, serious, and violent crimes. He had been on the streets for less than six months when he killed Polly.


The crime against Polly prompted more than 800,000 Californian’s to sign the then fledgling 3-strikes-and-you’re-out ballot petition that would enhance prison sentences for repeat offenders, but it was not the crime that inspired 3-strikes. A year earlier 18-year old Kimber Reynolds was shot in the face and murdered by a 357-magnum handgun when she refused to give her purse to a thief: in other words, a petty crime turned violent with the squeeze of a trigger.


By the time the 1994 election occurred and 3-strikes passed by more than 70% of the popular vote, Governor Wilson had already signed the bill into law with the overwhelming support of the California legislature.


The Three Strikes law clearly established a sentencing structure for career criminals based upon their criminal history, not the last crime for which they were convicted. The law was clear and unambiguous: “With respect to a defendant convicted of any new felony who has two or more serious or violent prior felonies, the law mandates an indeterminate life sentence of no less than 25 years to life.” Its stated intent was “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”


In 1993, California was experiencing the most robust crime spurt in its history with 336,381 violent crimes, including 4,096 murders and 11,766 rapes, having been reported to law enforcement agencies. By 2011, the violent crime rate in California had dropped to 154,944 reported incidents. That included 1,792 murders and 7,663 rapes. In other words, you were half as likely to be the victim of a violent crime in in 2011 as in 1993. I would never attribute the entire decline in California’s crime rates since 1993 to the influence of the 3-Strikes law. But it would be equally misguided to maintain that the law has made no contribution.


As of Sept. 2012, the total prison population in California was 134,868. The 3rd-striker population was 8,873; or 6.6 percent of total. Each of those individuals had at least 2 serious or violent offenses on their record and many had multiple felony convictions. In fact, the average 3rd striker has between 3.5-5 felony convictions.


Each 3-strike inmate has had the benefit of prosecutorial discretion (in the furtherance of justice, or if there is insufficient evidence to prove the prior strike conviction), judicial discretion (trial courts in California also have discretion in their sentencing choices that permit them to fashion appropriate outcomes on behalf of a particular third-strike defendant), and the appeals process. Those who qualified had the benefit of the previous Prop 36 (2000) drug treatment diversion program. If they were unable to surmount any of those barriers, I agree with the court that they belong in prison.


Prop 36 proponents also said that California would no longer pay for housing or long-term health care for elderly, low-risk, non-violent inmates serving life sentences for petty crimes. According to the Public Policy Institute of California men between 18-40-years old are the age group most likely to commit crime.  If that statistic is consistent with the 3-strike population, then most 3rd strikers will be eligible for parole before they reach their 65th birthday. In fact, according to data on third-strikers categorized by age, we see that less than 10.2 percent of the entire third-striker population is over the age of 60. Similarly, less than 3.6 percent are over the age of 65.


In the 5-years prior to 3-strikes California taxpayers funded and built 19 new prisons. During the 18 years that 3-strikes was in effect California taxpayers have only funded and built 1 new prison. And that happened while the state population grew from 33 million to 38 million.

Personally, I believe that this clearly demonstrates that 3-strikes was working as intended and has prevented millions of victimizations by keeping career criminals behind bars. Therefore, there was no reason to tweak the law. However, Proposition 36 proponents suggested that too many criminals are serving life sentences for petty crimes, leading to unacceptable costs to the taxpayer and dangerous prison overcrowding, and that nobody who poses a risk to public safety will be released from prison as a result of its passage. As a result, approximately 3,000 3rd strikers now qualify for resentencing and release back into society.


This is the same bill of goods that Governor Brown pitched when he sold the legislature on AB-109, the Public Safety Realignment Program, which became law on October 1, 2011. Under AB 109, responsibility for who houses, supervises, and rehabilitates non-violent, non-serious, and non-sexual criminals shifted away from the State of California to the Counties. That means that tens of thousands of prison inmates were transferred from state prisons to county jails. Because many Counties were already beyond capacity the result has been a wholesale felon dump onto the streets of California.


The results are alarming. According to FBI statistics documenting national and state crimes over the first six months of 2012, after nearly 20-years of declining crime rates, crime is on the rise. However, violent crime in California increased at more than twice the national rate, rising 4% while the rise in property crime was six times higher at 9%. Furthermore California experienced a 7.6% increase in homicide and double-digit increases in burglary and auto theft. The unintended consequences of AB 109 have resulted in so called non-serious, non-violent, and non-sexual offenders wreaking havoc on the streets of California, murdering, raping and maiming innocent citizens.


Are there really thousands of 3rd strikers serving life sentences for petty crime? Remember, the 3-strikes law clearly stated that, “With respect to a defendant convicted of any new felony who has two or more serious or violent prior felonies, the law mandates an indeterminate life sentence of no less than 25 years to life.” The goal was to rid society of career criminals, that small percentage of individuals responsible for a large percentage of serious and violent crime.


Scott Hove

Scott Hove

Yes, there are individuals in the 3rd-strike population whose final conviction was for trivial crime, but that is but the tip of the iceberg. Let’s look at Scott Andrew Hove who was sentenced to 29-years to life for pilfering $20 worth of wire from a Home Depot. However, Hove is also an “incurable recidivist,” with a lengthy rap sheet dating from 1984 with convictions including theft, burglary, drug possession and DUI causing death. Hove is not an anomaly. I would challenge Proposition 36 proponents to cite one case of an inmate serving a life sentence for a history of petty crime.


That brings us to what I consider one of the biggest loopholes that Prop 36 is responsible for. The current iteration of 3-strikes removes prosecutorial discretion as it applies to so-called wobblers and non-serious/violent crimes. Requiring the third strike to be serious or violent to trigger a 25-life sentence shifts the emphasis of the law from an offender’s criminal history to the last crime for which he was caught.


John Ewell

John Ewell

And finally, that brings us to the sad and pitiful case of John Wesley Ewell. For those that don’t know, Ewell was a 2-striker with a criminal record spanning more than 2 decades. He was well known in his community as a vocal opponent of 3-strikes who said that the policy made him a prisoner in his own home. The LA District Attorney opted not to charge Ewell with a third strike for minor crimes on four separate occasions because he believed that the third strike must be a serious/violent felony. John Wesley Ewell is now sitting in the LA County jail charged with four counts of murder with special circumstances, robbery and receiving stolen property. Under the old three strikes law these crimes were totally preventable. Under the current three strikes, they were inevitable.


Proponents say that Proposition 36 is more effective that the law it has replaced because its policies have been in place in LA County for more than a decade so they are tried and true. I say that John Wesley Ewell proves that Prop 36 policy is flawed and will endanger the lives of innocent citizens.


Does anybody really expect thousands of third strikers released into the community to obey the law? Remember, each one of these characters has at least two serious or violent convictions. In each case the prosecutor, judge, and the court of appeals felt that society was well served by keeping them behind bars and I couldn’t agree more.


Sierra LaMar Has No Rights!

Sierra LaMar

Sierra LaMar

Ladies and gentlemen, this press conference has given us a peek into a mother’s anguish. It has also given us an opportunity to witness the loyalty and dedication of the amazing volunteers who turn out week after week after week to search for Sierra Lamar. The reality is that none of this is really necessary because there is an individual sitting in the Santa Clara County Jail who has the answers.


But on Saturday morning while these volunteers wake up at the crack of dawn, grab a cup of coffee, put their best face on and then come out here to look for Sierra, that individual sleeps in, and then somebody brings him breakfast. That’s been going on for ten months now. They keep piling charges onto this character, yet he’s never entered a plea.


He’s in protective custody. The authorities can’t even talk to him because he’s invoked his right to have a lawyer. There is absolutely nothing going on. He’s playing you, he’s playing me, he’s playing Sierra’s family, and he’s playing the system for everything its worth.


These are his rights, but what about Sierra’s rights?

Sierra LaMar: Anatomy of a Search Day 365!

DSC_0092I never expected that we would hit this milestone: Sierra LaMar has been missing for a year! That means that her family has endured four seasons of not knowing where their beautiful daughter/sister is. Their Saturday morning ritual has become routine. Get up very early, put on your best face, grab a mug of coffee, drive to Morgan Hill and hope that when you turn into the Sierra Search Center yours isn’t the only car in the parking lot. To date those specific fears have not been realized, but that doesn’t mean that there’s not plenty left to be fearful of. Marlene LaMar recently told me that, “It has been a long journey, and the most difficult thing is not having the answers which makes waiting feel infinite. The loss and pain has been indescribable.”


Last year hundreds of strangers came together to look for a teenaged girl who disappeared while walking to the school bus early on a foggy, wet and windy Friday morning. Last Saturday, a community of about fifty friends gathered for Morning Prayer as they have been doing virtually every week for a year. They stood in a circle, heads bowed and hands held as the Lord’s name was invoked and his guidance was sought. It was a touching sight, profound in its determination and its loyalty.

Press conference 6.13.12

Two-hundred-ninety-eight days ago Antolin Garcia-Torres was arrested on suspicion of kidnapping and murdering Sierra. His DNA was discovered on items that Sierra had with her when she disappeared, and her DNA was found inside his car, but he told the authorities that he had never met the young girl. One-hundred-twenty-one days ago Torres-Garcia was further charged with three separate charges of kidnapping women during the commission of a carjacking. He has yet to enter a plea on any of the charges.

Midsi and Marlene LaMar

Midsi and Marlene LaMar

Torres-Garcia holds the truth that so many desperately want to know, and he turns his back on common decency. Since he invoked his right to be represented by a lawyer, the authorities don’t question him. Because he is so despised by the other inmates at the Santa Clara County Jail, he is held in protective custody. There is nothing like staring your own mortality in the face, so I believe that the prospect of the death penalty might finally bring the truth forward. Nothing else has worked.

The Kitchen Ladies: MA, Loretta, Margaret, Vivian, Mary

The Kitchen Ladies: MA, Loretta, Margaret, Vivian, Mary

Tomorrow morning the public and media will join Sierra’s family and the search volunteers at the Search Center which is located at 85 Tilton Ave., Morgan Hill. There will be a press conference at 9:00 a.m., followed by a balloon release. Then searchers will be dispatched to look for signs of Sierra. I expect the mood to be as hopeful as the day is beautiful. The trouble is that with this case storm clouds are never far off the horizon.

Pope Francis’ Responsibility to Humanity

Pope Francis I

Pope Francis I

I am certainly no expert on the Catholic Church. I’m neither a member or particularly religious. I’ve only been to mass one time. But I do know that for the new Pope to be successful he has to own up to the worldwide pedophile scandal that has devastated Church, punish the Priests who sexually abused young parishioners, and the Bishops who covered their crimes. To do less is to extend years if not decades if not centuries of denial and obfuscation by his predecessors.


As the 21st Century turned, whispers of Church abuse became a deafening roar in the United States as victims came forward with harrowing accounts of serial sexual abuse. Church leaders in other regions pointed fingers and denied that similar crimes were occurring in their congregations. Those denials were soon shattered when the sex scandal exploded around the world. Powerful factions within the Church dismissed the allegations and said that media coverage was excessive and disproportionate, that more abuse occurred in the home than in the Church, and that sexual abuse occurs in all denominations. What they failed to do was take responsibility for their own transgressions: which were legion.


Last week the Survivors Network of those Abused by Priests (SNAP), a non-profit organization support group of survivors of clergy sexual abuse and their supporters in the United States, released a “Dirty Dozen” list of Cardinals who participated in the Papal selection conclave. The dirty dozen include twelve Papal candidates who SNAP believes would be the worst choice for children. Among the group were American Cardinals Timothy Dolan from New York, Sean O’Malley of Boston and Donald Wuerl of Washington, D.C.  Cardinal Dolan’s spokesperson said, “I’m not going to respond to this group which has little to no credibility.” Currently, SNAP has more than 10,000 members in 60-chapters.


Because they have a history of turning their backs when Priests have sex with young children the Catholic Church has no credibility. Unless Pope Francis 1 acknowledges that fact, nothing will change.  It is the new Pope’s responsibility to punish pervert priests and those who covered the most widespread, institutional sex abuse scandal in the history of the world, the Catholic Church. If he fulfills his duty to humanity the Catholic Church might regain their dignity and credibility after all.


RIP BeyondMissing

BM WebsiteBeyondMissing, Inc. began with an idea and blossomed into a reality that functioned flawlessly, twenty-four hours per day for eleven years. Since 2002, BeyondMissing technology has been utilized by law enforcement to issue 174 Amber Alerts, 56 Local Amber Alerts, 16 Abduction Alerts, and 94 Missing Child Alerts. The program had a 95% recovery rate. Yesterday we closed our doors for the last time.


Charlie RossMissing person flyers have been paper based ever since the first missing child flyer was issued for four-year-old Charlie Ross in 1874. Distribution was labor intensive and often times expensive and technology breakthroughs were few and far between. In 1979 the mysterious disappearance of Etan Patz riveted the country’s attention after pictures of the beautiful boy were distributed widely on television. Etan was also the first missing child on milk cartons. In 1993, my daughter Polly became the first missing child whose flyer was widely distributed via the Internet. Mostly though, paper flyers were distributed from hand to hand, appearing on telephone poles, Post Office walls, and merchants windows.


Two weeks after Polly was kidnapped we conducted a major flyer distribution. We printed thousands of our own flyers, acquired a mailing list, folded flyers, stuffed and addressed envelopes. A friend mortgaged a house to pay for printing and postage. Eight days later flyers began to arrive at their destinations. There had to be a better way.

Etan Patz

Etan Patz

BeyondMissing came to me in a vision. We could significantly close the time gap between a child being reported missing and the ability of the public and media to see the victim by creating an Internet based, password protected website that would allow law enforcement officers to use existing web based tools to create missing child flyers. They could then immediately distribute those flyers to pre-populated Fax and email databases.


I acquired a team of management and IT professionals and submitted a proposal for BeyondMissing to the U.S. Department of Justice (USDOJ) with the help of Wisconsin Congressman Mark Green. In turn, the USDOJ asked the National Center for Missing and Exploited Children (NCMEC) to evaluate my proposal. They quickly concluded that it should not be funded because, “Existing programs render this program redundant.”  I successfully challenged that conclusion and was eventually awarded $846,000 to build the program. By the time BeyondMissing was operational three months later we had included a parent flyer tool that allows parents of missing children to create their own missing flyers.


BeyondMissing was never fully embraced by the law enforcement community at large.

However, we did work with the Texas Department of Public Safety from August 12, 2002 through February 28, 2013. During that time BeyondMissing technology distributed 1,231,500 emails and 34,400 text messages, and initiated distribution to 1,721,800 faxes to targeted public and private recipients on behalf of law enforcement. This technology, which never broke down, was utilized by registered law enforcement in 35 states in the search for 340 abducted or missing children. Cases included 223 female and 117 male children reported as abducted or missing, including 146 White, 131 Hispanic, 45 Black, 5 Asian, 2 American Indian, and 11 identified as other.


In 1994, utilizing a $1,000,000 grant, the NCMEC created and introduced the Locator, a web-based poster-creation program that provides law enforcement agencies with access to create and distribute their own posters to include Missing Children. They said that they wanted to close the time gap between a child being reported missing and law enforcement’s ability to distribute a missing flyer. Distribution was limited to email. By this time BeyondMissing was distributing Texas Amber Alerts via text messaging. NCMEC introduced Locator Fax distribution in 2006.


In 2001, the NCMEC said that “Existing programs render this program [BeyondMissing] redundant”, yet within three years they had used 1,000,000 of our tax dollars to construct a third rate knock off. The USDOJ turned a blind eye to this waste of public funds. At best, the NCMEC’s behavior is unethical.


When I started writing this blog it was with a sense of nostalgia, but now I’m just pissed off.