Benny Elmore cannot forget the $1.16 box of donuts that got him sentenced to prison for the rest of his life.
K Mart security officials say cameras showed Elmore picking up the donuts with the intent of stealing them. Store employees rushed Elmore, subdued him and a struggle ensued. Because of this confrontation, what might have been a misdemeanor became a robbery.“I do not want to die in prison for the theft of a $1.16 box of donuts,” said Elmore, 65, but indeed he might because his conviction exposed him to the California Three Strikes Law.
Elmore is not alone. Some estimates have been made that thousands of Three Strike California prisoners are facing life sentences for non-violent crimes that can only be described as stupid, even comic, according to a recent Rolling Stone article titled “The Stupidest Law Ever,” by political writer Matt Taibbi.
Last November, voters passed Proposition 36, a reform measure designed to free some of California’s Three Strike offenders. It has begun slowly to take hold, but at the same time, the new law left thousands of other prisoners asking, “When is it going to be my turn?”
Proposition 36, according to estimates, might affect up to 2,800 felons. As of early May CDCR released figures showing about 500 or 16 percent of these eligible offenders have been re-sentenced since last November.
Almost anyone convicted of a non-serious or non-violent third strike theoretically is eligible to apply for re-sentencing.
The only exclusion to this criterion is a prisoner who was previously convicted of a sexually violent crime, lewd act with a minor, murder, attempted murder, solicitation to commit murder, assault on a peace officer with a machine gun, or possession of a weapon of mass destruction.
Many Three Strikers have never been convicted of the specific crimes that would automatically exclude them, but they do have a non-violent current strike that can best be described as marginal, but in the interpretation of the district attorney and the court, it was enough to result in a life sentence.
All it takes is for a crime to be classified as “serious” under the California Penal Code for the prisoner to be stuck with a lifelong third strike.
Crimes making the “serious” list most commonly are burglary and robbery, even if no victim was harmed.
Robbery is a felony, but it varies in severity. Nevertheless, the Three Strikes Law led some district attorneys to prosecute apparently petty crimes under the severest interpretation.
According to a Stanford University study titled, Wobblers & Criminal Justice In California A Study Into Prosecutorial Discretion, “ As the chief law enforcement official in the county, the DA has a duty to act as a zealous advocate for the interests of the State in enforcing the law.”
Julius “Kimya” Humphrey Sr.’s undoing was not donuts, but an automobile part.
Humphrey was imprisoned under Three Strikes for the theft of a car battery. This was the fourth sentence he had served, but he has been picked up on 21 parole violations before the battery incident.
Humphrey says he regrets and is ashamed of being locked up 25 times. After being convicted of his Third Strike, he went back to the cell and told himself, “This is it. Society doesn’t even want anything to do with me.”
Humphrey said he decided to change his ways after he received his life sentence. He attends self-help programs and college classes now.
Humphrey is one of the fortunate ones. He qualifies for re-sentencing under Proposition 36, but he doesn’t think the new law is broad enough.
“Some of the guys who aren’t affected by Proposition 36 have never hurt anyone.” He adds, “I have violence in my past and I’m going home, but some guys are excluded for breaking into someone’s house, and that just ain’t fair.”
Larry Lechuga, 57, is an example of a prisoner serving life under the Three Strikes Law for first-degree burglary without any violence.
Unassuming and humble, Lechuga looks akin to a homeless man down on his luck. He has been classified as mentally slow and received Social Security Insurance for his mental disabilities.
Almost nine years ago, Lechuga was on parole for burglary, the only crime he had been convicted of at that time. He had a bad drinking problem, and as a result, he had been kicked out of the halfway house where he had been living.
Fearing his parole officer was going to violate his parole for leaving the halfway house, Lechuga said he took to the streets of Sacramento.
One night after drinking, Lechuga went looking for a friend’s house where he had been promised he could sleep in the garage.
Lechuga went to what he thought was his friend’s house, and walked in the back door of the garage. Mistakenly, Lechuga chose the wrong door. He encountered an ex-Marine in the garage he entered.
Lechuga fled, fearing he was going back to prison. He was captured by the resident and brought back to the garage under citizen’s arrest.
“I didn’t touch a thing, I just opened the wrong door by mistake,” Lachuga said. It was costly: a 45-year-to-life sentence.
Had Lechuga been found guilty of illegal entry, he would not have faced Three Strikes.
Taibbi writes, “District attorneys were terrified of the political consequences of not seeking the max for every possible third strike (even when the cases were ‘wobblers,’ what lawyers call a crime that could be charged as either a misdemeanor or a felony, depending upon the circumstances, like petty theft), while judges were legally bound to impose maximum sentences whether they agreed with them or not.”
Both Elmore and Lechuga could conceivably have been charged with misdemeanors, but they weren’t.
When Proposition 184 – the Three Strikes Law – was approved by California voters, it was touted as a law to get violent criminals off the streets.
The law cast a wide net, though, and ended up netting many offenders that have never hurt anyone.
Proposition 36 was meant to remedy the problem, but there are still plenty of offenders that are non-violent that will not see any relief from the new law.
According to the Legislative Analyst’s Office, as of March 2012, there are about 9,000 three strikers. Almost one-third of these three strikers stand a chance of getting out under Proposition 36, but that leaves many non-violent Three Strikers still doing life.
“I admit I was wrong, but I don’t think the time fits the crime,” Lechuga says.
