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Outing Three Strikes

Legal Absurdities

by CHRISTOPHER BRAUCHLI

It is always refreshing when awareness and consequences catch up with the absurd. For more than 40 years, some thought that the way to reduce criminal activity was to limit the number of crimes a person was permitted to commit before life in prison without parole became the imperative alternative. Such enlightened approaches to crime were known as “three strikes” laws. Absurd applications are legion but my favorite is the Texas case of Rummel v. Estelle that was especially instructive because it introduced into the world of the air conditioner repairman a cautionary note. The case stands for the proposition that failure to satisfactorily repair an air conditioner when charging for the work may lead to a prison sentence of life without parole.

In 1964 William James Rummel was convicted of fraudulently using a credit card in order to obtain $80 worth of goods or services and sentenced to 3 years in jail. One way of looking at that sentence was that if he got to keep the $80 worth of goods or services he effectively paid $26.67 for each of the years he spent in prison. Unfortunately, prison was not a didactic experience for him.

Within a year after his release, he passed a forged check in the amount of $28.36, pled guilty and was given 4 more years in the penitentiary at a cost to him, if he got to keep the money, of $7.09 a year. Viewed in a positive light, he was given room and board for 4 years for a very modest sum. The only thing he didn’t get was freedom. Sadly, and herein lies the cautionary tale for air conditioner repair people, it was his attempt to earn an honest living that got him back into prison for life.

As soon as he was released he went into the air conditioning repair business and charged a customer $120.75 for a repair. His work was unsatisfactory but he refused to return what he had been paid. In Texas that constitutes obtaining money under false pretenses and convicted of that, he was sentenced to prison for life under Texas’s three strikes law. He appealed and the U.S. Supreme Court upheld his sentence.

In an opinion written by Chief Justice Rehnquist in 1980, the Court held Mr. Rummel’s sentence did not violate the 8th and 14th Amendments’ ban against cruel and unusual punishment. The Chief Justice, apparently somewhat embarrassed by upholding Mr. Rummel’s sentence, said: “We all of course, would like to think that we are ‘moving down the road toward human decency’ Furman v. Georgia . . .. Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies” Not being a legal cartographer I could not then have commented on whether he was right or wrong in not knowing in which direction “that road lies.” Events today suggest, however, that he and his colleagues would have been well served by a legal GPS, had such a device then been available to the Court, since Mr. Rummel was one of many in the United States who received life sentences courtesy of the three strike laws.

Leandro Andrade, some 30 years later, received two consecutive 25 year sentences in California after stealing 9 videotapes from two different K-Mart stores in a two week period (following other convictions) and, once again, 5 members of the U.S. Supreme Court were comfortable with the application of the three strikes law.

Such historical ruminations are only timely because of a recent report in The New York Times that prisons are now overcrowded to the point where non-violent prisoners must be released for want of adequate space to house all the inmates. A few days after that report was published, a panel of federal judges in California issued a 184-page order requiring California to reduce its inmate population by 40,000 prisoners within two years. The court observed that the overcrowding resulted in the unnecessary death of one inmate per week (not, obviously, enough to solve the problem of overcrowding.) Although not attributing the overcrowding to three strikes laws, the court observed that the 750% increase in California’s prison population during the last 30 years is “the result of political decisions made over three decades, including . . . the passage of harsh mandatory minimum and three-strikes laws. . . . .”

Now would be a good time for legislators to revisit the questionable penal policies that may or may not have reduced crime in the country but have undeniably increased the prison population to intolerable levels.

CHRISTOPHER BRAUCHLI is a lawyer living in Boulder, Colorado. He can be reached at: brauchli1@comcast.net