They Changed Their Minds on Three Strikes. Can They Change the Voters’?

Steve Cooley is florid-faced and unequivocal as he responds to a question during a public forum at USC last June. Asked about Proposition 66, the initiative to amend California’s three-strikes law on the November ballot, the Los Angeles County district attorney essentially has two things to say: He hates it, and he will work for its defeat.

Then he lays out his case opposing the ponderously titled “Limitations on Three Strikes Law. Sex Crimes. Punishment. Initiative Statute�: Only one sex crime against a child will be affected. It eliminates several crimes that can trigger a third-strike sentence. And because it’s retroactive, thousands of prisoners will have to be resentenced within 180 days of its becoming law. “This initiative is a bad, bad idea,� Cooley says.

Intently scribbling notes just a few feet away is 53-year-old Sam Clauder. At 6-foot-3 and 270 big-bellied pounds, Clauder is dressed in a suit and tie instead of his more typical attire of a blue John Kerry-for-President gimme cap, Hawaiian shirt and Bermuda shorts. Rarely looking up as he writes, Clauder gives no clue that he’s at the forum to scout the opposition or that he wrote the initial draft of the proposition that Cooley is trashing.

If you’d known Clauder years ago, you’d find that hard to believe. In November 1994, Clauder was among the 72% of Californians who voted in favor of the three-strikes law, sending a law-and-order message that defined the decade. The vote reaffirmed the same law that had been passed by the state Legislature and signed by Gov. Pete Wilson eight months earlier, but this version had more teeth. Any attempts to amend the three-strikes law, now that it had been approved as an initiative, would require a two-thirds vote of the Legislature instead of a simple majority.

In 1994, Clauder had done more than vote for three strikes. He had worked as a “ballot access consultant,� coordinating the gathering of petition signatures for statewide initiatives. But three strikes was different. He believed that the law’s passage was essential for public safety, believed it so strongly that in one 10-day period he oversaw the gathering of 12,000 signatures.

During the next two years, however, Clauder began hearing horror stories of people who were being sentenced for 25 years to life in prison for petty crimes. Not only had he personally favored the law, as a consultant he says he had “made money off the backs of these people.� He decided to set things right. In this he is not alone.

From the beginning, the three-strikes law has been shaped by personal stories, some tragic, others epiphanies. Fresno photographer Mike Reynolds helped start the movement after the murder of his 18-year-old daughter. Three strikes was further fueled by public reaction to one of the most publicized crimes in recent California history--the abduction and murder of 12-year-old Polly Klaas by Richard Allen Davis, a brutal, twice-convicted kidnapper.

This year’s attempt to reform the three-strikes law on its 10th anniversary also is rife with pain and loss and, most of all, a change of heart. Two self-described ragtag volunteer activists worked for years in anonymity to reform it. Polly Klaas’ grandfather has become its powerful advocate. A wealthy Sacramento insurance broker with a son in prison stepped in to personally bankroll it.

All four supported the original three-strikes law. All four have changed their minds.

For Sam Clauder and many others, the official ballot argument in favor of the 1994 law sounded right on the money. “Three strikes keeps career criminals who rape women, molest children and commit murder behind bars where they belong,� it read.

What many voters didn’t recognize, however, was that they also were voting to place a man such as Willie Turner in prison for 25 years to life. His third crime? Attempting to buy a macadamia nut disguised as a $5 rock of cocaine from an undercover cop. They didn’t realize that Rene Landa would receive a third strike for stealing a spare tire, or Johnny Quirino for shoplifting some razor blades, or Scott Benscotter for stealing a pair of sneakers, or Robert Di Blasi for shoplifting $2.69 worth of AA batteries, or Eric Simmons for being in possession of three stolen ceiling fans, or Joey Arthur Fernandez for aiding and abetting the theft of baby formula and Tylenol.

Most of these men have long criminal histories. The petty nature of their third strike sometimes masks the serious nature of their previous crimes. But many also have no record of violence. They are simply society’s natural-born losers--kinetic speed freaks and crackheads, washed-out winos and small-time thieves--Fellini’s freaks, Charles Bukowski’s barflies, junkies and addicts who got their first two strikes by committing burglaries to support their habits, often decades earlier.

Newsweek has called California’s law “the toughest� in the nation. U.S. Supreme Court Justice John Paul Stevens reacted to such sentences by declaring California “the only state in [the union] in which a misdemeanor could receive such a severe sentence.� California’s three-strikes law, in fact, is the only one of 26 three-strikes states that doesn’t require a violent crime conviction to trigger a third strike. The state’s 7,400 third-strikers are more than half the total number of those imprisoned for third strikes in the U.S. Of those Californians, 57% are now serving sentences based on a nonviolent third crime--among them 357 for petty theft and 678 for drug possession. About 35,000 other prisoners have had their sentences doubled for second strikes under another provision of the law.

Getting Proposition 66 on the ballot has been a great victory for Clauder and other reformers--the only one that California’s three-strikes opponents have had in a long, frustrating decade of failed attempts. There’s no guarantee that the initiative will pass: Virtually the entire criminal justice system in California is opposing Proposition 66, and Republican Gov. Arnold Schwarzenegger and Democratic Atty. Gen. Bill Lockyer have both signed the official ballot argument against it.

Nevertheless, there are signs that this year could be different. In a Field Poll conducted last month, 69% of likely voters supported Proposition 66, including 60% of Republicans and 59% of conservatives, and 78% said that Schwarzenegger and Lockyer’s opposition would not affect their vote.

Opponents such as L. Douglas Pipes, a Contra Costa County senior deputy district attorney who analyzed the initiative, have warned that it could result in as many as 26,000 second- and third-strikers being resentenced soon after its passage. That situation, he says, could release thousands of prisoners and throw California’s court and corrections systems and county jails into chaos.

A legal opinion commissioned by the ACLU Foundation of Southern California, however, maintains that only third-strikers would be affected. Using Department of Corrections figures, that comes out to about 4,200 inmates who would be eligible for revised sentences.

In 1994, Sam Clauder was a 43-year-old ex-private eye and aspiring producer/writer/director/actor. Smart and hyper-garrulous, he radiated a boyish naivete and a profound sense of right and wrong.

Born in Houston, Clauder was raised in an Assemblies of God Pentecostal sect, “far to the right of Jerry Falwell,� he says. He once stole a piece of gum from a local store and, racked with guilt, immediately returned, showed the clerk the chewed mass inside his mouth and told him he needed to pay for it. His father, a rigid man, was a Houston police officer before moving his family to Orange County and becoming active in the John Birch Society.

At 16, Clauder got “fed up with the hypocrisy of the church� and began experimenting with Hinduism and other religious faiths. In 1970, while a student at a local community college, he began hanging out with Vietnam veterans. Listening to stories of the horrors they had experienced and also committed in war led to his reexamining and then rejecting the conservative political values he’d always known. By 1971 he had become a political activist, volunteering to work on ballot initiatives to save the California coastline and to legalize marijuana. For the next 30 years, as Clauder tells it, he dabbled in the movies, gathered petition signatures and worked in Texas as a licensed private bail bondsman and bounty hunter.

Late in 1994, as Clauder was advising author and activist Jack Herer on an initiative to decriminalize marijuana, Herer began hammering away at him for contributing to the passage of the three-strikes law. Shortly after, Clauder realized that “Jack was right.� No one incident brought about his epiphany, just a cumulative awareness of people’s victimless crimes that he didn’t think should be against the law in the first place. “I was flabbergasted,� he says, “and so angry that I made a promise that I was going to do everything in my power to make up for that error.�

Three years later, Clauder received a visit from Jim Benson, who had heard that Clauder was an experienced hand in the initiative process. Benson asked him how to get a three-strikes reform proposition on the ballot.

Trim and gray-haired, Benson is a slow-talking, soft-spoken native of Ohio who also had supported and voted for the law. A self-described political moderate, he previously had worked for Reform Party presidential candidates John Anderson and Ross Perot. He also served as chair of the Reform Party in Orange County, and was a candidate for a Santa Ana state Assembly seat and a member of the Orange County Democratic Central Committee.

But in the spring of 1998 Benson spoke with some Green Party activists at a Cinco de Mayo festival in Santa Ana who told him about the eyebrow-raising sentences being handed down. “I thought that they surely had to be nuts,� Benson says. Later he told a friend about the encounter. “They’re right,� his friend replied. “I know someone who just received 25-to-life for some marijuana offense.�

“That was not what I had voted for,� Benson says, “and I knew I had to do something about it. I believe strongly in keeping serious criminals who’ve committed repeat serious crimes in prison forever. But I also know what it’s like to be addicted to alcohol and drugs. And I know that with treatment and determination, it’s possible to recover.�

As the vice chairman of Proposition 66’s sponsoring organization, the Orange County-based Citizens Against Violent Crime, Benson is responsible for running the day-to-day campaign. Like Clauder, he’s an unlikely crusader. At 41, he’s a recovering alcoholic who has been sober for 22 years. He started drinking gin at 14 and was downing two fifths a day when he was forced, he says, “to quit or die.� He had attended a small Ohio college for a year, and afterward worked as a limo and taxi driver, auto mechanic, cash register clerk and dealer of baseball cards and rare coins.

At their first meeting, Benson and Clauder talked an entire morning about what it would take to get an initiative on the ballot--about half a million dollars and at least several million more to run a statewide campaign against what surely would be powerful opposition from conservative politicians, their liberal counterparts worried about being labeled “soft on crime,� and the powerful special interests within what amounts to a statewide criminal justice industry.

In the fall of 1999, Clauder read a three-strikes commentary in the Los Angeles Times written by Polly Klaas’ grandfather, Joe Klaas. Clauder got in touch with Klaas, a now-retired 84-year-old resident of Pebble Beach, and he agreed to become the reform effort’s public face and chief spokesman.

Klaas has traveled thousands of miles through the state in his ’85 Buick Regal, trying to get the three-strikes law amended. Now he says he’s “too old to drive eight hours a day.� Instead he spends at least 20 hours a week at his computer or on the phone, speaking almost daily with leaders of the reform effort.

A former stringer for the Associated Press who also worked as a talk-radio host and station manager, Klaas had campaigned for the passage of three strikes alongside his son and Polly’s father, Marc Klaas. But then he began looking into the initiative’s fine print with a cooler eye.

In late February 1994, Joe Klaas talked to a reporter in Petaluma who told him about some of the more draconian provisions of the law. Then he decided to read the proposal and check it against a California law book. As he did, he realized that not only did it not take a violent crime to trigger a third strike, but that any one of California’s 500-plus felonies could trigger the sentence.

Klaas then spoke with someone in the legislative analyst’s office who explained that the bill also included minor misdemeanors that could be “enhanced� to felonies and fall under the law. Klaas was horrified. “This isn’t what everybody thinks it is,� he thought. “Nobody’s ever mentioning these nonviolent crimes.� Klaas’ realization came too late to make much difference, but soon after, Joe and Marc Klaas opposed the version of the law on the ballot and Joe became its fiercest critic both during the campaign and after it was approved.

It might seem incongruous that a man who had lost his granddaughter to a demented murderer would become an implacable foe of three strikes. But only if you’d never met Joe Klaas, an idealist from a different time. At the outbreak of World War II in Europe, he quit the University of Washington, joined England’s Royal Air Force and fought as a Spitfire pilot. After joining the U.S. forces, he was shot down over North Africa and spent the rest of the war as a POW, seeing, he says, “Allied prisoners gunned down not 50 feet� from him.

But there was more than that. For many years he had volunteered at San Quentin, Soledad and Vacaville prisons to coordinate 12-step recovery programs for inmates. (He was forced to stop because of the warped convict logic that held Polly responsible for the passage of three strikes. If he continued volunteering, prison officials told him, he’d be a marked man.)

Just how strongly Klaas opposed three strikes was visible one morning in 2000 as he spoke to the California Assembly’s Public Safety Committee. “I want to state up front that the murder, rape and kidnapping of my granddaughter, Polly Klaas, was exploited by this ‘three-strikes’ bill--a bill which didn’t stand a chance in hell of passing before Polly’s killing,� Klaas said.

“As a former prisoner of the Nazis,� he continued, “I can say that taking 25 years of somebody’s life for committing a nonviolent crime is violence almost on the level with murder. [Sentencing someone] to 25-to-life because he made a false application for a real estate loan, or for taking aspirin out of a bottle and putting the bottle back on the shelf in a drugstore--now that is violence.�

Despite Klaas’ passion, his son Marc has become a staunch opponent of Proposition 66, believing, as he recently told the Sacramento Bee, that “certain people are hard-wired for crime� and need to be locked up for decades, even if their third strike is a petty crime, so that they don’t “revictimize.� Their rift is so painful that Joe Klaas refuses to talk about it, other than to say, “We can’t be in the same town together because he’s so mad at me for not switching with him against [Proposition 66].�

Geri Silva, a founding member and former state chair of Families to Amend California’s Three Strikes, has called Klaas’ emergence in the reform struggle significant: “Joe Klaas wasn’t just some guy off the street. He came from the other side. He could have been out there talking about how if we’d had this three-strikes law earlier, his granddaughter would still be alive. Instead he was aligning himself with us. And that was major.�

In 2003, Benson and Joe Klaas began a fundraising drive, sending out letters and e-mails signed by Klaas and actor/activist Ed Asner. Jerry Keenan, a wealthy owner of a Sacramento auto insurance firm who previously had made a token contribution, got a letter and decided to essentially bankroll the initiative.

“I went numb,� Benson says. “It was so entirely unexpected. I thought, maybe we can actually do this thing.� Keenan’s check was for $300,000, a down payment on the $1.6 million he has contributed so far. Benson, who had been aiming to get the initiative on the ballot in 2006, turned his sights on 2004.

Keenan and his wife, Cynthia, had voted for the three-strikes law. But “the more we learned about how it was being misused,� Keenan says, “the more we became determined to modify the law.� They learned about it in a very personal way.

One night in 1999, the Keenans’ then-21-year-old son, Richard, smoked some grass, drank beer with his friends and climbed into his gold Lexus with four of them. His driver’s license had been suspended after he’d been caught with a small amount of marijuana in his car, but Richard, as his lawyers tell it, was unaware that the suspension had gone into effect. He cranked up the Lexus to about 20 miles above the 55 mph speed limit on an undulating back road, and the Lexus flipped over. Two of his passengers--both 19 years old--died.

Richard Keenan pleaded guilty to two counts of gross vehicular manslaughter, plus one count of causing great bodily injury, and received an eight-year prison sentence in 2000. “Great bodily injury� is a “strikable� offense, and should Keenan commit a second felony, he could receive a second strike and his sentence would be doubled.

“When Richard was linked to three strikes,� Jerry Keenan says, “it opened my eyes. Something was horribly wrong if a three-strikes law could affect someone like Richard.� A precise, soft-spoken man, Keenan has reluctantly put himself in the public limelight.

Perhaps not coincidentally, about the time that Keenan helped fund the initiative, a new provision was written into the proposed proposition. If great bodily injury happened accidentally, it read, without the intent to commit harm, the conviction would not count as a strike.

The addition of the provision has led to accusations that Jerry Keenan is trying to purchase a law, and the family of one of his son’s victims has publicly objected.

Buying legislation, however, is what California initiatives have been about for decades. At the turn of the 20th century, the state’s good-government Progressives sought to take power away from the robber barons and railroad titans and place it in the hands of the people. But that experiment in democracy has morphed into a multimillion-dollar industry where campaign consulting firms can make as much as $7 million spearheading a single initiative.

In 1994, when Mike Reynolds’ three-strikes campaign was desperate for cash, the California Correctional Peace Officers Assn. stepped in to contribute $101,000. The National Rifle Assn. contributed at least $90,000 and U.S. senatorial candidate Michael Huffington donated $350,000. That was $541,000 out of the campaign’s $1.6 million in total spending--key portions of it coming at a time when Reynolds’ campaign was barely afloat. At the time, voters were concerned about gun control. Three strikes enabled the NRA to change the public conversation from gun control to its theme of “guns don’t kill people, people kill people,� and Huffington to prove his law-and-order bona fides in a law-and-order year. (He lost.)

California’s three-strikes law also was very good for the prison guards’ union. Increasing numbers of prisoners held for vastly longer periods of time require more guards, new prisons and lucrative overtime pay. The guards’ union “and others came in and bought the three-strikes law by donating money that enabled it to pass,� Keenan says. “I’m not trying to buy a new law, just modify the current one.�

Steve Cooley says he realizes the law has been applied unfairly, and he blames his predecessor and other prosecutors who used it to pump up their “get-tough� credentials. “Disproportional, bizarre, unusual and draconian� are some of the adjectives Cooley uses to describe the three-strikes policy of former L.A. Dist. Atty. Gil Garcetti.

“His policy was to prosecute petty crimes as three strikes,� Cooley says at the USC forum. “Mine has been exactly the opposite: You cannot pursue ‘got ya’ prosecutions and maintain a credible criminal justice system.�

Whether the state is maintaining a credible justice system, however, is a larger question than three-strikes reform.

The chairman of an investigative panel appointed by the governor recently described the state’s corrections department management as “deficient and dysfunctional.� The panel’s report cited “too much political interference, too much union control and too little management courage, accountability and transparency.� In April, the Department of Corrections declared a state of emergency for five prisons due to overcrowding--despite a $5.8 billion annual corrections budget and the building of 21 new prisons during the last two decades at a cost of more than $4 billion. A judge is now threatening to place the adult prison system under federal receivership.

Nevertheless, Gov. Schwarzenegger is taking a leading role in opposing the initiative. Joe Klaas finds this “amazing� given that it is “something [that] could save so much money by no longer putting petty criminals behind bars for 25 years to life.�

According to a report by the state legislative analyst’s office, Proposition 66’s passage would, in fact, result in state “prison operations savings of potentially several tens of millions of dollars in the first couple of years, growing to as much as several hundred millions in ongoing savings when the full impact of the measure is realized in about a decade.� In addition, the report states, “The lower prison population resulting from this measure would potentially result in capital outlay savings . . . associated with prison construction and renovations.� State and local costs for the courts and county jails would increase, however.

Cooley’s opposition is equally surprising. But he’s a veteran of 32 years as a prosecutor and is a member in good standing of the state’s criminal justice industry, with its $17.5 billion annual budget and the political juice to literally dictate crime and punishment policy.

He doesn’t see the proposition as a remedy for the three-strikes excesses of which he accuses Garcetti, or other excesses across the state. He would instead get the California District Attorneys Assn., which is fiercely battling the initiative, to support a three-strikes reform bill in the state Legislature. But getting a two-thirds vote to soften the controversial hard-line law is unlikely. Why would district attorneys want to give up a sledgehammer used to intimidate defendants into accepting harsh plea bargains? Cooley is his own man, but he’s no maverick.

After the forum, Clauder’s appraisal of Cooley’s position is that he’s been “doing a good job implementing a bad law.� And the three-strikes policy of Cooley’s office has, in fact, not been much different in its bare-bones essentials than the reform initiative he is now vehemently opposing.

Before his election in 2000, Cooley declared, “If the potential third strike is a ‘violent or serious’ felony, the case should be . . . pursued as a third strike. If it is not a ‘violent or serious’ felony, the case . . . should not be pursued as a third strike.� Cooley proved true to his word. Mirroring a statewide trend, third-strike convictions in L.A. County dropped from 526 in the peak year of 1997 to 113 in 2003 under Cooley.

So why his blanket opposition? One reason, Clauder suggests, is that “Cooley’s present policy is Cooley’s policy, he has control over it, it’s his decision to use it or not. He won’t have that power if Proposition 66 passes.� Cooley says he simply thinks the initiative is bad, citing one provision that would eliminate a district attorney’s ability to get multiple strike convictions in the same proceeding.

In any case, given the numerous failed legislative attempts to reform mandatory minimum sentences such as three strikes in California or the Rockefeller drug laws in New York, Clauder probably has it right: “You can’t rely on politicians to correct the law. You have to correct it by initiative. Only then will policy follow.�

“The phone is ringing off the wall,� Clauder says, and he is “breathing fire,� fielding calls from people who, like him, are unhappy that the final version of Proposition 66 doesn’t apply retroactively to second-strikers. He’s still actively supporting the proposition, but he has now formed his own organization, “Yes on 66.� Its major mission will be to influence the debate so that when Proposition 66 is adjudicated--should it pass--a judge might rule that including second-strikers was the voters’ intent.

Jim Benson, meanwhile, is working with Joe Klaas on the campaign. So far, the proposition’s supporters include the California Federation of Labor and the California State Employees Assn. Newspapers such as the Los Angeles Times, San Francisco Chronicle, Sacramento Bee, San Jose Mercury News and San Diego Union-Tribune have published editorials in favor of it.

In August, Klaas had what he thought was a heart attack during a meeting in Monterey. Doctors couldn’t find anything wrong, and he is now attributing it to work “overload.� “I’m 84, and everybody I knew who should be 84 is dead,� he says.

Jerry Keenan says he is only “among the people who have financed� a new organization called “Fix Three Strikes, Yes on 66,� designed to pull together several organizations supporting the proposition. “Fix Three Strikes� also is discussing raising several million dollars--in addition to the $1.6 million that Keenan already has donated--to buy television ads when the campaign reaches its apex in the fall. They’ve hired the top-gun political consulting and advertising firm Zimmerman and Markman--which produced a number of anti-Bush television commercials for MoveOn.org--to create the ads.

Jerry and Cynthia Keenan visit their son every weekend at the minimum-security Folsom prison ranch, a vast improvement from the three years of hard time he served. “The other side fought against Richard serving his time at the ranch, but he’s doing much better now,� Keenan says.

As for the 57% of prisoners whose third strike was for a nonviolent crime, they wait for the voters of California to decide whether or not they’ll be spending the rest of their lives in prison.

Researcher Jessica Gelt contributed to this story.