first published in the San Francisco Bay Guardian, March 14, 2005

FREE SANTOS REYES! by Matt Gonzalez

IN 1994, THE VOTERS AND STATE Legislature both adopted the “Three Strikes” law in California. Fueled by the abduction and murder of 12 year-old Polly Klaas by a career felon, this anti-crime measure promised to put dangerous criminals behind bars for lengthy sentences.

As a practical matter, the sporting analogy was an ill-fitting one – most batters strike out a hundred times a season. Nevertheless, 74% of the electorate supported the law because its proponents depicted the measure as designed to punish repeat violent offenders. What the public wasn’t told was that there was already a Three-Strikes law in place.

Penal code section 667.7 mandated a 20-year sentence for a third violent conviction and a life sentence for a fourth one. The new version voters approved changed the law two ways: 1) broadening the qualifying first two “strikes” to include not just violent offenses, but also offenses deemed “serious” and 2) allowing any type of felony conviction to constitute a third strike.

While a crime deemed “serious” may sound like a truly bad crime, it doesn’t always mean a violent crime. The legislature defined “serious,” in Penal Code section 1192.7, to include offenses like the daytime burglary of a garage or a purse snatching. Those offenses are certainly worthy of serious punishment, but not equivalent to murder, rape, forced oral copulation, or offenses that include the use of a gun.

In 1997, a man named Santos Reyes was arrested for giving false information on a Department of Motor Vehicles driver’s test. Reyes asserted his constitutional right to a jury trial, and since he had two prior felony “strikes,” after conviction he was sentenced to life in prison.

Reyes’ crime was cheating on the written DMV test to help his cousin, who knew how to drive but couldn’t read. A crime, yes — but worthy of a life sentence?

Reyes’ first strike, for burglary, occurred when he was a juvenile and not entitled to a jury trial. The second, a robbery, occurred a full ten years before the DMV case. Neither appears to have resulted in physical harm to another person.

Reyes wouldn’t have even qualified under the original Three Strikes habitual offender law, as neither the DMV offense nor his prior burglary was violent. Even under the 1994 Three Strikes law, Reyes would have faced a maximum of six months in jail had he been charged with violating Vehicle Code section 20, a misdemeanor, which proscribes making false statements on a driver’s license application. Instead, the DA elected to charge him with the more serious offense of perjury, a felony, thus implicating the Three Strikes law.

Reyes has now served more than six years in prison.

Two months ago, after corresponding with him, former Green Party gubernatorial candidate Peter Camejo began organizing a campaign to free Reyes and overturn California’s Three Strikes law. Meanwhile, Reyes’ appellate counsel, Gretchen Fusilier, succeeded in getting the 9th Circuit Court of Appeals to grant a hearing in Reyes’ case. Two justices noted Reyes was offered a plea bargain of four years – which he turned down – suggesting the DA didn’t really believe Reyes should get a life sentence.

Progressives must rally to this cause. Rather than punish serious criminals, Three Strikes has been a boon to law enforcement budgets and the prison industry. According to FACTS (Families to Amend California’s Three Strikes), 4,200 non-violent offenders like Santos Reyes are currently in prison under Three Strikes and are serving terms previously reserved for individuals convicted of murder, mayhem, and serious sex offenses.

What is happening to men and women in our state — under the guise of protecting the public – is ruining countless lives and impacting the lives of thousands of children and family members deprived of their loved ones.

Sentences should fit the crime. Isn’t it time to end this miscarriage of justice?