March 16, 2010
ROBERT FERGUSON'S nearly eight-year prison sentence in early March
for shoplifting a bag of shredded cheese from a California convenience
store made headlines around the world. How could such a petty crime
trigger such a lengthy sentence? Whether from a moral or public policy
point of view, the outcome seemed absurd.
But the harsh sentence represents only the final--and perhaps not
even the most outlandish--failure of California's criminal justice to
At Ferguson's March 1 sentencing hearing, for example, prosecutors
urged the judge to impose a lengthy sentence because of Ferguson's prior
convictions. As far as they were concerned, they had already shown
leniency by not seeking a life sentence. Prosecutors had only backed
down after a psychologist's report concluded that Ferguson suffers from
bipolar disorder, which impairs his ability to control impulses during
Nevertheless, Deputy District Attorney Clinton Parish still asserted
at the hearing that Ferguson is a "career criminal," pointing to his 13
prior convictions that put him behind bars for 22 of the past 27 years.
Never mind that six prior burglary convictions occurred some 30 years
ago. Or that Ferguson's misdemeanor assault conviction was for throwing
a soda can at a sibling when he was a teenager.
Or that the only reasonable place for a man suffering from mental
illness is a mental health facility, not the overburdened California
prison system--which a panel of judges two years ago found to be so
overwhelmed that it "worsens many of the risk factors for suicide among
inmates and increases the prevalence and acuity of mental illness."
Those same judges ordered California to lower its prison population
by more than 40,000 inmates so that the system would not exceed 137
percent of its intended maximum capacity of 84,000.
Two years later, the state of California is still staring at one of
the highest incarceration rates in the nation and a sprawling prison
system that costs the state $10.8 billion--about 10 percent of its
annual budget--to house 170,000 prisoners. Today, California spends more
to lock people up than it does on the University of California system,
once the premier public institution of higher education in the U.S.
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BUT ROBERT Ferguson is only the latest in a long history of
sentencing outrages stretching back to the 1990s, when voters
overwhelmingly passed Proposition 184, mandating a life sentence for
anyone convicted of a third felony.
Other cases that made headlines were the 1994 life sentence for Jerry
Dewayne Williams, who stole a pizza, and a 25-years-to-life sentence
for Johnny Quirino, convicted in 1996 of petty theft of razor blades.
What makes such stories all the more preposterous is the gaping hole
in California's budget--in part the product of the rise of California's
prison population in the wake of tough sentencing rules such as
three-strikes. It costs about $49,000 a year to house an inmate in
California's prison system.
The painful cuts facing practically every social service and public
institution in California have yet to convince politicians and
public-policy makers of the need for a fundamental reform of
Between the 1970s and the present, California's prison population
more than quintupled--from less than 30,000 to around 170,000.
For three decades now, the logic of "getting tough on crime" has
justified harsh sentencing laws, a prison-building spree and worsening
police brutality. Defenders of the system say that such policies are
necessary to deal with the scourge of drugs and violent crime. But they
can only do so by ignoring the facts about drug use and crime.
Thus, law-and-order policies have filled the nation's prisons with
hundreds of thousands of nonviolent drug offenders, disproportionately
Blacks and Latinos, even though whites use illegal drugs at very similar
In the words of Michelle Alexander, author of The New Jim Crow:
Mass Incarceration in the Age of Colorblindness:
President Ronald Reagan officially declared the current drug war in
1982, when drug crime was declining, not rising. From the outset, the
war had little to do with drug crime and nearly everything to do with
The drug war was part of a grand and highly successful Republican
Party strategy of using racially coded political appeals on issues of
crime and welfare to attract poor and working-class white voters who
were resentful of, and threatened by, desegregation, busing and
In the words of H.R. Haldeman, President Richard Nixon's White House
Chief of Staff: "[T]he whole problem is really the blacks. The key is to
devise a system that recognizes this, while not appearing to."
It's time to stop the runaway freight train of California's prison
system--and the whole country's law-and-order drive that incarcerate
more people than any nation on the planet.