© 2021 KALW
KALW Public Media / 91.7 FM Bay Area
Play Live Radio
Next Up:
Available On Air Stations
Crosscurrents logo 2021

When the third strike is no longer a strike

Screen shot 2013-05-14 at 4.55.09 PM.png

Nearly 500 inmates serving life sentences have been freed from California prisons since voters passed Proposition 36 last November. The law authorized Superior Court judges throughout the state to free prisoners who had been sentenced to 25 years to life under the state’s original three-strikes law if their third crime, or “strike,” wasn’t serious or violent, and thus, not a third strike.

Before voters went to the polls, it was estimated about 3,000 of the state’s 10,000 prisoners charged with a third strike could possibly qualify for re-sentencing if the proposition was passed. As of today, more than 2500 petitions have been filed and only 13 have been denied as reported to the California Department of Corrections and Rehabilitation. 

Two weeks after the November election, I sit with Curtis Penn inside San Quentin State Prison. Tall, middle-aged, with broad shoulders, and close-cropped black to graying hair, he describes the night in 1991 when he committed his first two strikes:

“My strikes were back in 1991 for two counts of attempted second-degree robbery”, says Penn.  It was at a gas station. Keys was in the vehicle and I seen this individual having trouble pumping gas. And I walked up to this individual and asked if they needed help and they said, ‘Sure.’

“As I was helping pumping gas the gas pump stopped so they said let me go into the gas station and go to another pump and I looked to my right and seen keys at the gas pump door.  Took the keys, got in the vehicle and attempted to drive it off.

“The person approached me like, ‘What are you doing?’ and I said ‘Okay, I’m just messing with you.’ By that time I got out of the vehicle and ran, walked away. As I began to walk away, I seen someone backing out of a driveway and I asked him if I could borrow the vehicle ‘cause my family had just been in an auto accident – I need to take them to the hospital…They said no, but you can call 911. They left the vehicle running and I got in the vehicle and drove off.”

A few days after driving off with a stolen vehicle, Penn was arrested trying to cross the Mexican border. At the age of 30, he pled guilty to two counts of second-degree robbery and was sentenced to three years, eight months in California state prison. After serving a little less than half of his sentence at Vacaville, working inside the prison’s firehouse, Penn was released with good time credit.

“I ended up getting a job driving a truck for Sutter health laundry and then I was going to school in the evening times, stuff like that,” says Penn.

Five years later in 1996, though, after enrolling at Sacramento State University, Penn was in trouble again.

“I was in and out of relationships and money situations and was doing fraudulent transactions – white collar crime,” says Penn.

At the time, Penn says he didn’t know anything about the three-strikes law or the possibility that he could be sentenced from 25 years to life for a non-violent, non-serious crime.

“To me the gain was worth the risk of doing two to three months in county jail. I had got arrested before, in the past and they gave me thirty days community service so I was getting all this money and I wasn’t getting punished,” explains Penn.

But things had changed. It was 1996 – two years after the state legislature and California voters passed the three strikes law. It imposed a 25-year to life sentence for any third felony conviction, no matter how minor, if the defendant already had two prior "serious" felony convictions. Threatened with six counts of commercial burglary and 25 years to life for each count, Penn went to trial. He was found guilty. The judge sentenced him to 29 years to life – he’d be getting out at 63.

In November 2012, Penn is still in San Quentin, and more than 10,000 people have been sentenced to 25 years to life under the state’s three-strikes law, and nearly half of them are African American, including Penn.

Now, with the passage of Proposition 36, he and many others hope to get out of prison – and Penn hasn’t wasted any time. He’s compiled a file and is ready to begin his petition for re-sentencing.

“It’s pretty much  together, my writ. I have a couple of letters of recognition to receive from some of my sponsors and I know nothing’s going to happen until next year anyway. So when I do submit it I want it to be to the point where they can’t deny me,” says Penn.

But first someone in the state had to identify the estimated 3,000 prisoners the state thought might qualify for re-sentencing.

“We scrambled fast. Getting all our documents together. Meeting with the institutions. Preparing the list not only statewide but broken down by institution to prepare the institutions for this” says Kathleen Allison, Deputy Director of Adult Institutions for the California Department of Corrections and Rehabilitation after the Proposition was passed.

“CDC was quite helpful,” says Amanda Benson, the Assistant Public Defender for Sacramento County. “They did compile a list of people that they determined were eligible. … Once we got this list and started to identify all these people we had a mass mailing of this packet and all this information to all those people in CDC serving 25 to life sentences and then we waited for packets to come back.”

In mid-December, a month after the election, Penn calls me collect from a pay phone inside San Quentin State Prison. I accept the call. It’s the only way I can follow his petition for re-sentencing through the Sacramento Superior Court.

Penn received a screening questionnaire from the Sacramento Public Defender’s office.

“It’s like an 11-page questionnaire that asks questions about my sentencing, what I was sentenced for, my prior convictions are, asking questions about my counselor, questions about what I would do when I’m released,” and more, says Penn. “So they asked pretty extensive questions. Some of it I thought was over the top, but I filled it out and mailed it.”

Amanda Benson from the Public Defender’s office says the questionnaires came back quickly. Benson and public defenders around the state were reviewing case files and petitions. For each petition, the court had to file a subpoena with the CDCR for a complete copy of the inmate’s Central File.

As of today, the CDCR has sent more than 2,200 case documents to the courts. The CDCR’s Kathleen Allison says the paperwork is overwhelming: “If I were to show you Central Files, they would range from a couple of inches to a couple of feet.”

Technically the CDCR has five days to respond to a subpoena, but Allison says it’s taking 20.

“I certainly don’t think we realized the magnitude, the poor institutions. I know how hard we’re working up here. I used to be an old litigation coordinator years back I couldn’t imagine this volume,” says Allison

On January 1, a little less than two months since the election, Penn calls me collect again from inside San Quentin. His future is riding on the processing of his paperwork from one legal checkpoint to the next.

“I realize it’s a process because, unfortunately, they sentenced so many people, in particular African-American people to life sentences for non-violent, non-serious crimes who had no violent background that now it’s taking a toll on cleaning it up. And I’m patiently waiting, I’m staying focused” says Penn.

Public defender Amanda Benson says after all of the documentation on Penn’s case have been collected, a copy is sent to the District Attorney’s office. At that point, Sacramento’s Assistant District Attorney, Karen Maxwell makes a recommendation to the court whether or not to oppose the petition for re-sentencing.

“My role as a deputy D.A. is to achieve justice,” says Maxwell. “That’s the bottom line. And is it just to have someone in custody locked up, doing a sentence today on a case where he might have just sought local county jail time today? There’s a percentage where we just say this person is not eligible because of their serious danger to public safety.

It’s mid-March, five months after the election, and Penn calls. His voice is tight. He says inmates are keeping track of how many three-strikers from San Quentin have gone home. Some have left without warning. Others, he says, have been given a day or two to say goodbye. But no one has left from Sacramento County.

“I’m um, a little concerned on the time that is taking between each interval, 30 to 60 days between intervals,” says Penn. “When one thing is done it seems to delay the process. I ask other guys from Sacramento County and they’re frustrated as well. We just haven’t heard anything. It seems like people from other counties are getting calls and released.”

Then, on the morning of April 4, I miss a call on my cell phone. “Hello Nancy. This is Curtis. Just calling to let you know I just got out 10 minutes ago and I’m at the San Rafael transit. I was hoping I could get in touch with you. Trying to get a lift to the airport. Right now I’m trying to get myself a duffle bag so I can transport some of the stuff I brought out with me in a duffel bag so I can get on the Marin airport and go to the airport. I’ll call you once I get home. I’ll be visiting my family. a message on my voicemail.”

I drive to the San Rafael Transit and there, standing at the curb is Curtis Penn. Still wearing his light grey prison sweatshirt and blue jeans, he’s holding a large plastic box, a white envelope with his final discharge papers, about $200 in cash the CDCR gave him as his “gate money.”

It took five months from the time Curtis Penn petitioned to be released from prison. Not on parole, actually. Fully discharged, Penn took a flight to southern California where he would spend a couple of weeks visiting his father and three sons. He now lives in transitional housing in Oakland while he adjusts to life on the outside.

“I thought it would be like someone that was caged up and then released into the freedom, the world. And you know how a caged animal wants to be free. But I have a sense of calm about me. This is normal. Being in prison is not normal,” says Penn.

Since Proposition 36 was passed by the voters in November, nearly 500 inmates sentenced to 25 years to life under the three-strikes law have been re-sentenced and released from California prisons. Another 2,000 have filed their paperwork and await a decision.

Nancy Mullane develops, reports, and produces feature stories for This American Life, National Public Radio, and KALW. She is the author of the book Life After Murder: Five Men in Search of Redemption.