From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel in Washington.


And I'm Melissa Block at NPR West in California.

This week, we've been hearing about California's three-strikes law. It's the nation's toughest statute for dealing with repeat offenders. Even something as minor as shoplifting can count as a third strike. But not every prosecutor enforces the three-strikes law in the same way.

Today, a tale of two counties, as told by NPR's Ina Jaffe.

INA JAFFE: Kern County, in California's Central Valley, is known for agriculture, oil wells and country music. In legal circles, it's also known as the county with the highest rate of prosecuting and sentencing people under the three-strikes law. In his Bakersfield office, District Attorney Ed Jagels says he's proud of that record.

Mr. ED JAGELS (District Attorney, Kern County): Yeah, because I don't know one of these individuals that has been sentenced as a three-striker who didn't deserve the sentence. I don't know one of these individuals who would not have re-offended in serious ways had he gotten a short sentence instead of a longer one.

JAFFE: Jagels complains that the national media lie when they report on California's three-strikes law. They single out cases where the third strike was a nonviolent crime, but they never look at the whole record, he says.

Mr. JAGELS: It could be an auto theft. But if the individual has previously been convicted of, let's say, a rape, an assault with a deadly weapon with great bodily injury, it seems to me if he hasn't learned his lesson and we catch him for an auto theft, he needs that severe penalty of 25 to life.

JAFFE: Local media has fixated on what's come to be known as the doughnut case. Robert Fassbender was arrested for stealing a pack of doughnuts worth about a dollar. He's not a model citizen. He's been in and out of jail, mainly for petty crimes. But back in the 1970s, Fassbender had two convictions � two strikes � for robbery, so he found himself facing 25 years to life for the doughnuts. Shortly before trial, the charges were dropped, but not because the Kern County D.A. had any second thoughts about the case.

Mr. JAGELS: It was dropped because based on changed witness testimony, it wasn't certain that he was guilty. Had he been guilty, it would've been a perfectly appropriate sentence. The guy had a horrendous criminal record. He was a perfect candidate for the three-strikes statute.

(Soundbite of cars passing)

Unidentified Group: Amend three strikes! Amend three strikes, Amend three strikes!

JAFFE: Down the street from Jagels' office, about two dozen members of a group called FACTS - Families to Amend California's Three Strikes - were holding a demonstration in front of the Bakersfield courthouse. Katherine Keathing was holding a pink poster with photos of her sister Bernice Cubie, who's currently serving 25 to life. Keathing insists her sister is not a dangerous criminal, just a hopeless drug addict.

Ms. KATHERINE KEATHING: And in the process of supporting her habit, she was, you know, stealing and doing things like that and getting in prostituting. And the next thing you know, when they stopped her with the drugs, she wanted to resist arrest. As far as violent � carrying a gun or knife or weapon � I've never known her to do that.

JAFFE: Bernice Cubie is one of those cases that still haunts Mark Arnold. He was the public defender in Kern County for 14 years until he retired last month.

Mr. MARK ARNOLD (Former Public Defender, Kern County): Bernice Cubie was convicted in 1998 for possession of $10 worth of drugs. She is now 59 years old; she's a grandmother several times over. She's had cancer - it's not minimal cancer. She had one of her kidneys removed while she's in state prison, at state expense. Her serious felonies are more than 20 years old � and she still remains incarcerated.

(Soundbite of phone ringing)

JAFFE: Bernice Cubie is one of about 3,000 California prison inmates serving 25 years to life for nonviolent crimes. But it's highly unlikely that Cubie � or the doughnut guy � would have been prosecuted as third strikers just 100 miles south, in Los Angeles County.

Mr. STEVE COOLEY (Los Angeles County District Attorney): Because 25-to-life is the same sentence we give to first-degree murderers.

JAFFE: Says Los Angeles County D.A. Steve Cooley.

Mr. COOLEY: And to give that to someone who committed a petty theft, or a two-bit forgery, just seemed disproportionate.

JAFFE: The three-strikes law allows prosecutors to disregard some prior offenses. Cooley takes full advantage of that. He almost never charges a nonviolent offense as a third strike. Cooley says it's almost as if there were different laws in different counties.

Mr. COOLEY: The three-strikes law is probably not being evenhandedly applied because different prosecutors for different reasons � some ideological and otherwise � are coming up with their own policies - or in some cases, they don't want to have a policy they can point to. We're doing it right here.

JAFFE: Make no mistake, Cooley supports the three-strikes law. He just thinks it needs reform or it won't last.

Mr. COOLEY: That's how you lose good laws. When you disproportionately apply them, someone will take it away from you. Either the public will take that powerful tool away, the legislature might do it, or the courts might do it. And as a matter of fact, the Supreme Court voted 5 to 4 to uphold our three-strikes law. So four justices of the Supreme Court weren't real happy with how the three-strikes law is being applied in California.

JAFFE: But the three-strikes law is unlikely to be changed anytime soon. It's become such an icon in California's criminal justice system that Steve Cooley was drummed out of the State District Attorney's Association for trying to reform it. And just this summer, when California lawmakers were negotiating a plan to reduce the population of the state's woefully overcrowded prisons, amending the three-strikes law never came up.

Ina Jaffe, NPR News.

Copyright © 2009 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR’s programming is the audio.



Please keep your community civil. All comments must follow the Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.

NPR thanks our sponsors

Become an NPR sponsor

Support comes from