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Three Strikes, He’s Out

news1Santa Cruz County’s only Proposition 36-eligible inmate is released

When Kevin O’Connell was sentenced to life in prison back in 1995, he had been convicted of possession of a stolen necklace. His previous felony convictions had occurred more than 15 years prior.

However, under the state’s three strikes sentencing law, a Santa Cruz County Superior Court judge saw fit to sentence O’Connell to life in prison. O’Connell is the only so-called three-striker from Santa Cruz County to become eligible for re-sentencing under Proposition 36, a ballot initiative passed by voters last year to reform the state’s three-strikes laws.

On Thursday, Oct. 31, O’Connell, who walks with a slight limp, left the Santa Cruz County courthouse as a truly free man for the first time in more than two decades. Judge Ariadne Symons re-sentenced O’Connell to the attorneys’ suggested seven years and four months, with credit for the time served.  She praised the support shown by his friends and family, who accompanied him to the court hearing. His attorney, public defender Jerry Christensen, told her that his client was not the same man he was when he was sent to prison. 

“I agree with the observation that you are a changed man,” Symons told O’Connell, who wore a dark gray suit and striped tie, his gray mustache neatly trimmed.

Symons agreed to release O’Connell out of custody on his own recognizance earlier this year, to give him a chance to prove to the court and prosecutors that he no longer poses a threat to the community. Santa Cruz County District Attorney Bob Lee says his office has worked closely with Christensen and O’Connell’s family and friends to establish a re-entry plan preemptively. So far, he has been successful on his ordered release, Lee and Christensen say.

O’Connell, now in his fifties, is working for a friend’s commercial real-estate firm and attending numerous doctor’s appointments to deal with his ongoing health issues, which include hepatitis C and cirrhosis of the liver.

O’Connell is one of dozens of inmates statewide who have gotten a second chance under Prop. 36. The ballot initiative, which was passed by nearly 70 percent of voters, changed the state's three strikes law to require that the third felony be a serious or violent crime to mandate the automatic life sentence. Prior to that, California was the only state with a three strikes law in which a third strike could be certain "non-serious" crimes such as shoplifting or missing a parole appointment.

The state’s three-strikes law, considered the strictest in the country, was implemented back in 1994, fueled largely by the kidnapping and murder of 12-year-old Petaluma resident Polly Klaas by Richard Allen Davis, an ex-convict with a lengthy criminal history.

The new revisions passed last year applied retroactively to many inmates throughout the state. At the time of last year’s election, an estimated 8,000 third-strikers were housed in California’s prisons. Of those, about a quarter had a third strike that was a comparatively less serious crime.

Under Prop. 36, an inmate has to petition the court where they were last sentenced for a reduced sentence. A state judge may grant these petitions only if they determine the individual’s release wouldn’t create “an unreasonable risk of danger to public safety.”

news1-2District Attorney Bob Lee (left) shakes hands with Kevin O'Connell (right), pictured here with defense attorney Jerry Christensen (center), on Thursday, Oct. 31.The Santa Cruz County District Attorney’s Office is fairly judicious in its use of the three strikes policy, with far fewer third-strikers sent from our county to state prisons than from many other counties. At the time of the new law’s passage, there were only about a dozen three-strikers serving life sentences out of Santa Cruz County, according to state records.

“We took appropriate discretion and still do,” says Lee.

Santa Clara County, for instance, has had much more of a problem with the changes due to the sheer number of inmates to whom the revisions applied, he explains. County officials there recently approved a plan to offset rent for newly released three-strikes inmates, among other efforts being made to help with the transition back into society. Meanwhile, a federal three-judge panel is urging the state to consider releasing more three-strikers from prison in order to reduce the ongoing issue of prison overcrowding.

Still, while the Santa Cruz County District Attorney’s Office hasn’t used the three-strikes policy as often as other counties, that doesn’t mean it hasn’t been used for leverage, say defense attorneys. The three-strikes laws gave authorities a lot of sway, Christensen says, allowing prosecutors statewide a certain “god-like power” in wielding the threat of longer sentences. The threat of a life sentence may have pushed many cases to settle in a plea deal rather than take the chance of a trial.

The Stanford Three Strikes Project, the only legal organization in the country dedicated to California’s three-strikes sentencing law, recently released a progress report on Prop. 36. The report, released in September, found that while more than 1,000 inmates have been re-sentenced pursuant to the revisions, more than 2,000 eligible cases are still outstanding. Of those, more than 800 are in Los Angeles County alone.

Perhaps more importantly, however, the report found that the recidivism rate for inmates released under Prop. 36 is 2 percent, compared to the state average for all released inmates of 16 percent.

O’Connell grew up in Santa Cruz County, the son of a California Highway Patrol officer and a mother who Christensen calls “one of the nicest people in the world.” He was an honors student, a talented athlete, and “very verbally acute,” says Christensen, who has known the family for years.  But medical issues led O’Connell to get hooked on heroin, and that’s “been his life’s plague,” says the veteran attorney.

O’Connell picked up a second-degree commercial burglary charge in his early 20s, and then later a robbery charge down in Los Angeles County. Those were followed by a first-degree commercial burglary and an assault charge stemming from a fight. Two of those convictions were considered strikes. It wasn’t until around 17 years later, however, that O’Connell picked up what would become his third strike—a felony conviction for possession of stolen property. That’s when then-Judge Michael Barton sentenced O’Connell to life in prison under the state’s three-strikes law—a decision that has bothered Christensen for years.

“Kevin has never really been violent,” he says, adding that even O’Connell’s probation officer argued that O’Connell didn’t fit the profile of a violent offender—the type of criminal the state’s three-strikes law was aimed at protecting the community from.

The District Attorney’s Office disputes that contention, and says O’Connell posed a significant risk to the community at the time of the sentence.

Judge Barton agreed, saying that he couldn’t in good conscience strike any of the strikes and O’Connell was immediately shipped off to San Quentin State Prison. He’d later spend time in Pelican Bay State Prison, the state’s notorious so-called “super-max,” which is usually reserved for inmates deemed the worst of the worst.

Symons says she doesn’t criticize Barton’s sentencing decision and believes it was completely appropriate at the time. She agrees, however, that O’Connell is a good fit for re-sentencing under Prop. 36.

“You’re not going to get those years back,” the judge told O’Connell. “But you’re the only one who can make sure you don’t go back there.”

O’Connell spoke few words to the judge and declined comment, but hugged his family, friends and attorney outside the courtroom.

“He’s very relieved,” Christensen says of Symons’ decision to agree to re-sentence O’Connell.

He praised what he calls the graciousness of voters who passed Prop. 36.

“My hope is that he [O’Connell] will be able to essentially give back” for what he’s taken, says Christensen.   

Comments (1)Add Comment
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written by Isaac Ramirez, November 06, 2013
Former 3 striker and i was released Under Cruel and Unusaul Punishment after serving 6 years of my life sentence. I have been out now 11 years. I Pray the best for Mr O,connell and that he may truly transition back into the Community with help and support.

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