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Thirteen Strikes and Still Not Out. The Media Gets Three-Strikes Wrong Again. Robert Ferguson is Not a Victim.

Reporters searching to illustrate the cruel and arbitrary nature of California’s three-strikes law have struck out again.  Their careless advocacy is actually providing opportunities to inform the public about facts that should have been part of the reporting on this subject all along.

Particularly, that the three-strikes law isn’t arbitrary.   Prosecutors have wide discretion in choosing to apply “three-strikes,” or not.  All that hype about an hysterical public forcing prosecutors and judges to send away shoplifters and pot smokers for life sentences?  Not true.  Prosecutors choose to forgo three strikes from 20% to 40% of the time when they could use it.

Petty criminals striking out for a series of minor property crimes?  Not true.  The California law actually requires the first and second “strikes” to be for serious and/or violent crimes.  When the third crime is a lesser offense, that’s when prosecutors often choose not to pursue enhanced sentencing.

Three convictions over a lifetime, even for youthful offenses, and then you’re out?  That’s not the way the law works.  Look at the real records of the people sentenced.  Routinely, only some of their prior “serious and/or violent” offenses are counted as first and second strikes.

Yet the wildly slanted reporting continues.

For years, the media poster boy of three-strikes was Jerry DeWayne Williams, mythically incarcerated for life for stealing a slice of pizza (a story that is not true, no matter how many times it is fervently recounted by overstimulated sociology professors — see my post, here).  In fact, Williams has been arrested three more times with virtually no consequences since that not-actually-serving-life-for-pizza-theft incident.  He threatened to kill someone, in front of a police officer, and got released.  He violated probation — twice — and got released.  Yet the “experts” don’t relay such facts to their students when they rant against three-strikes laws and the cruelty of the American Justice System in the front of the classroom.

Nor do they explain why they have been using such an inane falsehood to illustrate their arguments against this law for more than a decade now.  Have they no better case to make?  Such as, maybe, a real one?

Recently, the activists-cum-academicians-cum-journalists excitedly found another fake “three-strikes victim” to play up.  Robert Ferguson, an ugly piece of work, became an instant hero when he shoplifted a bag of cheese from a grocery store and a prosecutor tried to have him put away for 11 years, prompting wild outcry.  Activist rage ran high against the prosecutor, and the “arbitrary” system, and the cruelty that lies in people’s hearts, etc. etc. etc.

Thanks to another little-contemplated fact of three-strikes laws — that judges also may exercise sentencing discretion — Ferguson will actually be out of prison in about two years.  Yet the newly-minted myth of his oppression will undoubtedly live on in the hearts of sloppy reporters and college professors.

It is now apparently a hanging offense for a prosecutor to so much as request a strict sentence for a career criminal.

And, contrary to newspaper reports, Ferguson did more than steal a bag of cheese.  That was the less serious charge,  not that you would read it in the paper.  Marcos Breton, of the Sacramento Bee, offers a bracing corrective to the hagiography being built up around Robert Ferguson:

Robert Ferguson is the definition of a recidivist criminal, in and out of prison since the early 1980s.  He didn’t just steal a bag of Tillamook shredded cheese worth $3.99 from Woodland’s Nugget Market. He stole the wallet of a mom tending to her sick kid at a 7-11.  He’s broken into people’s homes numerous times. And every time he’s been released from prison, he’s committed new crimes and gone back in.  He could have been sentenced to life in prison long before now. His public defender, Monica Brushia, confirmed he has six strikes against him with all the burglaries and crimes he’s committed over the years.  Ferguson just hasn’t been sentenced that way. . .

Some would argue that 11 years is still too severe for Ferguson’s crimes – and [Yolo County Judge Thomas] Warriner agreed. With time served, Ferguson could be on the street in less than two years, Brushia said.  “He hasn’t gone around hurting people,” said Brushia, who added that Ferguson can’t control his bipolar impulses.  So what happens when he gets out of prison next time? “I told him, ‘You really need to stay medicated and get the psychological help you need,’ ” Brushia said.  Does Brushia think he’ll stay clean? “I’m not a fortune teller,” she said.

How contemptuous of her.  She should have to repeat that to Ferguson’s next victims.  For that matter, does she really think she’s doing her client a favor, getting him released to a situation where, according to her, he is a constant danger to himself and actually innocent people (if this bipolar stuff is true, rather than being the latest excuse reeled out to justify anti-social behavior)?  Ferguson has 13 previous convictions.  He has spent 22 of the last 27 years in prison for other crimes.

13 convictions.  13.  Six separate burglaries.  And it makes the international wire services and shrieking headlines in Europe when some prosecutor asked a judge to do something to protect the public from him?

It’s worth repeating that Ferguson was not only being prosecuted for shoplifting cheese.  He had an additional, more serious crime, for which the prosecutor was seeking the enhanced sentencing.  He thuggishly robbed a woman who was distracted when her sick child vomited in a 7-11.

Imagine if the media had reported truthfully:

Career Criminal With 13 Convictions Tried for Robbing Mother Tending Her Sick Child, Additional Theft

That sounds lots worse than what was reported by the brave truth-tellers of the MSM:

Man Who Put Cheese Down His Pants Faces Life Sentence

Make that “sounds worse” to everyone except the criminal-fetishizing New York Times, which calls the assault on the mother “petty theft,” and CBS News, which calls the robbery of the mother, and I quote, “(extremely) petty theft.”  Nice.

Marcos Breton continues:

The truth is, there is a good chance Ferguson will victimize someone again. He has nearly 30 years’ experience as a career criminal.  What if he breaks into a home, stumbles in on a family and panics?

Good point.  He’s a mentally ill career criminal who has already escalated to breaking into houses and attacking individuals in public spaces.  Who, besides Ms. Brushia, wants to bet that will end well?

The prosecutor in this case, Jeff Reisig, has been demonized. However, as Breton explains, Reisig virtually never uses three-strikes:

[I]n the end, Reisig wasn’t seeking a life sentence. After a psychologist’s report indicated that Ferguson is bipolar, Reisig sought 11 years.  Since 2000, only 12 people – less than 1 percent of Yolo’s felony caseload – have been sentenced to life under the state’s “three strikes” law, Reisig said.

To summarize: for the past ten years, more than 99% of the felons walking into a Yolo County courtroom have not been subjected to three strikes, and 12 were, a little more than one per year.  Yet this is not good enough for the activists: they want 100% of all felons to be given endless second chances.  In their eyes, every criminal is simply a misunderstood saint.  In their eyes, we are the only real criminals, for wanting to be safe.

The dishonesty of the media on three-strikes is impressive. Ferguson’s more serious offense goes largely unreported in the rush to condemn the prosecutor and make up sheer lies about the workings of our justice system.  Fewer than 1% of felons in Yolo county get three-strikes, and yet the New York Times uses the story to groundlessly blame the California budget crisis on the three-strikes law, squeezing in some misinformation about Jerry DeWayne Williams for good measure.  Meanwhile, misrepresentations spreads around the world.  The UK Telegraph gets the sentencing wrong and doesn’t include the wallet theft; the Guardian, likewise, runs multiple, inaccurate stories that neglect the actual charges and misrepresent the law.  What an embarrassment, all around.

This website has real statistics on California’s “three strikes” law.

9 Responses to Thirteen Strikes and Still Not Out. The Media Gets Three-Strikes Wrong Again. Robert Ferguson is Not a Victim.

  1. Our site broke the Ferguson story, the problem with Breton’s view on Reisig, is that he only knocked down the life requirement after we broke the story and the Sacramento Bee followed up as the result of our story. That’s why Reisig has caught flack on this.

  2. Tina says:

    Well, why not ask for Life? Especially when you know a judge is going to knock it down anyway, and the entire process of pleading is up for grabs as well? It’s the job of the prosecution to prosecute. I’m not trying to be pedantic here: this is the system we have. People have different roles. No prosecutor should catch flack for recommending a maximum sentence within a system where other players are demanding no punishment with no consequences for them, either.

  3. Shouldn’t the prosecutor ask for a reasonable sentence not try to game the system? People are forgetting that California is releasing inmates that have committed far worse offenses. Now we have a DA wasting resources that neither the county nor the state has on very minor offenses that frankly should have been charged as misdemeanors.

  4. Tina says:

    Well, unfortunately, the system is a game. And the prosecutor is the only one presenting the landscape of possible charges — which will inevitably be whittled down by the other parties. Of course, California has decided to let many, many unworthy inmates go free — as they have done, like all other states, throughout the last 40 years. Every single day, another shooting or murder or rape occurs that would not have occurred if we had a real justice system and meted out real sentences. Those are serious costs, costs we simply, routinely, cheerfully take in stride.

    In this case, I don’t think you’re taking seriously enough the multiple convictions for burglary, which indicate a pattern of transgressing serious boundaries (and possibly pled-down rapes, considering the length of time he spent in prison at the time he was sentenced in the past, from what I can see). And strong-arm theft? That’s a minor offense? just saying that proves my point. When somebody is in trouble with the law already, and commits more crimes, and his defense is that he has no ability to control his actions because of mental illness — well, at what point do you take him at his word (let alone his actions)? I think any shopkeeper (or intimidated customer) will agree that the immediate value of what is take in far less important than the threatening, impulsive, unpredictable behavior accompanying lawlessness actions.

    I should have said before that the point you made about the Breton editorial was sound. He misrepresented the story. However, that doesn’t justify criticism of the prosecutor, which is the relevant issue. It would be very helpful if you could shed some light on Ferguson’s entire criminal past — not just convictions and sentences, but arrests and original charges (prior to pleading). I think it is a very interesting case, and one which merits more discussion.

  5. When we ran the original story, we laid out all of the past convictions, the previous conviction I think was 15 years before and the bulk were almost 30 years old, and yes he was in the system for nearly that entire 30 year period, but the guy is in his mid 50s, most likely his most serious offenses are in the past and given the lack of resources we have in California and this county, it wasn’t the best use of resources.

  6. Heywood says:

    You have to separate the career criminal part from the mental illness part. Most people with a diagnosed illness are less likely than the general population to commit violent crime while more likely to be victims of violent crime. As much as the bipolar disorder in particular is often demonized in the media, the bipolar are no more violent then the general population (except to themselves through the crime of self murder).

    What is left is that he is a career criminal who has demonstrated the inability to live in a civil society. Depending on whether he is a shit person or if this is just how his particular flavor of mental illness manifests there are two choices. Prison or treatment in a state hospital till he is sufficiently rehabilitated to step down to progressively less restrictive places of treatment as he takes court ordered medicinal treatment for his illness for the rest of his natural life.

  7. Tina says:

    Can you send me that link? Thanks.

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