The Guilty Project: An Interview with Mike Romano and Susan Champion

On April 28th, the life sentences imposed on James Washington and Pablo Garcia under the infamous Three Strikes Law were vacated. After fighting their release for over seven years, in a stunning reversal, the Los Angeles District Attorney’s Office conceded that the two men, who had each already served over two decades in prison, should be released and their crimes reclassified as misdemeanors. 

Mike Romano and Susan Champion, Director and Deputy Director of the Three Strikes Project based out of Stanford University, represented both Washington and Garcia in their resentencing petitions. Both were convicted in 1996 ― Washington for stealing a $200 stereo from a department store, and Garcia for stealing $180 worth of clothing from a parked car. Romano and Champion strive to correct for the unintended consequences of a law originally implemented to “keep murderers, rapists, and child molesters behind bars, where they belong,” but which disproportionately affected vulnerable populations, particularly the poor and mentally ill.  

Amanda Knox  

I wanted to start off by asking about the Three Strikes Law. I was born in 1987. This law was made in 1994, so I do not remember it. Can you describe to me what the environment was like when this law was put into place?

Mike Romano 

The law was originally inspired by a really horrific murder in Fresno, California in 1993, where a 17-year-old girl named Kimber Reynolds was out on a date, and a couple of guys came up to her and her boyfriend on a motorcycle, stole her purse, a fight ensued, and she was shot in the head and died. It was just horrible. And Kimber’s father, Mike Reynolds, channeled his grief in order to try to fix what he saw was a glaring hole in California’s sentencing laws. The two men who were responsible for his daughter’s murder were on parole at the time, and so he devised the Three Strikes Law. People’s initial reaction was that it was too harsh and didn’t make sense and swept too many people under the rug. And then a couple of months later, an 11-year-old girl in Petaluma, California was kidnapped from her bedroom during a sleepover. She was missing for a long time before her body was finally discovered. And it was really the combination of stories, Kimber Reynolds first, and then Polly Klaas, that really galvanized California to pass this law. And it spread across the country. Even Bill Clinton called for a national Three Strikes Law in the State of the Union, just a few weeks after Polly Klaas’ body was found. And it really spread like wildfire throughout the country. And now, depending on how you count, about 30 to 40 states have some version of a Three Strikes Law. California’s is the most famous because it’s really where it started and it was most widely used. All of them have slightly different variations, but that’s really the genesis of it. 

Amanda Knox

As tragic as these murders were, people are murdered every day. What was it about this time period that galvanized people to be so tough on crime?

Susan Champion

At the time there was just a lot of fear in the post 80’s crack epidemic. There was a lot of publicity about violence and about rampant crime. And, like so many bad laws, I think a public response to these anecdotal situations meant that we swung very far to punishment as a means of addressing some of these things. 

Amanda Knox  

Tell me about yourselves and how you became interested in the impact of the Three Strikes Law on society.

Mike Romano  

I used to work at the Innocence Project in New York City, before I was in law school. And then I went to law school and was clerking in Seattle and what came across my desk was two cases that just stuck out like sore thumbs. One case was a person who was serving life under the Three Strikes Law for aiding the sale of $5 worth of cocaine to an undercover police officer in Los Angeles. This is the case of Willie Joseph. The police walked up to him and said, “Can you get me some crack?” And Willie said, “Well, I don’t know. I don’t have any. But my friend could sell you some.” And for that introduction, Willie got sentenced to 25-years-to-life. He had absolutely no representation. The case was decided in a special kind of hearing in under a minute. The decision that was released is literally four sentences long. And then a similar case where a guy got sentenced to life for forging his nephews driver’s license exam. His nephew didn’t speak English well, so his uncle took his DMV exam, and of course, at the end of the DMV exam you have to sign your name under penalty of perjury that it was actually you that took the exam. And he was sentenced to life for forgery. Those two cases back to back, the absolute utter lack of representation, the lack of attention that was paid by the courts, really stuck out to me. So I began to think more about those cases, studying both the litigation strategy and political strategy around wrongful convictions and death penalty cases, to see if they could be applied to three strikes cases. And kind of as an experiment, we found a couple of cases, and I approached Stanford to say, “We should start a legal clinic, like an Innocence Project.” And they said, “Well, that sounds neat, but really how many are there?” And as we began researching, it was just this thread on a sweater where nobody had been really paying attention. We’ve had 10 cases, and a dozen cases, and a 100 cases, and finally, there were about 10,000 cases in California of people serving life sentences for non-serious, non-violent crimes. They were disproportionately African American. They were also disproportionately mentally ill and homeless. And it became clear to me that you don’t get sentenced to prison for ― a client stole a pair of socks, or stole a jack from the back of a tow truck, or one dollar in change from a parked car, or for shoplifting ― if you don’t have some serious problem going on in your life. I sort of say glibly that our project, it’s the Guilty Project. Our clients are guilty, but the punishments are so grossly disproportionate that we felt like something could and should be done. 

Amanda Knox 

The Guilty Project. I love that. How about you, Susan?

Susan Champion

So I actually came to law school pretty late in life. I was 40 years old and the oldest person in my law school class at Stanford when I started. I had been working in health care in Seattle for almost a decade and I felt like I really was seeing this incredible disproportionate effect on the poor, non-English-speaking, people of color. All of this was coming up in my healthcare work. I wanted to unpack that. And in law school, I began to see these announcements of the work that Mike’s clinic was doing, so I signed up for the clinic and Mike was my teacher. I had a client who was serving a life sentence for selling some beer steins that he had stolen out of a commercial storage unit, and his prior two strikes were stealing his mom’s VCR and a daytime burglary of a home where nobody was home, nobody was hurt. And I thought, “This is crazy.” I knew I was going to go into a lot of debt in law school and I thought, “It’s worth it if I can get one person out of prison who’s serving a life sentence for something so minor.” And that’s how I started. 

Amanda Knox 

Looking at this Three Strikes Law and life sentences given to people for stealing a VCR, a part of me is thinking, who in their right mind would sentence someone to 25-years-to-life for such a minor case? You mentioned people weren’t paying attention to how this law was being applied, but someone was prosecuting these cases and someone was handing down these sentences. Why weren’t those people looking at how absurd that was? Who’s accountable for this?

Mike Romano 

That’s the $50,000 question. In the beginning, when the Three Strikes Law was first passed in 1994, it was incredibly popular. It was passed by 70% of voters in California. Even Democratic President Bill Clinton embraced it. So, everybody in California, judges, prosecutors, really felt like this was what the voters sincerely wanted across the country, and that they were enforcing the will of the voters. But I don’t think that that’s much of an excuse. Judges and prosecutors are sworn to uphold justice and are supposed to be standing up for what is right regardless of public pressure. And really very few are willing to do that. And that really extends to this day. We had a case not long ago, where our client was serving a life sentence for stealing three cans of instant coffee. He served 20 years of that sentence already. He’s had a perfect prison disciplinary record. He’s 70 years old. He was recommended for release by the Department of Corrections. They said, “He’s rehabilitated. He’s not a threat to public safety. His continued incarceration is no longer in the interest of justice.” We had to get that blessed by the court. And we had a meeting in chambers with the judge and the prosecutor who basically said they’re not willing to take the political heat for releasing this guy should something go wrong. And I just think it’s unconscionable that not only are judges imposing these sentences in the first place, but that when they get the opportunity to revisit them, many judges and prosecutors fight them. We’ve been fighting in Los Angeles County for eight years for some of our clients to be freed, and just in the past couple of weeks, prosecutors have finally conceded. I will say that we were able to pass reforms to California’s Three Strikes Law in 2012. But the leader of that reform effort was an incredibly tough-on-crime, right-wing, Republican prosecutor from Los Angeles, who had sent more people to death row than the entire state of Texas. And he was the person who stood up and said, “This is absurd.” And he and us partnered to reform the Three Strikes Law and, but it really took somebody like that, whereas his predecessor, a Democratic, progressive, anti-death penalty prosecutor, did nothing and in fact sent more people to life in prison than probably any other person in America. 

Susan Champion  

And I want to point out, too, that it’s such a risk averse kind of a space. This kind of stuff is still going on today. The prosecutors in one county right now are very strenuously opposing a client of mine who has earned three associate’s degrees while in prison, who has taken hundreds of hours of rehabilitative resources, and become a certified drug and alcohol counselor and is confined to a wheelchair. And the prosecution refuses to consider that he might be ready for release because he had a history of getting into fights. And it’s just this complete fear. As Mike alluded to earlier with the coffee case, it’s very easy to keep someone in prison. It’s much easier to keep them in prison than to risk that someone’s going to come out and commit a crime. This is extending now even to parole. People who have been traumatized by being in prison for life for minor crimes are now going before the parole board and the parole board is denying them parole, because they had a cell phone a year ago. People are absolutely terrified [to] let somebody out without being able to say this person is perfect. And that is just an inherent problem with this system.

Mike Romano  

And, you know, we work in Palo Alto, which prides itself as being one of the most progressive communities in California, if not the country, but a judge here was recently recalled from the bench and fired by popular vote after handing out a lenient sentence. It was a horrible crime, a sexual assault on Stanford campus, but the judge in that case, Judge Persky, was following the advice of probation recommendations and gave a lenient sentence. And the backlash was extraordinary. It is not some distant history where prosecutors and judges who stand for election fear being painted as soft on crime.

Susan Champion  

And that sends a message to all the other judges and so the defendants that are going to really face the harsh outcomes are generally going to be the poor people of color.

Amanda Knox 

Right. Who can be swept under the rug.

Susan Champion  

Exactly.

Amanda Knox  

I wrote an op-ed in response to the Stanford rape case, precisely making the argument that maybe we should be listening to probation officers who say maybe there’s an alternative to incarceration here. I know that we have to take these crimes seriously, because there are victims involved, but treating prison like the catch-all solution to everything bad that happens in the world is a really simplistic and damaging viewpoint that very often is coming from people who have never been to prison. And I think it goes back to this idea of people thinking that there are certain kinds of people, certain career criminals, who are often all too young when they’re labeled that, who are just going to be criminals, and they’re different than the rest of us. Trying to empathize with people who look at prisoners that way, is there any truth to that? Or is that just society abandoning whole populations of people?

Susan Champion  

That’s one of Mike’s least favorite phrases. “Career criminal.” He hates that.

Mike Romano  

Like that’s an aspiration. Their career is to be a criminal. 

Susan Champion  

I just do not believe that there is a truth to someone being a certain type of person. I think that our clients have themselves been victims of trauma. So many of them have come from not only a home life or lack of one that has created very few options for them, but they’ve also been targeted by and abused by the system, whether it’s law enforcement, whether it’s government agencies. There is super clear evidence that crimes are committed by a very particular demographic, young and male generally, and that people age out of crime, and there are protective factors that make someone much less likely to do so. Things like having a home, having a partner, having a job, all of these things have a huge impact on somebody’s risk of either committing crime or recidivating, had they committed crimes in the past. Obviously there are going to be outliers. Obviously, there are some people that may be incorrigible or unable or unwilling to conform. But I think that they’re by far a tiny, tiny minority. This idea that people are criminals and will be always is just bunk.

Mike Romano  

I think the data shows that incarceration is criminogenic. And what I mean by that is, in many cases, putting people behind bars only makes them more dangerous to public safety, especially when you put them behind bars for such a long period of time. Incarceration can endanger public safety. We’re really trying to find reforms that not only reduce incarceration, but improve public safety. It’s too often put as a dichotomy between reducing incarceration and risking public safety. We’re going to show the opposite, that we can actually improve public safety and reduce incarceration at the same time. Part of it is finding alternatives to incarceration, services for people. Part of it is just shortening sentences. Part of it is improving reentry prospects for people. When you sit down in prison and meet these people, and realize what they’ve been through in their lives and the suffering that they are being put through, in many cases since childhood, it’s heartbreaking and extraordinary. And one of the things that we are particularly proud of is that our program works with law students. We bring Stanford Law students who are at the top of the legal pyramid to sit down in prison, sometimes maximum security prisons, across a table with somebody who’s at the absolute bottom of the criminal justice system, to find that connection and that humanity between people who are so far apart in our society. And then, of course, the great payoff is when we’re able to get these guys out of prison. But that proximity to the injustice, it’s one thing to look at data and graphs and charts. It’s another thing to sit across the table from somebody that this is actually happening to. This is not my idea, you know. Bryan Stevenson’s lesson to people, let’s get you proximate to the injustice that you see in the world. It’s incredibly powerful and life changing for me, and our students, and, of course, for our clients who’ve been abandoned. Many of our clients have never had a single visitor in prison for 20 years. They were homeless drug addicts, they had dysfunctional families to begin with, and they’ve been in prison for 20 years. They usually haven’t seen the inside of a visiting room, and then all of a sudden, this bright, shiny, Stanford Law student and professor walk in the door.

Susan Champion  

The vast majority of people that go to prison come out. And prison does absolutely nothing for helping them learn the skills that they need to be able to succeed when they come out. So a big part of what we do is make sure that our clients have resources available to them. I remember when I was a student in the clinic, I spent hours and hours trying to find a place for my clients to land. Mike and I visited some reentry places and there was really a desert of resources available. Thankfully, I think things are improving, but the whole system could really use a very close look.

Amanda Knox  

I wanted to ask about James Washington and Pablo Garcia. Who are they? What do their stories reveal about the Three Strikes Law, and the criminal justice system in general? 

Susan Champion 

There were two ameliorative propositions that California voters overwhelmingly approved in 2012 and 2014. Proposition 47 requires that a court find that if you were released, you would be likely to commit one of a series of very, very heinous crimes, for example: murder, a violent rape, a child molestation. Both Mr. Garcia and Mr. Washington were eligible for relief under Proposition 47. That means that if we were to take those cases to court, the judge would have to find that they were likely to commit one of those crimes. Of course, in order to be eligible for Prop 47, you can’t have committed one of those crimes. So you would have to have found that Mr. Garcia and Mr. Washington were likely to commit crimes they’ve never committed before and have actually become more violent now that they were in their 50s and had spent 20 plus years in prison. The District Attorney was really fighting against their release, particularly Mr. Garcia. The District Attorney spent a year on trying to get mental health records to show that this person was dangerous. And then a couple months ago, they approached me and said, “You know, we’re not sure that it’s really worth it to go forward on these cases.” They acquiesced. It was really wonderful. But neither of them should have been in prison for as long as they were. Both of them are incredibly vulnerable. Both of them have histories of mental illness. Both of them have histories of abandonment and neglect, of abuse. And both of them committed really, really minor crimes to land them into a life sentence. 

Mike Romano  

Both of those crimes would now be mandatory misdemeanors if they were prosecuted today, and they would get less than 40 days in county jail. And instead they’ve served over 20 years. It’s really extraordinary.

Amanda Knox 

What was it like to have a DA push and push and push against you for years, and then suddenly come up to you and be like, “Eh”?

Mike Romano 

This is dynamic in court, where before court starts, there’s chit chat amongst the attorneys and the court clerk and the bailiff, and everybody’s supposed to be cordial and polite to one another, and everybody has a job to do, and we’re all professional. And to a large degree, I participate in that. At the same time, especially when our clients are sitting right there in handcuffs, in an orange jumpsuit, I find it extraordinarily difficult to carry on a cordial relationship with people who are fighting to keep this poor, old, usually black man in prison for the rest of his life. And I’m supposed to chit chat about, you know, our kids soccer games or something like that. And I know that these DAs for the most part, especially in Los Angeles, are following orders. It’s not their decision in many cases. In fact, some have come up to us and said, “I tried to push to get your guy out, but my superiors said no.” That’s happened. We’ve had conversations in chambers where prosecutors say, “You know, judge, if it was up to me, I’d let this guy out, but my boss tells me what I need to fight this case.” At the same time, I know how beneficial it can be to our clients to have a good relationship with these prosecutors who have so much control over their case. And of course, I want to maintain professionalism and all that, but it’s sometimes very trying. Susan is the friendliest person on the planet. Susan is not only an extraordinary litigator, but she’s very friendly and has managed to maintain very positive relationships with these prosecutors, who I think like and respect what she does.

Susan Champion 

I think Mike is giving me a little too much credit. As always, it really does lie with the prosecutor. I think LA lags behind every single other county in terms of processing these cases. After the initiative passed, something like 3000 people became eligible for this relief, about 1000 of them were out of LA, and now, almost a decade later, they’re still working on these cases. And part of that is the District Attorney in LA set up a policy to just oppose every single one of them. And the deputies in charge were really in DA mode, where we have to win and we have to be punitive and we have to do everything we can to show that our decision was the right one in the first place, to go for a life sentence and we’re not backing down. Recently, their leadership has been more amenable to really looking at each case individually. The prosecutor still holds a lot of power, and whoever is in that Head Deputy chair is still really, really the one in control. Being nice helps get things done a little more quickly, but ultimately, it really does come down to whoever’s in charge on the other side.

Mike Romano  

I will also add, in Los Angeles, there is a movement to elect a progressive prosecutor. And the current head DA is in an election. She’s facing somebody who’s challenging her to her left, who’s actually one of the most vocal advocates for Three Strikes reform. His name is George Gascón. Nobody would say to our faces that this change of heart in the DA’s office has anything to do with the Gascón campaign, and I don’t know if it is or not. Those are dynamics that are in the air. Maybe she’s just responding to what she perceives is her electorate changing. But Los Angeles is the largest prosecution office in the country by a lot. If it was its own state, it would be like the fifth biggest state in the country. There are more trial judges in Los Angeles County than the entire federal judiciary. So it’s an incredibly large machine and of many layers of bureaucracy. And when I said the DAs that we’re dealing with in court, they’re following orders from higher ups, they’re not responsible for these decisions in many ways. But the policy trickles down in a myriad of ways through an incredibly complicated bureaucracy.

Amanda Knox

It sounds like ultimately it comes down to all of us, and whether or not politicians are afraid that they’re going to be held accountable either for draconian laws that are unfair and ruin people’s lives and communities, or if they’re going to be held accountable for crimes that take place that are shocking and harm people and harm communities. And they’ve chosen a side because that’s the side that the electorate has been on for so long. And it’s only now that the electorate is understanding that it’s us who they’re prosecuting. All of us.

Susan Champion 

Yeah, we are the people. 

Amanda Knox  

How does the electorate have a more sophisticated understanding of crime and crime resolution?

Susan Champion

A lot of my clients’ parents voted for the Three Strikes Law because it was sold to them as: these are really bad people and they can’t stop committing crimes and they’re wreaking havoc on our communities and they’ve got to be stopped. Right? I’ve had my clients’ parents say to me, “If I had ever known that the Three Strikes Law was going to do something like this to my child, I would never have voted for it. I would have spoken out against it.” It’s very easy for people to misunderstand the impact of some of these laws.

Mike Romano 

When we ran our campaign to reform California’s Three Strikes Law, we ended up winning with 70% of the statewide vote. We won every county in California, even red counties that voted for Republican presidents. And I think really showed robust, genuine interest on the part of voters towards criminal justice reform. Year after year after year, California voters have enacted really important criminal justice reforms. Our polling also shows that voters still feel that the system is unfair, and want a better justice system. Originally people thought, “People want criminal justice reform because it’s so expensive.” So we poled on that. “Why did you support proposition 36?” And it turned out, yes, of course, people don’t want to spend unnecessary money, but the main reason why people supported it was for fairness purposes, that a life sentence for this kind of crime was unfair. And that also gave us a lot of hope, that it isn’t this cynical, “Oh, people don’t want to just spend money.” They really understood that these sentences were unfair. The second thing is, there’s just been this real transformation in the past 10 years about the idea of mass incarceration, to the point where even President Trump, despite all his rhetoric, signed the First Step Act, which is a reform to the federal Three Strikes Law that has released more people than were released on under programs that President Obama sponsored. So we work across the aisle, and I think that there is widespread public support for criminal justice reform, certainly in California, but I think beyond. I think people have realized that the policies that we have now are not only unfair, but are not doing a tremendously good job in terms of improving public safety. And so again, the sweet spot is finding reforms that reduce incarceration, increase fairness, at the same time. Not just maintain public safety, but actually improve it. So that’s really our mission.