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Taibbi writes: "Thanks to a brand-new, get-tough-on-crime state law, Wilkerson would soon be sentenced to life in prison for stealing a pair of plain white tube socks worth $2.50."

Matt Taibbi at Skylight Studio in New York, 10/27/10. (photo: Neilson Barnard/Getty Images)
Matt Taibbi at Skylight Studio in New York, 10/27/10. (photo: Neilson Barnard/Getty Images)

Cruel and Unusual Punishment

By Matt Taibbi, Rolling Stone

27 March 13


n July 15th, 1995, in the quiet Southern California city of Whittier, a 33-year-old black man named Curtis Wilkerson got up from a booth at McDonald's, walked into a nearby mall and, within the space of two hours, turned himself into the unluckiest man on Earth. "I was supposed to be waiting there while my girlfriend was at the beauty salon," he says.

So he waited. And waited. After a while, he paged her. "She was like, 'I need another hour,'" he says. "So I was like, 'Baby, I'm going to the mall.'"

Having grown up with no father and a mother hooked on barbiturates, Wilkerson, who says he still boasts a Reggie Miller jumper, began to spend more time on the streets. After his mother died when he was 16, he fell in with a bad crowd, and in 1981 he served as a lookout in a series of robberies. He was quickly caught and sentenced to six years in prison. After he got out, he found work as a forklift operator, and distanced himself from his old life.

But that day in the mall, something came over him. He wandered from store to store, bought a few things, still shaking his head about his girlfriend's hair appointment. After a while, he drifted into a department store called Mervyn's. Your typical chain store, full of mannequins and dress racks; they're out of business today. Suddenly, a pair of socks caught his eye. He grabbed them and slipped them into a shopping bag.

What kind of socks were they, that they were worth taking the risk?

"They were million-dollar socks with gold on 'em," he says now, laughing almost uncontrollably, as he tells the story 18 years later, from a telephone in a correctional facility in Soledad, California.

Really, they were that special?

"No, they were ordinary white socks," he says, not knowing whether to laugh or cry. "Didn't even have any stripes."

Wilkerson never made it out of the store. At the exit, he was, shall we say, over­enthusiastically apprehended by two security officers. They took him to the store security office, where the guards started to argue with each other over whether or not to call the police. One guard wanted to let him pay for the socks and go, but the other guard was more of a hardass and called the cops, having no idea he was about to write himself a part in one of the most absurd scripts to ever hit Southern California.

Thanks to a brand-new, get-tough-on-crime state law, Wilkerson would soon be sentenced to life in prison for stealing a pair of plain white tube socks worth $2.50.

"No, sir, I was not expecting that one," he says now, laughing darkly. Because Wilkerson had two prior convictions, both dating back to 1981, the shoplifting charge counted as a third strike against him. He was sentenced to 25 years to life, meaning that his first chance for a parole hearing would be in 25 years.

And given that around 80 percent of parole applications are rejected by parole boards, and governors override parole boards in about 50 percent of the instances where parole is granted, it was a near certainty that Wilkerson would never see the outside of a prison again.

The state also fined him $2,500 - restitution for the stolen socks. He works that off by putting in four to five hours a day in the prison cafeteria, for which he gets paid $20 a month, of which the state takes $11. At this rate, he will be in his nineties before he's paid the state off for that one pair of socks.

As for the big question - does he ever wish he could go back in time and wait it out in that McDonald's for another hour, instead of 18 years in the California prison system? - Wilkerson, who has learned to laugh, laughs again.

"Man," he says, "I think about that every single day."

Wilkerson is unlucky, but he's hardly alone. Despite the passage in late 2012 of a new state ballot initiative that prevents California from ever again giving out life sentences to anyone whose "third strike" is not a serious crime, thousands of people - the overwhelming majority of them poor and nonwhite - remain imprisoned for a variety of offenses so absurd that any list of the unluckiest offenders reads like a macabre joke, a surrealistic comedy routine.

Have you heard the one about the guy who got life for stealing a slice of pizza? Or the guy who went away forever for lifting a pair of baby shoes? Or the one who got 50 to life for helping himself to five children's videotapes from Kmart? How about the guy who got life for possessing 0.14 grams of meth? That last offender was a criminal mastermind by Three Strikes standards, as many others have been sentenced to life for holding even smaller amounts of drugs, including one poor sap who got the max for 0.09 grams of black-tar heroin.

This Frankenstein's monster of a mandatory-sentencing system isn't just some localized bureaucratic accident, but the legacy of a series of complex political choices we all made as voters decades ago. California's Three Strikes law has its origins in a terrible event from October 1993, when, in a case that outraged the entire country, a violent felon named Richard Allen Davis kidnapped and murdered an adolescent girl named Polly Klaas. Californians were determined to never again let a repeat offender get the chance to commit such a brutal crime, and so a year later, with the Klaas case still fresh in public memory, the state's citizens passed Proposition 184 - the Three Strikes law - with an overwhelming 72 percent of the vote. Under the ballot initiative, anyone who had committed two serious felonies would effectively be sentenced to jail for life upon being convicted of a third crime.

The overwhelming support for the measure touched off a nationwide get-tough-on-crime movement, embraced especially by third-way-style Democrats, who seized upon the policy idea as a powerful weapon in their efforts to throw off their party's bleeding-heart image and recapture the political center. Having seen their wonk-geekish 1988 presidential candidate, Michael Dukakis, expertly exploded by the infamous Willie Horton ad cooked up by Republican strategist Lee Atwater - an ad that convinced voters that the Democrats were the party of scary-looking black rapists on furlough - Democrats had spent years searching for a way to send Middle America a different message.

Three Strikes was a perfect way to convey that new message. The master triangulator himself, Bill Clinton, stumped for a national Three Strikes law in his 1994 State of the Union address. When a federal version passed a year later, Clinton took special care to give squeamish wuss-bunny liberals a celebratory kick in the ear, using the same "Either you are with us, or you are with the terrorists" rhetorical technique George W. Bush would make famous a few years later. "Narrow-interest groups on the left and the right didn't want the bill to pass," Clinton beamed, "and you can be sure the criminals didn't either."

A national craze was born. By the late Nineties, 24 states and the federal government had some kind of Three Strikes law. Not all are as harsh as the California law, but they all embrace the basic principle of throw-away-the-key mandatory sentencing for the incorrigible recidivist.

Once California's Three Strikes law went into effect at midnight on March 8th, 1994, it would take just nine hours for it to claim its first hapless victim, a homeless schizophrenic named Lester Wallace with two nonviolent burglaries on his sheet, who attempted to steal a car radio near the University of Southern California campus.

Wallace was such an incompetent thief that he was still sitting in the passenger seat of the car by the time police arrived. He went to court and got 25 years to life. In prison, Wallace immediately became a target. He was sexually and physically attacked numerous times - there's an incident in his file involving an inmate who told him, "Motherfucker, I'll kill you if you don't let me go up in you." He was switched to protective custody, and over the years he has suffered from seizures and developed severe back problems (forcing him to walk with a cane) and end-stage renal disease (leading to dialysis treatments three times a week). And even months after California voters chose to reform the law, the state still won't agree to release him. "He's a guy who's literally dying," says Michael Romano, director of Stanford's Three Strikes program and a key figure in the effort to reform the law, "and he's still inside."

Wallace's conviction set off a cascade of preposterous outsize sentences of nonviolent petty criminals. In many of these cases, the punishments were not just cruel and disproportionate, but ridiculously so. Oftentimes, the absurdity would end up being compounded by the fact that there would be another case just like it, or five just like it, or 10 just like it. They began to blend together, and if you could keep track of them at all, it was only in shorthand.

Lester Wallace became the schizophrenic-on-dialysis-who-stole-a-car-radio­ case, not to be confused with Gary Ewing, the blind-in-one-eye AIDS patient, who died in prison last summer while serving 25 to life for the limping-out-of-a-sporting-­goods-store-with-three-golf-clubs-stuffed-down- his-pant-leg case.

In that one, the Supreme Court decided life for shoplifting wasn't cruel and unusual punishment, with Justice Sandra Day O'Connor defending the sentence as a "rational judgment, entitled to deference." She added, with a straight face, that the Supreme Court does "not sit as a 'superlegislature' to second-guess" the states, despite the fact that that's precisely what the Supreme Court has been doing for almost 250 years.

There are at least two life-for-stealing­pizza cases. The most famous is Jerry Dewayne Williams, who got 25 to life after stealing a slice from a bunch of kids near Redondo Beach but was released after a paltry five years because of public furor. Still imprisoned, however, is one Shane Taylor, whose first two strikes came from a pair of nobody's-home residential burglaries committed in a single two-week stretch in 1988. In both of these crimes, the only thing taken was a checkbook from one of the houses (in the other residence, nothing was missing, but Taylor's fingerprint was found). With that checkbook, Taylor did exactly one thing: He bought a pizza with a forged check.

Eight years later, Taylor was standing outside his car, drinking beer and listening to tunes with his brother-in-law and a friend at a vista point in the little town of Porterville, near Sequoia National Forest, when a police car drove up. Officers investigated because they said they thought Taylor and his pals looked underage. They said they flashed a light on his front seat and spotted a baggie protruding from Taylor's wallet. They grabbed the bag and claimed they found 0.14 grams of meth - the equivalent of a tenth of a sugar packet.

Taylor went on to become one of the rare Three Strikes defendants to remain free on bail, even after his conviction. A month later, at his sentencing hearing, presiding Judge Howard Broadman was stunned to see Taylor voluntarily show up to be sent away for life over a few grains of meth. "I never expected to see you again, frankly," he said. "I thought a lot about you. And I said, 'Jeez, if I were him, I'd do research and find out what country didn't have extradition laws, because I don't think I'd have showed back up.'"

Broadman had no choice but to impose a 25-years-to-life sentence, but he made an unusual move to extend Taylor's bail, pending appeal. For the next two years, Taylor worked and supported his family. Taylor lost his appeal, and surrendered himself to begin serving his sentence in 1998.

More than a decade later, Broadman had an attack of conscience and called Romano at Stanford. "I'm a conservative, tough-on-crime kind of guy," he later explained, but "Shane Taylor was a mistake." Broadman wrote a declaration on behalf of Taylor, supporting his petition for release. But Taylor is still in jail, three full years after the judge had his come-to-Jesus moment. When I spoke to Taylor by phone from Soledad correctional facility, the dominant emotion in his voice was sheer amazement. "It's baffling to me that I'm still in here," he says. "Even the judge says he's done me wrong."

As for why he did show up in court all those years ago, he says it's simple: "I'm not the type to run out on my family," he says. "And honestly? I never thought I'd get 25 years."

Three Strikes turned out to be not only an abject failure but also a terrible embarrassment to the state of California. Politics and the law coincided to create a yin-yang cycle of endless, expensive stupidity: District attorneys were terrified of the political consequences of not seeking the max for every possible third strike (even when the cases were "wobblers," what lawyers call a crime that could be charged as either a misdemeanor or a felony, depending on the circumstances, like petty theft), while judges were legally bound to impose maximum sentences whether they agreed with them or not.

Things got so bad so fast in California's prisons, in fact, that the Supreme Court was ultimately forced to declare the state in violation of the Eighth Amendment against cruel and unusual punishment, with Justice Anthony Kennedy citing the use of "telephone-booth-size cages without toilets" as one of the reasons he was ordering the state to slash its 140,000-plus prison population by more than 30,000 inmates. That decision came in 2011; a lower court had previously noted that it was an "uncontested fact" that a prisoner in California died once every six or seven days due to "constitutional deficiencies."

Where some saw Three Strikes as a moral outrage, others seized on the financial burdens. Conceived as a way to keep child molesters in jail for life, Three Strikes more often became the world's most expensive and pointlessly repressive homeless-care program. It costs the state about $50,000 per year to care for every prisoner, even more when the inmate is physically or mentally disabled - and some 40 percent of three-strikers are either mentally retarded or mentally ill. "Homeless guys on drugs, that was your typical third-striker," says Romano. "And not that the money is the issue, but you could send hundreds of deserving people to college for the amount of money we were spending."

The typical third-striker wasn't just likely to be homeless and/or mentally ill - he was also very likely to be black. In California, blacks make up seven percent of the population, 28 percent of the prison population and 45 percent of the three-strikers.

Like wars, forest fires and bad marriages, really stupid laws are much easier to begin than they are to end. As the years passed and word of great masses of nonviolent inmates serving insanely disproportionate terms began to spread in the legal community, it became clear that any attempt to repair the damage done by Three Strikes would be a painstaking, ungainly process at best. The fear of being tabbed "soft on crime" left politicians and prosecutors everywhere reluctant to lift their foot off the gas pedal for even a moment, and before long the Three Strikes punishment machine evolved into something that hurtled forward at light speed, but moved backward only with great effort, fractions of a millimeter at a time.

The first break in the struggle against the law came in 2000, when Los Angeles County District Attorney Gil Garcetti, a hardcore Three Strikes advocate (you may remember him as the blow-dried shock-white head of hair who quarterbacked the O.J. Simpson case into one of the most embarrassing losses ever suffered by an American prosecutor's office), lost a re-election bid to his former deputy, Steve Cooley, who campaigned against Garcetti's embrace of the Three Strikes law. A month later, Cooley signed a special order indicating that his office - the largest prosecutor's office in America - would no longer seek maximum sentences for minor offenders. Cooley's unofficial reform would later provide the framework for the Proposition 36 ballot initiative that changed the law.

Around this same time, Romano, a Stanford Law grad who was clerking for a federal judge in Seattle, came across a pair of California cases that disturbed him greatly. One involved a Mexican immigrant sent to prison for life for taking the written portion of a DMV exam for a cousin who didn't speak English. In the other, a man named Willie Joseph received a life sentence after helping an undercover policeman set up a $5 crack deal. "That case stuck with me," says the bespectacled, quick-witted Romano. "Willie didn't hurt anybody in those offenses."

Romano eventually left his clerking job and returned to Stanford Law, with the idea of doing something about Three Strikes. There, he met up with professor David Mills, senior lecturer at the school, who was in the process of founding Stanford's renowned clinical-education program, in which law students do active work in multiple disciplines - everything from Supreme Court litigation to prosecuting criminal cases. Mills is a man of big plans and big ideas, a sort of entrepreneurial intellectual who not only co-chairs the NAACP legal-defense­ fund but has also built several successful private businesses in the financial sector. Like Romano, Mills had hated Three Strikes from the start. But he also knew that, in the age of mass media and the sound bite, fixing the law would be a heavy lift. "It's very easy to say, 'Three strikes and you're out,'" he says. "It's a lot harder to say, 'Well, wait a minute - do you mean three strikes, or do you mean three serious strikes? And what do you mean by "serious"?'"

Mills, Romano and Stanford decided to put together a Three Strikes program as part of the university's clinical curriculum, the idea being that the school would represent inmates serving Three Strikes sentences and try to reverse or at least scale some of them back. Initially, the school saw this mainly as a teaching opportunity for students, but as Romano learned about what Cooley was up to in L.A., he saw an opportunity for something bigger.

Cooley, in 2005, had ordered a review of Three Strikes cases - statewide, nearly 40 percent of them originated in L.A. County - and his staff came up with a list of some 60 names of inmates who had likely been oversentenced.

Perhaps, Romano thought, Cooley's office would work with Stanford to help fix some of those cases. He reached out to his office and the two groups immediately found common ground. There was even discussion at one point about Stanford working within the district attorney's office to reverse old cases, but that was ultimately discarded in order to preserve the traditional adversarial legal structure - which made sense because, among other things, Cooley didn't agree with Stanford about every single nonviolent inmate. Ultimately, the DA agreed that if the Stanford group challenged some of the more absurd Three Strikes cases, his office, on a select basis, might not oppose their efforts.

In the program's initial stages, the Stanford team operated by filing habeas-corpus motions, asking courts to rule on whether or not this or that prisoner had been unlawfully detained. One of the first cases they took up involved a homeless man from Long Beach named Norman Williams, who had been on the list of 60 potentially excessive sentences uncovered in Cooley's 2005 review.

Williams had an IQ of 71, had been placed in classes for the "educable mentally retarded" as a child, had suffered horrific physical and sexual abuse (including being forced into prostitution as a boy to "pay for [his] mother's wine"), and had been homeless and addicted to crack most of his adult life. He'd never committed a violent crime, and his third strike was stealing road flares and a floor jack from a tow truck. Police caught him when they spotted him wheeling a baby buggy full of stuff near the crime scene.

Williams was sent to California's notorious Folsom State Prison ("You don't want to go visit" is his description), where he learned to mind his own business, abide by the rules (no sitting with whites or Mexicans at meals) and pass the years in a nine-by-six cell. If Curtis Wilkerson is the unluckiest man on Earth, Norman Williams might have been the loneliest. In the 10 years he spent in prison, Williams never had a single visitor until the Stanford people­ came to see him about his case. He describes the first time he saw the Folsom visiting room the way a tourist might describe a first visit to the Sistine Chapel or the Taj Mahal.

"I had never been in there before," he says now. "I saw all them vending machines. . . . I was like, 'Wow, this is amazing.'"

Cooley's office didn't oppose Stanford's motion to reconsider Williams' sentence, and he was freed in 2008. (He now lives in Palo Alto and works as a manager of a street-cleaning crew.)

Inch by inch, bit by bit, the courts slowly began to release more prisoners like Williams. Often, the Stanford lawyers would seek to have sentences reduced or reconsidered based on what some might term legal technicalities, with ineffective assistance of counsel being a common argument. But in a broader sense, the Stanford team was relying upon an innovative new legal argument they themselves invented.

"The hypertechnical legal term," says Romano, "is the 'You've gotta be kidding me' motion." As in, 25 years to life for stealing a pair of socks? You've gotta be kidding me. Life for stealing baby shoes? You've gotta be kidding me.

It didn't happen all that often, but Cooley occasionally agreed where Garcetti had not. This was interesting for one conspicuous reason. "Garcetti was a Democrat," says Mills. "And Cooley was a Republican. It's not what you'd expect, but with Three Strikes, everything turns out to be backward."

Mills and Romano would learn this lesson in a big way when they decided to aim higher than just freeing individual prisoners one at a time. From the very beginning, there had always been significant opposition - from members of both parties - to the dumber aspects of the Three Strikes law. As far back as 1994, when the original ballot initiative was first being planned, everyone from Gov. Pete Wilson to Los Angeles County Sheriff Sherman Block to the California District Attorneys Association supported versions of the law that required the third strike to be a violent or serious crime.

But in the end, many California pols caved to public pressure and supported the more brutal version of the law rather than risk being labeled "soft on crime" - an attitude famously symbolized by the then-California­ Assembly speaker, the well-known liberal Willie Brown, who in early 1994 gave up his opposition to Three Strikes: "I got out of the way of this train," he said. "I tell you, I looked like Harrison Ford in The Fugitive. I got out of the way because I'm a realist."

Ten years later, when a group called Families to Amend California's Three Strikes, or FACTS, tried to reform the law, it was the same story. They fought to get an initiative onto the ballot, Proposition 66. Two weeks before Election Day, a Los Angeles Times poll showed the measure winning by a nearly three-to-one margin. But days before the vote, an Orange County billionaire named Henry T. Nicholas donated $1.5 million for a major ad buy. Soliciting the support of then-Gov. Arnold Schwarzenegger and his predecessors - including Democrats Jerry Brown and Gray Davis - the anti-Prop 66 camp ran a series of scare ads, including one called "He Raped Me," which showed a middle-aged white woman claiming the initiative would release her attacker, and Polly Klaas' father promising that "murderers, rapists and some very dangerous child molesters" would be released thanks to the new law. It wasn't Willie Horton - the mug shots shown in the ad were mostly all of scary-looking white criminals - but it was in the rhetorical ballpark.

Jerry Brown flew to Long Beach at Nicholas' request, where he recorded anti-Prop 66 radio ads at a studio belonging to Ryan Shuck, guitarist of the rock group Orgy, while Korn drummer David Silveria looked on. The last-minute bipartisan ad blitz worked, and Prop 66 lost by a slim 53-to-47 margin, a come-from-behind win that one pollster at the time called "unprecedented."

Over the next few years, the Stanford Three Strikes program continued to pull prisoners out of jail one by one, freeing more than two dozen people between 2009 and 2012. But it was a laborious process, each case taking hundreds of hours. "I came to Mike," says Mills of Romano, "and I said, 'We can't do this one-off anymore. We have thousands of people in there.'"

So they came up with the idea of doing another ballot initiative, one that would be laser-focused on correcting what they saw as the most serious defect of the law: requiring that an inmate's third strike be a serious crime. The surprise came when Mills went looking to raise money for what he expected would be a hard-fought campaign.

"I could not get any liberals to give me any money," he says. Mills did find one donor - George Soros - but that was it. In the end, more than 90 percent of the campaign was funded by two people: Soros and Mills himself.

Meanwhile, the campaign was having astonishing success attracting support from conservatives, even hard­ass law-and-order types. The very father of modern zero-tolerance, broken­windows-policing techniques, William Bratton - the former chief of both the New York and Los Angeles police departments who had built his career around the idea that cracking down on minor crimes like subway-fare jumping and vandalism would reduce violent crime overall - backed Prop 36. "The Three Strikes approach," he said, "has political appeal for dealing with repeat offenders." But, he added, "Evidence has shown limited impact on crime levels."

Former Reagan Cabinet member George Shultz was another supporter, as was Reagan's attorney general, the anti-porn crusader Ed Meese. And, shockingly, so was Grover Norquist, the anti-tax mullah to many extreme-right causes. Norquist called California's law "big government at its worst," and added that "nonviolent offenders should be punished - but conservatives should insist the punishments are fair."

The many conservative endorsements, along with numerous endorsements of prominent California law-enforcement figures, went a long way toward helping the proposition finally pass in November.

The people who led the campaign remember their election-night victory with great fondness, but the whole experience was a bit bittersweet, at least for Mills, who seems scarred by the failure of liberals to stand up for the Norman Williamses of the world.

"They'd say things like, 'I hear you, but I really care about environmental causes, education for the poor,'" Mills says. "What it came down to, though, is that these people just don't care about the poor people of color who are locked up, and would as soon see them not released."

Romano tends to look more on the bright side and seems more focused on the big picture, which is that the measure passed and thousands of people finally have a chance to get out of jail. But he does have some thoughts about the politics of what happened. "I think some liberals overlearned the Willie Horton lesson," he says. "But I hope what we did is prove that this political third rail is no longer electric."

Prop 36 might have been a great victory, but it didn't mean that all the unjustly imprisoned were immediately freed. In fact, while 156 inmates have been released, 2,844 non­violent three-strikers remain behind bars. Worse, due to a quirk in the methodology by which California is complying with a federal order to reduce its prison population, there are many murderers and rapists getting out of jail more quickly than three-strikers. The state's method of emptying its overcrowded prisons was to give out lots of "good time" to prisoners with long sentences - in other words, accelerate a well-behaved prisoner's march to a parole hearing. But three-strikers cannot get "good time," they only get "straight time" - meaning 25 years is always 25 years. The only way out for them is still through a long, slow court process, one in which the state often fights release with a Frazier-in-Manila refuse­to-lose desperation.

In December 2010, a mentally disabled 53-year-old prisoner named Dale Curtis Gaines received a letter in his cell at the California Medical Facility, a prison for medically needy inmates in Vacaville, California. Meek of character and heavily medicated for years by prison doctors, Gaines had difficulty comprehending even the simplest things, but he had been pretty close to a model prisoner. In his 13 years behind bars, he had four minor infractions on his inmate record, one of which was refusing to give prison doctors a DNA sample. The reason? Gaines was afraid the state was going to clone him.

Gaines had never committed a violent crime. He was homeless and indigent for much of his life, and his third strike had come in 1997, when he was caught in possession of some computers stolen from an American Cancer Society office. Prior to that, he had two petty residential burglaries on his rap sheet. He struck out on the stolen-computers case and got the usual with extra fries, 27 to life.

Anyway, he opened the letter and was surprised to see it was from Ann Gallagher­White, the woman who had prosecuted him 13 years before:

Dear Mr. Gaines, I hope this letter finds you well. You may recognize my name and recall that I tried your case on behalf of the County of Sonoma. I had probably been with the District Attorney's office for about four years at that time. . . . I have always felt that your sentence was harsh, given your crime. Over the years, it has been on my mind as a case I regretted having been assigned to handle. . . .

White, who a decade before had scoffed at the idea that Gaines was at the "lower end of the mental scale in terms of the continuum" and insisted that Gaines was, in fact, "an opportunist of a more sophisticated caliber," went on in the letter to recommend that Gaines get in touch with the Stanford program through his original attorney. She had left the prosecutor's office and was working as a public defender at the time.

Not comprehending the importance of the letter from his old prosecutor, Gaines promptly forgot about the whole thing. When the Stanford lawyers reached out to him a year later on their own initiative, they were stunned to discover the letter from White, and even more surprised to find that White, who had since gone back to work for the prosecutor's office, wouldn't take their calls.

"To look at those documents side by side," says Emily Murphy, a Stanford law student who worked on Gaines' case, "it made us think about what it means for prosecutors to do their jobs and to zealously advocate on behalf of the state."

More than two years after Gaines first received the "I'm sorry" letter from his prosecutor, he was still behind bars. When I met him at the Sonoma County Jail - in a surreal visiting room where prisoners sit in darkness, appearing as silhouettes in small glass-and-concrete cubicles, while visitors in fully lit chambers yell at them through small, waist-high mesh screens - he was so out of it he could barely grasp the most basic questions. It took nearly five minutes for him to explain to his lawyers that he still hadn't had a shower at this new jail (he'd been transferred there for a court hearing) and that the local doctors had changed his meds.

Gaines' Stanford lawyers were a little troubled by the new medication. "Dale, do you know what they gave you?" asked Jessica Spencer, a law student who was now working his case.

Gaines shrugged. All you could see behind the glass were his teeth as he incongruously smiled at the question. "Was it for something physical, or mental?" Spencer asked.

He thought about that. "Something . . . mental," he whispered.

It would later turn out that in order for Gaines' jail doctors to consult with his normal prison doctors, he needed to make a request in writing. The only problem was, he had no paper. This issue had come up before, when Gaines tried to apply for acceptance into a post-release­ program. The only way to get paper was something straight out of Catch-22: He had to make a request - in writing.

Despite all this, the DA seemed to oppose Gaines' release, quoting an old report that said the "subject appears to be an easygoing man of limited natural abilities. However, it would appear that, in reality, he is an extremely sophisticated criminal who preys on charitable institutions."

Nevertheless, the court ignored the prosecutor and ordered Gaines released. Justice was served. It only took 16 years.

This gets to the heart of what went wrong in America in the years following the mandatory-sentencing and Three Strikes crazes. We removed the human element from the justice process and turned our courts into giant unthinking machines for sweeping our problem citizens under a rug.

And it isn't just in California, but all over the country, where there are countless instances of outrageous and brutal mandatory sentences for relatively minor crimes. Often, they're so ridiculous that even the judges imposing them publicly denounce them, like a 1997 Florida case in which a 27-year-old black woman named Stephanie George was given life for holding her boyfriend's cocaine stash. "Your role has basically been as a girlfriend," said Judge Roger Vinson, "so it does not warrant a life sentence." But Vinson had no choice, just like Massachusetts Judge Judd Carhart had no choice when he gave 48-year-old Michaelene Sexton 10 years for selling coke ("Ten years is an awful long time," the judge said. "When I look at this case compared to crimes of violence, I wonder"), or federal Judge James Todd, who gave a Texas pool-hall owner named Mike Mahoney 15 years for buying a gun 14 years after he was convicted for selling meth ("It seems to me, this sentence is just completely out of proportion to the defendant's conduct," said the judge).

Why did all of this happen? Some of this has its roots in a complex political calculation, in which the Democratic Party in the Clinton years made a Faustian bargain, deciding to abandon its old role as a defender of unions and the underprivileged, embrace more Wall Street-friendly deregulatory policies, and compete for the political center by pushing for more street cops, tougher sentences and the end of welfare - the same thing the Republicans were already doing. By the mid-Nineties, neither party was really representing, for lack of a better term, the fucked, struggling poor.

The end result of this political shift was an unprecedented explosion of the American prison population, from just more than a million people behind bars in the early Nineties to 2.2 million today. Less than five percent of the world's people live in the United States, but we are home to about 25 percent of the world's prisoners, a shocking number.

Another result was that instead of dealing with problems like poverty, drug abuse and mental illness, we increasingly just removed them all from view by putting them in jail. It's not an accident that so many of the most ridiculous Three Strikes cases are semicoherent homeless people or people with drug problems who came from broken homes. It wasn't a cost-efficient way of dealing with these issues - in fact, in California at least, it was an insanely, almost criminally expensive burden on taxpayers - but it was effective enough as a way of keeping the uglier schisms of our society hidden from view.

But these cases are resurfacing now, in "Tell-Tale Heart" fashion, to point an accusatory finger at us for the choices we made decades ago. In California, it wasn't just people like Judge Broadman or Ann Gallagher White who had attacks of conscience. The prosecutor in the Shane Taylor case had a similar change of heart. Ross Stores sent a letter supporting the release of a man who was sent away for life for stealing a pair of its baby shoes. There were numerous others. And in a way, the success of Prop 36 was an attempt by the whole state to make right nearly two decades of past wrongs.

The fact that some progress toward scaling back these draconian laws involving the poor and underprivileged is finally being made is coming at a time when there is an emerging controversy over the conspicuous nonpunishment of big bankers, notorious subprime lenders (many of them Californians) and other wealthy offenders is probably not an accident. One of the interesting results of the polling Mills commissioned last summer was that California voters were surprisingly unmoved by the issue of the cost of incarcerating Three Strikes inmates. "But they were intensely interested in the issue of fairness," says Mills. "That's one of the things we found out: People will pay for justice, no matter how much it costs. But it has to be fair."

Obviously, people who commit crimes should be punished. Even people who steal socks and Snow White videos should probably do time if they have priors, especially serious priors. But the punishment has to fit the crime, and the standard has to be the same for everyone. If a homeless crack addict like Norman Williams is going to get time for stealing road flares, they should leave the top bunk in his cell open for the guy who laundered money for the Sinaloa drug cartel at HSBC.

"People get so hung up on the concept of innocence," says Mills. "But it's intellectually uninteresting. What does matter is how we treat the guilty, and that's where we still have work to do." your social media marketing partner


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+98 # angry 2013-03-27 11:18
Let's for a moment look at where the problem really is... at the campaign bribes given by private correctional institutes and prison guard unions, all to cause on-the-take politicians to pass minimum sentencing and three-strikes laws. With a clean political system, where politicians are not getting a piece of the action, these stupid laws would not exist.

But even more so, we'd not have ObamaCare, but instead single-payer. But $125 million in campaign bribes changed hands.
+21 # Joe Bob 2013-03-27 17:29
Money talks, Good Intentions walk.
+18 # mdhome 2013-03-28 08:19
Incredible waste of taxpayers money!!!
+4 # Rita Walpole Ague 2013-03-28 11:55
Yes, angry. Something to consider: let's encourage voters in states on each coast to lead the way with state laws requiring any and all candidates/appo intees for both state office(s) and appointed positions, to be required to verify via state and national tax submissions for the past few years prior to their running/appoint ments, etc. their private and/or corporate holdings, and their personal possessions (anything worth over x $'s). Said disclosures shall be made openly, for public info.. Then, regular reports of all of the above shall be required, in place with auto removal from office/appointm ents and heavy penalties for any and all failures to honestly report all of the above (i.e. hide or loophole any monies/in kind payments or 'gifts' they receive).

In these crooked/broken times, I do believe vast majorities of voters (hard to do election frauding when someone/somethi ng wins with a vast majority) would vote in favor of putting into law these requirements. Then, get these regs. voted into place at the federal level.

Wish I knew if other countries (republics/demo cracies) have such 'let's keep elected/appoint ed govt. officials off the take' regs., how they enforce them, and if they help prevent the 'enslave 'em all', Police State Ain't Great, greed and power addicted takeover by the evil villainaire rulers and their bought off pol. minions that we're now experiencing here in the U.S..
+42 # Regina 2013-03-27 11:35
Some officials need to listen to Gilbert and Sullivan again:
"Make the punishment fit the crime." This would be hilarious if it weren't tragic. Does competence in logic make people unhirable in criminal "justice"?
+68 # jwb110 2013-03-27 11:43
It's Les Miserables all over again. Prison for a hungry man that steals a loaf of bread.
You think those Wall Street will suffer the same sentence? They'll never even see the inside of a Court Room.
+41 # Reductio Ad Absurdum 2013-03-27 16:22
Steal a pizza, go to jail; steal a $billion and get an annual bonus from your bankster corporation.
+5 # RLF 2013-03-29 05:55
And a subsidy from the administration. it Democrat or Republican!
+61 # Erdajean 2013-03-27 11:45
First thing I think of, of course, is how this guy is locked up forever over a pair of socks while the supreme liars and mass murderers Bush, Cheney, Rumsfeld, and a legion of their crooked buddies run free and live high, at taxpayers' expense.

But it is so much more than that. WHAT KIND OF COUNTRY sends people to hell for stealing a piece of pizza? Yeah, England used to hang little kids for stealing bread -- but didn't they maybe learn a little sense, a little mercy?

The worst place on earth is one where some people have money to buy Congress, and other people's children sleep cold at night, and never get enough to eat.

We live in that place. Who can sleep, thinking of starving kids, right in our midst? I can't and it is time to do something about it -- and I don't mean "DONATE! DONATE!"
+7 # BradFromSalem 2013-03-28 06:49
Once a jury finds someone guilty of a crime, then bring the case to a panel of 6th graders. If they agree that the guilty party was an asshole then a prison term is required. Then bring the case to a panel of senior citizens, they will determine the length of the sentence.

It only requires a 12 year old kid to figure out if someone acted like an asshole, it takes a lifetime to recognize when that person acted like a big fucking asshole.
+38 # Don Thomann 2013-03-27 11:49
The United States of Corruption Incorporated!
+16 # fredboy 2013-03-27 11:53
God bless him. And let's boycott Mervyn's forever, the cold, vicious bastards.
+13 # SMoonz 2013-03-27 14:03
Mervyn's went bankrupt years ago.
+36 # Tiffany49 2013-03-27 11:58
This is horrifying!
+59 # MsAnnaNOLA 2013-03-27 11:58
And HSBC gets to pay a fine for laundering millions of dollars of drug money. So if we must have three strikes, why not a 3 strikes for corporations that break the law with impunity. 3 strikes and we break them up and sell off the bits to the highest bidder. They lose their corporate charter for life and the directors and officers are barred from being the directors or officers of another corporation. I bet that would make them change their tune.

Instead we are paying to keep someone incarcerated for life for stealing a $2.50 pair of tube socks.

Welcome to Corporatist America. We are not all created equal. Corporations are now people and they have more rights than people thanks to Citizen's United. We need a constitutional amendment declaring only natural born persons are people.
+36 # tuandon 2013-03-27 12:08
I agree heartily with Angry. Much of the problem is traceable to bribes and corruption. But the public has allowed itself to be lulled into thinking we are "cleaning up the streets," and we are doing no such thing. The mood of the public is punitive and unforgiving, and nobody cares if these poor souls are condemned to life in prison over a pair of socks...Until you point out the costs involved in doing this. Then they get indignant. Trying to educate them is an uphill battle. I belong to the Pennsylvania Prison Society, and we battle this ignorance all the time. Until the public wakes up to the corruption, until the public learns to deal with giving offenders a second chance, we are going to continue spending milions on incarcerating sock thieves.
+19 # Erdajean 2013-03-27 15:36
"...the public has allowed itself to be lulled into thinking we are 'cleaning up the streets' and we are doing no such thing." Thanks, tuandon, for a great truth.

I can't help but wish for a serious inquiry into how many kids now rotting in jail (and enriching some jackass "privatized" prison company) committed their offence while they were HUNGRY.

My guess is that the majority of juvenile "criminals" regularly did not get nearly enough to eat. Whether because of poverty, or parental drug addiction or general sorriness, or whatever, we can guess there were NEVER "three squares" or even one, on that household's daily table.

What a frightful comment on our concept of "Justice" in this country --
+3 # mdhome 2013-03-28 08:25
This is the way for the state to go down the path to bankruptcy.
+33 # Billsy 2013-03-27 12:30
This is what happens when we politicize our criminal justice system. It's now a joke. One has to applaud the zealous tenacious efforts of those in the Stanford Law program and those prosecutors suffering from a guilty conscience, but I remain ashamed of the thoughtless voters who supported california's 3 strikes proposition: it proves without a doubt that too many voters are insufficiently capable of understanding complex problems and too mentally lazy to give them any thought beyond that required to passively watch a series of 30-60 second attack ads.
+37 # vt143 2013-03-27 12:42
...and the sociopaths who stuffed their pockets full of money and precipitated the worst financial crisis in 80 years not only don't get life sentences, they don't even have to go to trial! Moral: If you have lots of money and just give a smidgen to a politician, you can steal all the socks (and everything else) you want!
0 # Cassandra2012 2013-04-08 18:24
And the Enron 'smartest guys in the room' (= thieves) get a slap on the wrist for 6 years while so many were hurt by their amoral skullduggery.
+34 # MJnevetS 2013-03-27 12:43
One of the most important jobs a judge performs in a criminal trial is AFTER a guilty verdict has been rendered. This is when the judge obtains and reviews a pre-sentence investigation report and determines what an APPROPRIATE sentence is for that Defendant; this decision is based upon the crime for which the defendant has been convicted, their past criminal history, and all of the other personal background information which goes into the report. It not only allows the punishment to fit the crime, but to fit the criminal. Removing discretion from judges with mandatory sentencing laws removes justice from the criminal system. As a criminal prosecutor, I recall a case in which I was asked to prosecute a woman in case which involved a threatened assault with a gun (mandatory 3 years for the use of a gun). The problem was, (as was admitted to me by the victims) her involvement was taking the gun from the hands of her boyfriend, who was threatening to shoot the victims and putting it back in the apartment. While technically, she could have been found to be an accomplice to the crime (she hid the weapon), in my estimation, she saved the lives of the two victims. Going against orders from above, (but with approval of my immediate supervisor) I dismissed the charges against her. Mandatory sentencing law are inherently unfair. A judge can always give the maximum sentence to one who deserves it, but should not be forced to do so, to one who does not.
+2 # RLF 2013-03-29 06:00
You mean the judge who slept through trial? Judges aren't saints and they aren't geniuses...and they mostly read the news paper while trials are going on...been there...
+34 # noitall 2013-03-27 12:53
In a country ruled by thieves, one must be a great one. If those socks were worth $250 million, he'd have received his $2.5 million dollar bonus and bought himself a tanker of gasoline to wait for prices to rise. Sorry to say but our country is a laughing stock to the world. The hypocracy of our once (believed to be) great country is deafening. What must the hatred be from those whose families are bombed in the war to "remove a dictator that was making their lives miserable" (spelled o-i-l)? We've got a terrorist manufacturing machine and our Industrial/Mili tary complex stocks are soaring. Life is great for the ruling class in Amerika! and their ilk is climbing aboard. Watch for the TPP.
-41 # James Klimaski 2013-03-27 13:03
What is the fuss about, Wilkerson has gotten free room and board on the taxpayer's dime and California is now free of shoplifters. Oh, except for Lindsay Lohan.
Oh, but I wish they would get rid of that baseball analogy.
+4 # mdhome 2013-03-28 08:33
I am glad you wish to spend your money so foolishly, not every one wants to waste their money in such a stupid way.
+24 # jpap100 2013-03-27 13:08
Even the least impassioned among us should appreciate the cruel absurdity of bankrupting our budgets in order to imprison people for these trivial offenses, where more appropriate dispensation of justice would spare unnecessary human suffering as well as limiting the growth of the prison industrial complex.
-73 # Donna Roberts 2013-03-27 13:08
This guy is a recidivist criminal who GOT CAUGHT stealing a pair of socks. Someone who would steal FOR NO REASON and continues to do so over years and years (how many times did he steal but not get caught?) deserves to go to prison for a long time. Just because others commit bigger crimes and are not punished has absolutely no bearing on this case. Rational voters understood that Three Strikes puts away career criminals who won't stop breaking the law otherwise. Curtis Wilkerson knew that he would be subject to this law, yet because he was tired of waiting for his girlfriend (!) chose his own fate. No sympathy from me.
+24 # angelfish 2013-03-27 13:33
Quoting Donna Roberts:
This guy is a recidivist criminal who GOT CAUGHT stealing a pair of socks. Someone who would steal FOR NO REASON and continues to do so over years and years (how many times did he steal but not get caught?) deserves to go to prison for a long time. Just because others commit bigger crimes and are not punished has absolutely no bearing on this case. Rational voters understood that Three Strikes puts away career criminals who won't stop breaking the law otherwise. Curtis Wilkerson knew that he would be subject to this law, yet because he was tired of waiting for his girlfriend (!) chose his own fate. No sympathy from me.

May YOU be treated with the same kind of compassion some day! Ever hear of "forgiveness"? "Justice"? "Equity"? Nah, didn't think so. You must have been SEVERELY toilet trained or abused in your life to feel so little sympathy/empath y for another Human Being.
+11 # kalpal 2013-03-28 05:31
Donna Roberst is most probably a christian and you know how they hate to forego vicious penalties.
+9 # Phlippinout 2013-03-27 13:47
LOL, You are serious arent you? Sad for you, sad to be you.
+18 # Gordon K 2013-03-27 14:44
Donna, you're paying in taxes your share of the $30,000 it typically costs to incarcerate a person for a year. Multiply that $30K times the thousands of people in jail in every state, and it adds up to billions of dollars, annually. That's a lot of money spent to keep people from stealing more socks, don't you think?
+18 # 666 2013-03-27 14:50
even stupid people deserve:
a) compassion
b) help

is there anything I can do for you?
+11 # kalpal 2013-03-28 05:30
So you think the cost of 25 years incarceration at about $600,000 is well justified?
+8 # RLF 2013-03-29 06:04
Then you pay extra taxes to keep this guy in jail because it costs probably $80k a year for this nonsense. Problem're out there shouting 'don't touch my medicaid' but the money is gong down rabbit holes like this...
+16 # angelfish 2013-03-27 13:28
Dickens was SO right when he said, "The Law is an ASS"!
+9 # kalpal 2013-03-28 05:33
You need merely look at any typical legislature in this country to know that you are insulting asses.
+4 # flippancy 2013-03-28 06:44
Quoting angelfish:
Dickens was SO right when he said, "The Law is an ASS"!

It was Shakespeare who said "The law is A ass."
+4 # angelfish 2013-03-28 15:40
Quoting flippancy:
Quoting angelfish:
Dickens was SO right when he said, "The Law is an ASS"!

It was Shakespeare who said "The law is A ass."

NO, flippancy, it was Charles Dickens in "Oliver Twist". Mr. Bumble is the one who says it in reference to the Law supposing he has any control over his wife. "If the Law supposes THAT, Sir, then the Law is an ASS!" or words to that effect.
+3 # Wolfchen 2013-03-29 09:33
You may also like this one:
An ass between two bales of hay is said to have died of starvation, ... The Speech of Justice (1916). The law, ... Mr. Justice Cardozo ...
+3 # flippancy 2013-03-29 10:30
You're right, I don't know what I was thinking. I think I was thinking of "Next thing we do, let's hang all the lawyers."

+16 # Wolfchen 2013-03-27 13:42
No pity for the Tea Party types who demonstrate neither compassion nor intellect. You know the kind I mean: those who support an assault on science, the middle class, just laws, single payer universal health care...on and on they spread their ignorance over the air-ways like a virus. Ultimately they will not prevail because they've exposed themselves for their moral bankruptcy.
+16 # mainescorpio 2013-03-27 14:30
In the back of my mind, or what's left of it, I knew such horrors were going on.But, absent the voting booth and occasional letters to editors, there was nothing I could do about it. There are so many horrors going on...The greed of Wall St., The surrender of our constitution, the tragedies that come with the loss of wealth,the destruction of our planet, etc. etc.

But I thank Matt for bringing our broken correctional system to the surface once again.
+14 # wiz1952 2013-03-27 14:47
It bogles the mind that in florida on the 3rd misdemeanor the state turns it into a felony, theve've actually put people away for life for stealing a pack of juicey fruit gum.Yet Bush And Cheney and all the bankers on wall street go unpunished. did anybody think the reason these guys steal is because guy's like bush and cheney made sure they remain unemployed by shipping our job's oversea's. granted it's wrong to steal but our members of congress get away with it everyday. people like michelle nutjob bachman see to it that her rich friends get richer and make sure the poor stay poor, meanwhile her husband bilked medicare for a few hundred thousand, if that isn't considered stealing then i don't know what is.
+8 # tabonsell 2013-03-27 15:53
This article raises one of my pet peeves about constitutional law.

The Constitution doesn't outlaw "cruel and unusual punishment"; it outlaws "cruel and unusual punishments".

The "S" at the end makes the prohibition plural, not compound as the author (and virtually everyone else) constantly present it. That means "cruel punishment" is outlawed and "unusual punishment" is outlawed. Besides "cruel and unusual punishment" is not literate. Proper compound style would be "cruel-and-unus ual punishment."

Also at issue is the claim that we are a "Christian nation" and as such must incorporate Christian values in our laws. One Christian value is "an eye for an eye and a tooth for a tooth." That is used to justify horrendous punishments for horrendous crimes.

But it has another meaning, and that is the severity of a punishment should never exceed the severity of the crime. Virtually all three-strikes laws do this very thing.
+6 # Diane_Wilkinson_Trefethen_aka_tref 2013-03-27 17:37
You are not only wrong about "One Christian value is 'an eye for an eye and a tooth for a tooth.'" You've got it ass backwards:

Hammurabi's Law Code, c. 2400 B.C.E.
If a man knock out the teeth of his equal, his teeth shall be knocked out.

Exodus 21:24, kjv
"Eye for eye, tooth for tooth, hand for hand, foot for foot..."

Leviticus 24:20, kjv
"Breach for breach, eye for eye, tooth for tooth..."

Deuteronomy 19:21, kjv
"And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot."

Matthew 5:38-39, kjv
"Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also."
+13 # kalpal 2013-03-28 05:36
The problem with christians is that they pay only lip service to the teachings they claim to inform their actions and lack of ethics or morals.
+10 # Wally2007 2013-03-27 18:46
Just eyeball Hubris to pass judgement on the GREATEST DECEPTION. Where is the real justice????? Great work Matt, they need to be on the RUN.
+13 # ganymede 2013-03-27 22:35
Thank you Mr. Taibbi for another brilliant article. Yes, we will be judged by how we treat the lowliest amongst us - those poor souls who have committed the most minor of crimes, and we will be judged harshly. It is a crying shame. Jesus would weep. Bush, Cheney and the banksters suffer not for their crimes and we incarcerate more people then even the Russians did during Soviet times, and we still execute 100's a year in the most backward states, and the good American people tolerate this shit. Yes, we are an exceptional people. Woe is us.
+9 # Even 2013-03-28 03:55
And with the proliferation of for profit private enterprise prisons this will get much worse.
+8 # kalpal 2013-03-28 05:29
25 years in prison at a cost to the taxpayers of approximately $25,000 a year is about $625,000 as against dismissing the charge of a $2.50 pair of socks. I guess the fiscal conservatives have done the math and they are totally satisfied.

Of course any amount to punish and zero to suport and educate is one of the great long standing mantras of America's right wing. Vengeance is mine sayeth the right wing loonies.
+3 # mdhome 2013-03-28 08:43
Such a waste of money!
+9 # chizables 2013-03-28 11:19
Please tell me this isn't true.

Many commenters here talk about the taxpayer dollars spent and the waste of money.

But - my God! - what about the guys who are rotting away day after day in prison for mere misdemeanors? This is sick and so are some of the reactions here.

All this country seems to care about it their almighty taxpayer dollars. What about these people's LIVES?

The story is not about government waste. It is about human waste. So so sad.
+7 # tbcrawford 2013-03-28 14:28
Moreover, few if any mentioned what tremendous good we could do with these dollars to support the many tragic humans who have probably never known much but abuse. Where are tolerance and compassion; where is our support for those less fortunate? We should hang our heads in shame for our ignorant and self-serving hubris. Bless those, especially the young, who know we can do better and who are trying to so.
+6 # Emily 2013-03-28 19:47
The answer is to create Responsible Citizen policy where a jury is seated to assess criminal charges, removing that privilege from the prosecuting attorney.
+4 # flippancy 2013-03-29 10:33
Quoting Emily:
The answer is to create Responsible Citizen policy where a jury is seated to assess criminal charges, removing that privilege from the prosecuting attorney.

That's what a grand jury is. Perhaps we should require a grand jury in all cases in which the defendant may be sentenced to incarceration and if not sent to a grand jury the defendant may only be fined or sentenced to community service. The fine in these cases should be limited to what the person can afford to pay. Corporations should not be afforded this remedy.
0 # johnatwater2 2013-03-30 21:29
This insane! We have lost our soul; lost our heart; lost our mind! What waste, what horror, what needless suffering, what possibilities lost, what hell, what insanity?

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