D’Andre Brooks landed his first strike at 16.
It was 2002, and friends he was with at a San Diego trolley station decided to rob two people. Brooks said he didn’t participate. But according to court records, prosecutors argued that simply by being there, he’d aided in the robbery.
At the time, the offer of probation and a single strike in exchange for a guilty plea seemed like his best option — the teenager just wanted to get out of juvenile hall.
“I took the deal not knowing the consequences that were lying ahead of me,” said Brooks, now 35, in an interview with The Imprint.
More than two dozen states have some form of three strikes, laws that impose harsh penalties for a third serious or violent offense. Most states enacted these laws in the ’90s, with proponents appealing to voters’ fears by offering protection from violent criminals and vowing that longer sentences would reduce recidivism and bring down crime rates.
California is the only state where a 16- or 17-year-old can receive a strike, impacting thousands of young people’s lives. And though juvenile records are sealed at age 18, strikes follow a person into adulthood and can’t be expunged. In California, a second strike doubles prison terms. A third strike can send defendants away for life.
The law here has long been criticized for disproportionately impacting people of color, roping in low-level offenders and causing prison populations to balloon. Critics argue that applying three strikes to teenagers undermines the rehabilitative goals of the juvenile justice system and ignores substantial research on adolescent brain development.
Elsa Chen, a professor of political science at Santa Clara University who has studied California’s three strikes law extensively, described it as focusing on “incapacitation, rather than rehabilitation.”
That conflicts with the distinct goal of the juvenile justice system, Chen and others argue.
“California and other states have a separate juvenile system largely because of the belief that young people are not yet fully capable of making reasoned decisions, and are therefore less culpable when they commit crimes,” she said. “For similar reasons, there’s also a belief that young people are more amenable to rehabilitation.”
Recently, the state-sponsored Committee on Revision of the Penal Code — convened in 2020 to review California’s labyrinthine system of criminal laws — recommended getting rid of three strikes altogether. “The Three Strikes law has been applied inconsistently and disproportionately against people of color, and the crime-prevention effects the law aimed to achieve have not been realized,” the committee reported in December. Authors described the fact that juveniles can receive strikes as one of “the most concerning aspects” of the law.
A year ago, Assemblymember Miguel Santiago (D) introduced Assembly Bill 1127, which proposed to block crimes committed by juvenile offenders from being used to enhance future adult sentences. The bill would have allowed people to petition the courts for resentencing if prior juvenile strikes had been used against them as adults.
Santiago’s legislation easily passed the Assembly’s public safety and appropriations committees last spring, but the author pulled the bill in June before a floor vote. That followed opposition from one influential group — the California District Attorneys Association, which argued that the resentencing provision shouldn’t apply to negotiated settlements and plea deals.
The group of prosecutors also argued that the bill wasn’t needed because under existing law, judges have the discretion to dismiss a prior juvenile strike.
Santiago pulled the bill following the association’s opposition, amid growing concerns that reintroducing cases involving juvenile strikes might overburden state courts backlogged during the pandemic. AB 1127 faced another steep hurdle. Because three strikes was enacted via ballot measure, amending it requires support from two-thirds of the state Legislature.
But Santiago, who calls three strikes one of California’s “leftover, outdated laws,” has vowed to return the bill to the Assembly floor for a vote this month.
“Something so simple, like breaking someone’s cell phone at a young age, can count later on as a strike and land somebody in prison for 25 years,” he said at an April 2021 press conference.
Brooks is the kind of person AB 1127’s authors had in mind — a teen who came from a troubled home and grew up in a tough neighborhood with a heavy police presence. He spent much of his childhood in foster care and group homes; being in a gang was simply a necessary part of growing up.
“I didn’t know anything else besides gangs and going back and forth to juvenile hall,” he said.
In 2003, less than a year after he received his first strike, when Brooks was 17 and still on probation, he met up with some friends who’d just been in a fight with a rival gang member. Brooks said he didn’t participate in that fight and wasn’t there when it happened — but he was swept up by police nonetheless.
He ultimately accepted a plea deal for 11 years in prison and a second strike. In an appeal filed shortly after his sentencing, he argued that this public defender failed to investigate the facts of his case. But the appeal was denied.
Brooks spent the first year of his sentence in the youthful offender program at the California Correctional Institution in Tehachapi. When he turned 18, he was transferred to the prison’s adult unit.
“It sticks with you like it happened yesterday,” he said.
Now, since his release from prison, Brooks has earned a bachelor’s degree in criminal justice and is currently at San Diego State University working on a master’s degree in public administration. He sits on the city of San Diego’s Commission on Gang Prevention and Intervention. He mentors at-risk youth. But none of it changes his record.
“You’re still a felon,” he said, “a bona fide, certified felon.”
In November 2020, more than a year before AB 1127 was introduced, George Gascón was elected district attorney of Los Angeles County as a progressive vowing dramatic justice reforms — and made his own attempt to end juvenile strikes. One of his earliest policy directives that year instructed deputy district attorneys not to file strikes against 16- and 17-year-olds, except in cases involving forcible rape and murder.
“Our prosecutorial approach should be biased towards keeping youth out of the juvenile justice system,” the directive said, “and when they must become involved, our system must employ the ‘lightest touch’ necessary in order to provide public safety.”
But Gascón’s efforts to scale back the use of juvenile strikes — along with other attempts to upend longstanding patterns of criminal prosecution — came under swift attack, including from DAs in his own office. He has since dialed back his original directive, exempting attempted murder, “extraordinary circumstances” such as serious physical injury, and cases “where the conduct exhibited an intention to cause cruel or extreme pain and suffering.”
The Association of Deputy District Attorneys in Los Angeles County — who have sparred with Gascón in court and in the press about his new justice reforms — didn’t take a position on AB 1127 when it was introduced. And a spokesperson said the association doesn’t have a position on whether it should be returned for a vote.
But Deputy DA Michael Mallano, a former head of the juvenile unit in Compton who helped craft AB 1127, said that juvenile strikes are “duplicitous and unfair.”
“On one hand, we tell them, ‘Hey these are not priors; we’re trying to rehabilitate you,’” Mallano said of juvenile offenders. “But we go ahead and not only treat strikes as priors in a criminal court, we use them to enhance their sentences as adults.”
Mallano also points to the different approaches in juvenile and adult courts: Juveniles, for instance, aren’t entitled to a jury trial where they could challenge the strike, raising constitutional issues.
There are also issues of fairness and culpability.
“The science is overwhelming in showing that minors, 16- and 17-year-olds, are not fully developed adults. Many of the decisions that they make are based on impulse problems,” said Dr. Rahn Minagawa, a San Diego-based forensic and clinical psychologist and expert in adolescent brain development, at a press conference last year. “They are influenced much more readily by the peers around them and are very much impacted by the environment in which they are growing up.”
Impacts can be long-lasting. In “Juvenile Strikes as Cruel and Unusual Punishment,” a 2012 journal article published in the University of San Francisco Law Review, legal scholar Beth Caldwell described being “haunted” by the young people she’d represented who had received strikes. They included Jesse who, like D’Andre Brooks, accepted a strike so he could be released from juvenile hall. He’d been charged with robbery for grabbing a man’s cell phone and threatening to hit him. Months later, Jesse received a second strike for writing gang-related graffiti.
Caldwell described California’s three strikes law as “recognized both nationally and internationally as a draconian measure that is out of line with common standards of decency,” regularly meting out unjust sentences for youthful misconduct.
“Thousands of youth are accused of strike offenses in juvenile court each year and are then confronted with a complicated web of decisions that will impact the rest of their lives,” she wrote. “Three strikes is not effective in reducing crime, and it is particularly unjust as applied to youth.”
If Santiago’s legislation returns for a vote this session and becomes law, it’s unclear how many people might one day be able to seek resentencing based on a previous juvenile strike. Information requests to state officials from multiple interested parties have so far gone unanswered. But Miguel Garcia, advocacy coordinator for the grassroots Anti-Recidivism Coalition, which championed the bill, said that anyone who was sent at age 16 or 17 to a state-run juvenile detention facility in the roughly 25 years since the law was enacted likely has a strike on their record.
Garcia is one of them. He was 16 when he brought a knife to school and was charged with premeditated attempted murder. He was a troubled kid, he said, who had problems with authority. He’s now 28. He sits on the Board of State and Community Corrections and is involved in other criminal justice reform advisory groups. He has a bachelor’s degree, a baby daughter and is a new homeowner — he’s living the American dream. But to get his record cleared, he’d need a pardon from the governor.
“That’s like winning the lottery,” Garcia said. “That’s where we’re at today.”