McKay was a three striker with multiple convictions and two prison sentences for violent offenses dating back to 1999. His last ten-year stint ended in 2019.
When he was stopped by deputy Cordero, he had already been convicted of his third strike. However, he was free on reduced bail pending sentencing, re-arrested, and again released for what should have been his third and final strike conviction and a 25 to life sentence.
In a statement to the press, grieving Riverside County Sheriff Chad Bianco called out the San Bernardino Judge who released McKay but declined to give her name. We now know she is Superior Court Judge Cara Hutson.
According to the Los Angeles Times “His first strike came in 1999, when he pleaded guilty to assault with a firearm and spent three years in prison. The second came in 2005, when he and a co-defendant attacked a sleeping couple in their apartment, assaulting them and stealing $3,700 from a safe”.
His third and what should have been his final strike “came when he was convicted on Nov. 8, 2021, of false imprisonment, evading a peace officer, criminal threats likely to result in death or great bodily injury, and receiving stolen property. Evidence included zip ties, duct tape, an ax and gang paraphernalia. McKay represented himself at trial, but absconded before his sentencing. There had been a warrant out for his arrest since October.”
At 44, McKay had spent a quarter of his life in prison. It wasn’t enough.
When it was conceived, “Three Strikes” wasn’t based on baseball pitches although the title stuck. It was based on the very real science of human behavior that indicates an adult offender with a consistent and recurring history of violent offenses is too dangerous to be allowed to remain free.
Fed up with record high homicides and violent crimes, the California legislature passed three strikes legislation in 1994 along with a ballot initiative that was overwhelmingly passed by the voters. The original version of Three Strikes allowed for two prior violent “strikable” offenses before a criminal could be convicted and sentenced to 25 years to life for any third felony. And it worked. Both the crime rate and the rate of incarceration declined. This confounded the predictions of the state corrections department as well as the nonpartisan Legislative Analyst’s Office. It did so Three Strikes opponents failed to predict both the effectiveness of deterrence on human behavior as well as incarceration in making the rest of us safer.
But it wasn’t without its critics. Using anecdotal stories of violent offenders sentenced to life sentences for stealing pizzas or blue jeans, reformers at Stanford Law School began to lobby the legislature and voters that the third strike should no longer include non-violent offenses. They succeeded in 2012 by helping to pass Prop. 36.
Thousands of so-called “non-violent” offenders were released and Stanford claims only a 2 percent recidivism or return to prison rate for them. It’s partially true because at the same time they and others supported legislation and ballot initiatives to effectively decriminalize many of the offenses that would return offenders to prison, as well as creating disincentives for the justice system to incarcerate violent offenders.
Under Prop 57, thousands of parolees and probationers have been added to the caseloads of county probation departments. Those departments are funded by the number of individuals on their caseload. This created a disincentive to violate parolees and return them to prison or risk seeing their budgets cut. Chief probation officers may strenuously deny it – but the fact remains that probation violations are down – and not because there are fewer acts being committed that would return a probationer to prison. One need only look at spiraling incidents of thefts and drug overdoses to know this. They are able to disguise this statistic because they alone define what constitutes a new offense or probation violation without independent oversight.
Stanford also fails to take into account the effectiveness of deterrence. Many of those released experienced criminals know that crime victims and voters can very quickly change the criminal justice landscape and are adept at avoiding law enforcement.
Something else happened after 2012. Freed from the threat of long sentences many criminals without the perspective of life in prison have engaged in increasing numbers of violent crimes and homicides.
For California’s peace officers and prosecutors this means a vital tool has been taken away – the ability to use the threat of a three strikes prosecution to disarticulate criminal organizations by encouraging cooperating witnesses to avoid prison and testify against others in these organizations.
For victims it means far worse. More people are dead and injured as a result of these changes. Including, as of December 29, 2022, Sheriff’s Deputy Isaiah Cordero.
Steve Smith is a senior fellow in urban studies at the Pacific Research Institute.
