Under Texas' harsh sentencing laws, people convicted of relatively minor crimes — such as stealing a sandwich — can get life in prison.
The prosecution’s case was simple: Around 2 p.m. on January 12, 2010, Larry Dayries ordered a tuna on sourdough from the prepared foods counter at Whole Foods in the Gateway Shopping Center in Austin. Conspicuous in a white suit and matching hat, Dayries ate his sandwich and ordered another. As a security guard named Lance Johnson watched, Dayries walked out of the store with the sandwich without paying. When Johnson tried to block Dayries’ path, Johnson said, Dayries pulled a 3-inch knife from his pocket and lunged. Then Dayries got in his car and drove off.
The case would have barely made local news if it hadn’t been for what followed.
A month later, Dayries was arrested in downtown Austin after police, working a drug sting, ran his name through their database. During his trial later that year, he was sentenced to 70 years in prison by a Travis County jury for aggravated robbery with a deadly weapon. Prosecutors asked for such a harsh sentence because of his prior convictions for burglary and theft, and perhaps because he had refused a plea deal. Unless he’s paroled (he becomes eligible in 2040), Dayries won’t be released from prison until 2080. By then, he’ll be 111 or dead.
“It’s just me in here, writing trillions of letters to people trying to get out of here, but no one responds,” says Dayries, who insists he never pulled a knife on Johnson. “There were no eyewitnesses, no physical evidence — nothing but this guy saying, ‘You did this at rush hour at one of the most popular shopping centers in Austin, Texas.’”
After Dayries’ sentencing, Johnson posted on his Facebook page: “Don’t mess with Whole Foods … 70 years is what you get when you fuck with us.”
Dayries was sentenced under Texas’ habitual offender statute, otherwise known as the three-strikes law, which raises the minimum sentence that can be imposed if the offender has past felony convictions.
Until recently, California was the poster child for the kind of extreme sentencing that led to Dayries’ 70-year term. Under California’s notorious three-strikes law, introduced in the mid-’90s amid a violent crime epidemic, a defendant convicted of a felony who had two or more prior felonies would automatically receive 25 years to life.
The law helped drive a prison-building spree in California, sweeping up all sorts of nonviolent low-level offenders in its unyielding maw. By 1997, 24 other states and the federal government followed suit, as politicians — both Democrats and Republicans — saw the political value in tough-on-crime laws. In his 1994 State of the Union address, Bill Clinton spoke passionately about his support for a federal three-strikes law, jabbing his finger into the dais for effect. He received a standing ovation and Congress soon passed his omnibus anti-crime bill. Under pressure from Black Lives Matter activists, Hillary and Bill Clinton have acknowledged this year that the legislation was flawed and harmful.
Only in the last few years has the draconian logic of three strikes started to unravel. Criminal justice reformers, including many conservatives, have come to see three strikes as ineffective and costly; evidence of its impact on crime rates is scant. Perhaps the punishment of wrongdoing shouldn’t be based on a rule in baseball.
In 2012, California voters passed Proposition 36, which softened three strikes. The ballot initiative allowed nonviolent drug offenders to qualify for probation rather than prison and it revised the law so life sentences could only be imposed when the new felony conviction was “serious or violent.”Though California is synonymous with three strikes, Texas has had some form of repeat offender law on its books since 1856. Until 1973, when lawmakers made minor revisions as part of an overhaul of the Texas Penal Code, the law read simply, “Any person who shall have been three times convicted of a felony, less than capital, shall, on such third conviction, be imprisoned to hard labor for life in the penitentiary.”
Two decades before California and other states caught three-strikes fever, the Texas version was making headlines for its brutality.
In 1973, a Texas judge sentenced a man named William Rummel to life under the three-strikes law. All three of Rummel’s convictions were for theft — the first for using a stolen credit card; the second for forging a rent check; and the third for cashing a check without completing work he carried out as an air conditioning repairman. The total Rummel netted from the thefts: $230.11.
“It doesn’t matter whether the crimes are violent or not,” a Texas assistant attorney general wrote at the time. “It’s the law and it should be enforced.”
In 1980 the U.S. Supreme Court upheld Rummel’s sentence, ruling it did not constitute cruel or unusual punishment.
Texas later amended its three-strikes law, allowing juries to instead sentence some offenders to 25 to 99 years — still with the option of sending someone away for life, but now with the possibility of parole.
Although the Legislature had removed the literal “throw away the key” provision, the state’s three-strikes law remained largely intact.
By 1995, Texas’ incarceration rate was the highest in the nation — at 653 sentenced inmates per 100,000 residents — and one of the highest in the world.
In the past decade there has been a move to reform sentencing nationwide in order to reduce prison populations. Maryland, Oklahoma and North Dakota, for example, did away with mandatory minimum sentences for certain offenses. Elsewhere, certain felonies were reclassified as misdemeanors. And in Texas, among other reforms, lawmakers changed the policy that automatically sent certain offenders to prison for violating the terms of their parole and reduced penalties for crimes such as car theft.
But instances of nonviolent criminals receiving extraordinarily long prison terms are still not uncommon — macabre reminders of Texas’ sometimes absurdly harsh sense of law and order.
In a 2013 case that drew national attention, Texas’ habitual offender law led to a 50-year sentence for a Waco man who stole a $35 rack of ribs. “All Willie Smith Ward wanted was his baby-back ribs, but it cost him 50 years in prison,” wrote the Waco Tribune-Herald. Ward had convictions for both misdemeanors and felonies, including attempted robbery, aggravated assault, leaving the scene of an accident and possession of cocaine.
And last year Julie Witt, a Fort Worth woman, received a 50-year sentence after pleading guilty to stealing $50,000 from her employer. Witt had four prior felony theft convictions and a conviction for felony money laundering.
Habitual offender laws are part of a panoply of sentencing “enhancements” that enable judges and juries in Texas to impose lengthier prison time.
“If you commit robbery and happen to be a gang member [you get a] ramped-up charge because of that gang affiliation,” says Matt Simpson, a policy strategist for the ACLU of Texas. “If you commit a drug crime within 1,000 feet of school, it can go from basic robbery to a third-degree felony. It doesn’t make sense to put someone away for longer on that basis alone.”At the same time, judges and juries have enormous latitude when it comes to using those sentencing enhancements. As a result, punishments for the same crime can vary wildly from jury to jury, courtroom to courtroom, and community to community. “In cases where a case does go to trial, the jury can choose that sentence, and they can reflect the community’s perspective,” says Michele Deitch, a senior lecturer at the Lyndon B. Johnson School of Public Affairs at the University of Texas.
Perhaps Dayries’ biggest mistake was allowing a jury to decide his fate. Insisting that he was innocent, he rejected a plea deal from prosecutors that might have kept him in prison for fewer than two years.
The Ellis Unit is set among pine trees in rural Walker County, 12 miles north of Huntsville. The prison housed the state’s death row wing until it was moved to Livingston, just north of Houston. As I walk through the body scanner on my way to see Dayries in May, a corrections officer asks what crime he’s committed. “Stealing a sandwich?” he repeats incredulously when I tell him. His colleague stops what he’s doing and looks up.
A middle-aged man with a shaved head and dressed in prison whites, Dayries is sitting behind a mesh screen covered in plastic. One of six children, he was born in Spain, where his father was stationed in the U.S. Air Force. The family moved back to the United States when Dayries was 11. After that, he was in and out of mental health hospitals and reform schools. “Me and my mother didn’t get along, and I think my father tried everything he could but it wasn’t working,” he says.
Dayries says his childhood was marked by verbal and physical abuse, and that an adult family member taught him to steal. “I was angry as a kid,” he says. “I think I was disturbed by all the abuse. The treatment centers were always great because there were lots of other kids. Dad’s military insurance paid for it and they spared no expense, so I was pampered. They provided a great education, took great care of me, loved me.”
As an adult, he got into drugs, supporting his habit through theft. The day he took the sandwich, he was on his way to pick up a pile of stolen laptops.
He says he intended to pay for the second sandwich but was distracted by a phone call and stepped outside to take it. Dayries insists he never lunged at Johnson with a knife. Instead, he says, as he stepped into his car and pulled out the contents of his jacket pocket, a small Gerber knife attached to a keychain fell out.
“The blade never came out,” Dayries says. “So as [Johnson] steps back, he picks up the sandwich and throws it in the trash can and I leave, and I never think anything about it again.” The Observer was unable to reach Johnson, and Whole Foods said he no longer works for the company.
A month later, Dayries was arrested by police near a club on 12th and Chicon. “For the life of me I could not think what they were talking about,” he says. “And then when [my attorney] said Whole Foods … that’s when I started putting the pieces together.”
Dayries thought nothing would come from the prosecution, since there was no physical evidence, no knife or eyewitnesses. The jury was shown a picture of what Johnson said was a similar knife, with a “curved, serrated, 3-inch blade and a 3-inch metal handle.” Dayries claimed unsuccessfully at appeal that it looked nothing like his knife.Dayries says his attorney should have asked to have the court hear the 911 call Johnson claimed to have placed. “He [Johnson] claims he was on the phone to the dispatcher and at the same time I was attacking him with the knife,” Dayries says. The 911 tape, Dayries says, would have proved the attack never happened. Dayries’ attorney, Bill Browning, refused to discuss the case with the Observer.
A spokesperson for the Austin Police Department told the Observer that the tape from that day no longer exists, because 911 tapes, unless they’re submitted as evidence in a trial, are destroyed a year after they’re made.
In court, prosecutor Christopher Baugh said Dayries was a habitual felon with numerous theft convictions as well as prison time for offenses in Texas and Louisiana. Dayries’ record shows a burglary conviction in 1988, a conviction for armed robbery in 1999, and nine theft convictions between 2003 and 2009.
At his appeal, Dayries argued that the evidence — Johnson’s word against his — should not have been enough for a guilty verdict. “I’m on a wing with a serial child molester who is serving 30 years,” he says. “And here I am serving 70 with no physical evidence.”
Mercy is a quality in short supply in American criminal justice, but sometimes it comes unexpectedly and swiftly.
In 1999, a federal judge in Dallas gave Sharanda Jones life in prison without parole for a single offense of conspiracy to distribute 66 pounds of crack cocaine. This despite the fact no drugs were ever found and Jones was a first-time, nonviolent offender.
“During my trial I had no idea I was looking at a life sentence,” Jones tells me over the phone. “I was numb that day. I remember not talking, trying to understand the sentence. And it was only once I had got behind the wire of federal prison that I realized it was real and that there were a lot of people like me. … It was amazing and shocking to me, seeing so many women in federal prison. My daughter was 8 at the time and I had no way of explaining to her what was happening to me until she was 13.”
Jones was arrested in 1997 after Terrell police apprehended more than 100 people across the city for various drug offenses. Among them was a couple, Julie Franklin and her husband, Keith Jackson, who agreed to plead guilty in return for a reduced sentence if they testified Jones was the leader in various drug deals.
After she was convicted, Jones was slapped with sentence enhancements for what prosecutors described as her position as a drug ringleader and for carrying a gun during the crime. (She denied she was the ringleader, and a legal concealed-carry permit in her name was used as “evidence” that she was going to use the firearm in the course of a drug conspiracy.) Her sentence also was enhanced for what prosecutors described as false testimony in her defense.
Federal sentencing guidelines are different from Texas’. To ensure uniformity across the nation, federal courts use a grid that scores various enhancements, adding time to a sentence: If you committed your crime while out on probation or supervised release — bump up a number. If you’ve been to prison before — bump up a number. Judges can decide whether to follow the guidelines, but the law says they must consider them.
With all the enhancements piling up, the judge sentencing Jones had only one punishment option, and it was essentially a death sentence. “I deserved some time,” she says. “I was a middle person, but I ended up being labeled as a kingpin.” She was initially sent to federal prison in Tallahassee, Florida — something Jones says was doubly hard on her family, “like a second punishment.”
After five years, she had serious doubts about whether she’d ever get out (there was no possibility of parole; a clemency petition was her only hope). By then, she’d heard many stories similar to her own and had friends who’d died in the system. “Still, I couldn’t see myself dying in prison,” she says.
Now Jones counts herself among the lucky ones. In April, she was released after receiving clemency from President Barack Obama — part of an effort to commute the sentences of inmates given harsh penalties during the 1990s war on drugs.
Jones’ attorney, Brittany Barnett-Byrd, remembers getting a phone call from the Office of the Pardon Attorney at the U.S. Department of Justice. “She said the president had just granted clemency to Sharanda and her release date would be April 16th, 2016,” Byrd says. “I had just 15 minutes to call her daughter and for me to cry really, really hard and get myself together before calling Sharanda. The first thing I said was: ‘You’re going home.’”
There’s little evidence Texas’ habitual offender laws work. A 2000 report commissioned by the U.S. Department of Justice into three-strikes laws across the nation found that they had virtually no impact on crime rates. (Surprisingly, the researchers also found that the laws hadn’t clogged up the courts and jails as much as expected; prosecutors and judges had found work-arounds and the effort had largely been “a symbolic campaign,” according to the report.)
Those findings were confirmed 12 years later by California criminologist Robert Nash Parker, who found that the state’s three-strikes law had done nothing to reduce its crime rate.
Instead, crime had been decreasing at about the same rate in every state in America for two decades.
Texas has made halting but significant progress in criminal justice reform. In recent years, it closed three prisons; in the last legislative session, truancy for juveniles was decriminalized, and property theft thresholds were brought in line with inflation, a change that will likely push incarceration rates down significantly.
It’s a start, but many want to see it go further. The Texas Public Policy Foundation (TPPF), a conservative think-tank that supports sentencing reform from an economic standpoint, suggests legislators consider whether sentence enhancements actually deter criminal conduct and if there are alternatives.
TPPF also points out the absurdities of some of the felony offenses that can lead to a third strike: practicing acupuncture without a license, “violating bingo regulations” and bigamy, for example.
In the meantime, Dayries sits in his prison cell at Walker County’s Ellis Unit, hoping somebody will reply to one of the letters he sends asking for help. He spends his days working out in the gym and reading the Bible. In six years he’s had no communication with his mother or siblings. Nor does his daughter visit. “I hope she never does,” he says. “I’d like to get out of here and see her.
“I’m so happy for [Sharanda Jones] that she’s out. I’m so happy that somebody stepped in and said enough is enough. My day’ll come.”