Saturday’s L.A. Times has a profile on Andrew Abernathy, a convicted three striker who would be released if the three strikes law were “fixed” by Proposition 66. I’ve blogged about Abernathy before, but apparently his history is even worse than I previously thought. Thus far, Abernathy has done the following:

• Tortured his animals to death as a youth.
• Forced his sister to play Russian roulette.
• Stabbed two men within inches of their lives on two separate incidents in 1986.
• Called his ex-wife in 1998 to tell her he was on the way to behead her new husband with a samurai sword. Abernathy was then arrested in his car, and found in possession of a sword.
• Beat his dog, Marie with a golf club, stabbed her in the heart with a stake, and decapitated her with pruning shears in 2004 - all to get back at his ex-girlfriend, Marie.

Unfortunately, all the above offenses resulted in “only” three felony convictions, one for each of the 1986 stabbings, and one for felony animal cruelty. As defined by both the existing three strikes law and the watered down one proposed by Prop. 66, felony animal cruelty is neither “violent” nor “serious,” and thus cannot form the basis of a first or second strike. That’s OK under the existing law, which only requires the first two strikes to be “violent” or “serious.” It’s not OK under Prop 66, however, which would free Abernathy after three years, almost one of which has already passed.

Lest anyone mistake the phrase “law professor” for anything connoting credibility, consider this statement by McGeorge prostitute law professor Michael Vitiello:

“No one has ever said that 25 years to life is a suitable punishment for animal cruelty,” said Michael Vitiello, a professor at the McGeorge School of Law in Sacramento who has given legal advice to the Proposition 66 campaign. “If we’re punishing them for their past, that’s double jeopardy.”

No, it isn’t, and Vitiello damned well knows that. In fact, in the 1995 case of Witte v. U.S. the U.S. Supreme Court ruled that even uncharged conduct be taken into account for sentencing purposes under certain circumstances without violating the double jeopardy rule. As to past, convicted conduct, no court has ever ruled that taking such past offenses into account constitutes double jeopardy. If they had, there would be no “need” for Prop 66, as the courts would have stricken down every state’s three strikes law a long time ago - not to mention the rest of every Penal Code that has ever been enacted anywhere.

Next time some criminal advocate lectures you on the need to “reform” our three strikes, think about Andrew Abernathy. Forget that gang member fine, upstanding young man who got released on appeal years ago 25 to life for merely threatening a group of innocent kids without provocation after building up a rap sheet a mile long stealing one measly slice of pizza so he could show everyone he still ruled this part of the ‘hood eat. That guy’s irrelevant, as is the idiot ex-prosecutor who charged him in the first place. This “reform” is not about him. It is about Andrew Abernathy, and literally tens of thousands of others like him. These are not nice people who are being disproportionally sentenced for a minor mistake. They are extremely vicious individuals who have made a career (either figuratively or, in some cases, literally) of preying upon innocents. Even in prison, they are a menace prison guards and to other inmates. If freed, they can and will continue to harm other people - it’s only a question of who, when and where.

To put this as simply as possible but no simpler, a vote for Prop 66 is a vote for Andrew Abernathy to viciously attack another innocent. The guy has already tried unsuccessfully to kill four people. With a little luck, maybe his fifth try will fail, too.

Cross-posted to Patterico’s Pontifications.