Jess Nichol has built a successful career as a leadership consultant, cultivating her skills as a public speaker while keeping her professional life separate from a childhood trauma that shaped her — and that also shifted the direction of the American criminal justice system.
About two years ago, she found herself in a crowded room listening to a motivational speaker. Most people, the speaker was saying, focus on problems that are simply too small. Don’t worry about things like which seat you get on the airplane. Take on some bigger problems. What’s the biggest problem that you have access to in your life?
The words struck a chord.
“There is a problem that’s been sitting in my life, in my consciousness, for decades now,” she recalled thinking. “It’s time to move the needle. I remember calling Annie the next day and saying, ‘Hey, let’s talk about three strikes.’”
“Annie” is Annie Nichol, Jess’ younger sister, and the problem with which both had been parrying for years arose from the notorious kidnapping and murder of a third sister: Polly Klaas.
Polly was killed in 1993, when Annie was 6 and Jess, like Polly, was 12.
The crime, committed by a man with a long record of serious and violent offenses, moved California voters to adopt the “three strikes and you’re out” law the following year. The ballot measure was meant to keep people who had committed at least two serious or violent felonies locked up for life upon conviction of a third crime, even one that was neither serious nor violent. Three strikes became the cornerstone of California’s, and then the nation’s, tough-on-crime movement and contributed to the unconstitutional overcrowding of the state’s prisons.
A countermovement began making significant headway roughly a decade ago. Voters modified three strikes in 2012 and went on to adopt a series of landmark reforms, softening punishments for drug possession and certain types of shoplifting, and granting people in prison greater access to parole.
Now, with homicides and other violent crimes up sharply, and with key county and state elections looming in California, the debate over the purpose and practices of the criminal justice system is intensifying. And it includes this question: What is the role of the victim in the criminal justice system?
Jess and Annie Nichol want a place in that debate. They are pushing back against the laws that were passed in their sister’s name, and they want to alter her legacy.
And although they don’t like to talk about it, and although they choose their words delicately when the subject comes up, that means speaking out in opposition to the views expressed by one of the leaders of the tough-on-crime movement and the instigator of the three-strikes law adopted 27 years ago: Marc Klaas, Polly’s father.
“We know what we’re getting into,” Annie told me.
I hope they’re right.
Jess Nichol, 40, and Annie Nichol, 34, made their first public statement about their sister and about the laws that were adopted after her killing in a Los Angeles Times op-ed published a year ago. In it, they cautioned California voters against rolling back the criminal justice reforms adopted in recent years.
“Over the last 26 years,” they wrote, “three-strikes laws have significantly contributed to mass incarceration in the United States and have exacerbated the systemic racism inherent in our justice system.
“As Polly’s sisters, it is difficult to fathom how these laws became our sister’s legacy. The beauty of Polly’s life shouldn’t be overshadowed by this pervasive injustice.”
Now, they are recording leading voices in criminal justice reform and people whose lives were affected by crime and punishment. And in April, I started a series of conversations with them about their efforts to promote a more rehabilitative and less gratuitously punitive criminal justice system.
Polly Klaas’ story has been the subject of countless books, articles and TV documentaries presented as part of the “true crime” genre. The story of her abduction from her Petaluma home on the night of Oct. 1, 1993, by Richard Allen Davis is well known.
Polly was 12, living with her mother and her younger sister, Annie. Her parents, Marc and Eve Klaas, had divorced, and Eve had married Allan Nichol, whose children from a previous marriage included Jess. Polly and Jess, now stepsisters, were the same age and immediately became good friends.
Polly was having a slumber party at her home with two other friends as Annie slept in another room (Jess was at her mother’s house). Davis broke in, threatened the girls with a knife, tied them up and placed hoods over their heads. Then he took Polly, and they disappeared.
Every murder, every kidnapping, is shocking. But this one has the elements of a horror movie: a young girl, a slumber party, a fearsome stranger in the house, a knife, an abduction. The kidnapping became a fixture in the daily news for two awful months, until Dec. 4, when Davis confessed and led investigators to Polly’s body.
“I remember my dad pulled us in a circle,” Jess said. “And there were, I don't know, eight to 10 people there. He told us. And we had to leave that house as soon as possible” — because reporters and cameras were about to arrive.
There was no time for the family to digest what they had heard. They had to go. Because the news media were coming.
The kidnapping, the long wait without knowing, and then learning the truth — these were only the beginning of the trauma.
Jess recalled being excited about the three-strikes law, which was adopted first by the Legislature and then by the voters in 1994 in a kind of tough-on-crime competition. She was told the measure would prevent the same kind of thing happening to other kids.
And then she remembered hearing that the law also would put away people who committed nonviolent crimes. And thinking that it wasn’t what she and some in her family thought it would be.
“And I remember thinking, when I was 13, maybe someday our family can do something to change that,” she said. “That this is actually not right.”
That was 27 years ago. She was waiting, as was Annie, for the right moment, when they were ready to speak out.
The right moment came last year, with the killing of George Floyd, the protests, and the failure of a ballot measure to roll back criminal justice reforms in California. “It’s kind of a strange thing to be taking up the mantle of victimhood,” Annie said, “because it’s really not how I’ve identified for most of my life. But it just feels like this is the time.”
The American system of criminal justice is (or was) meant to remove crime victims and survivors from the equation. Criminal trials make the state the accuser and assign judges and juries the task of determining the facts and setting the terms of punishment, without regard to how sympathetic a victim may be, or how popular and persuasive a survivor’s appeal for justice.
But the role of victims grew in the 1960s. The historian Jill Lepore has called the victims’ rights movement “the child of an unlikely marriage of conservatism and feminism.” Its most notable achievement may be the use of the victim impact statement, read aloud in court or submitted for review before sentencing. Such statements were embraced by law-and-order proponents who believed the U.S. Supreme Court of the 1950s and ’60s granted too many rights to criminal defendants. But they were also championed on the left by advocates for victims of rape and other crimes, who too often saw their attackers let off with little accountability.
California voters in 1982 adopted the Victims’ Bill of Rights Act, which accorded crime survivors the right to speak at sentencing and parole hearings. They went further in 2008 with Marsy’s Law, which grants new legal rights to crime victims and, importantly, their families, who otherwise had no formal role in proceedings against the accused perpetrator. Nine other states soon adopted similar laws.
If there is a line separating the victims’ rights and tough-on-crime movements, it’s not always easy to identify. After Polly’s murder, Marc Klaas became (and remains) an outspoken proponent of tougher sentences for violent crime, as did Mike Reynolds, whose 18-year-old daughter, Kimber Reynolds, was killed the year before Polly’s death.
Recently, the criminal justice reform movement has put forward a different victims' rights narrative. Reform proponents argue that crime victims and survivors want prevention and treatment, not longer sentences. And they note that a disproportionate number of crime victims are people of color, and that victims and perpetrators are often the same people, caught in cycles of trauma and violence.
Now the reform and tough-on-crime advocates are engaging in an ugly tug of war over the role crime victims should play. Los Angeles County Dist. Atty. George Gascón has redefined his agency’s relationship with crime victims, no longer arguing at parole hearings against inmate releases. He is also building out a victims advisory board oriented more toward recovery than retribution. Meanwhile, L.A. County Sheriff Alex Villanueva has joined a team trying to recall Gascón and adopted the #victimsmatter hashtag.
It should go without saying that those who have suffered from crime should not be victimized a second time by candidates or elected officials trading on their pain in pursuit of support for harsher laws. The families of murder victims, and other survivors of crime, should instead receive greater help in dealing with their trauma. And they ought to receive some assurance that the same thing that happened to themselves or their loved ones will not happen to others.
That's what the younger Jess and Annie thought the three-strikes law would bring. But that hasn't happened.
Instead, tough sentencing laws have been used disproportionately against Black and Latino people, many of whom were locked up for offenses that might have been better handled with alternatives to incarceration, such as mental health treatment or substance use counseling.
The Nichol sisters have spent a year listening to people of color affected by an unbalanced criminal justice system and recorded many of their voices. Now they are starting a project with a website, anewlegacy.com, a podcast and other avenues to share those voices with the public and to promote reforms.
They believe that if Polly had not been white, there would have been less media attention and less of a platform for them now.
"When I found out that we could contribute in a meaningful way to this movement … it wasn't really a choice," Annie said. "I don't want Polly's legacy to be purely about punishment and vengeance. I want it to be about healing and actual justice."
In taking up this mission, the sisters are entering the lion's den on a deeply fraught issue. But by adding their voices to the push for reform, they may find more people ready to listen.
This story originally appeared in Los Angeles Times.