Supreme Court Strikes Out

 

Recently the United State Supreme Court ruled that California=s infamous AThree Strikes and You=re Out@ law does not constitute Acruel and unusual punishment.@ Obviously, the majority of this court failed to do any research.  California governor Pete Wilson signed this legislation on March 7, 1994, stating that AIt sends a clear message to repeat criminals.  Find a new line of work, because we=re going to start turning career criminals into career inmates.@  Well, I guess these Acareer criminals@ just did not get the message.  Perhaps the message was sent to the wrong people.

This law was supposed to target the most Adangerous@ criminals and lock them up for 25 years or more after a conviction of a third felony.  Note the word Afelony@ used here. Felonies include both murder and offenses like stealing a bicycle or a pair of sneakers (there was an instance where a man, with two previous burglary convictions, received a sentence of A25 years to life@ for stealing a pair of tennis shoes - there are hundreds of such examples), many drug offenses, among hundreds of other relatively minor offenses. 

Yet, these are among the kinds of offenses that have resulted in thousands of commitments to prison in recent years.  Just like throwing a large net into the lake to catch some big fish, you will get mostly small fish and junk, passing sweeping and vague laws will engulf mostly minor offenders.  Why?  Simply because most offenders have not committed serious, violent crimes.  Law and order politicians just like us to think there are all sorts of Adangerous@ criminals running amok just so we will elect them when they promise to protect us.  But they never do protect us.

The legislation was basically a big con job.  In the first place, it wasn’t needed, since every state already has sentences set aside for the truly dangerous criminals, such as life (with or without parole), plus any number of years that can be handed down depending upon the crime (25, 50, 100 years is not that uncommon), and of course the death penalty is law in many states.  Moreover, virtually every state has some variation of what is known as Ahabitual offender laws,@ which targets certain Acareer@ offenders after so many convictions (usually two or three) and gives them long sentences.  Also, virtually ever state has various Asentencing enhancements@ where so many years are added on if there are special circumstances, such as use of a weapon (Ause a gun, go to prison@), a crime against a senior citizen or a child, a crime committed as a member of a gang, etc.

Long before AThree Strikes@ this country had some of the toughest sentences in the entire world.  Thus, we have consistently been super tough on the worst criminals (how do you think Charles Manson was put away for so long?) and thus do not need any more fancy-sounding legislation.  More importantly, since the worst criminals are already being dealt with by existing laws, when new legislation is passed (like AThree Strikes@) prosecutors look around in vain for the so-called Asuper-predators@ and, unable to find very many, invariably begin to target lesser offenders (a Atrickle-down effect@).  Looking at some of  the results of the AThree Strikes@ legislation proves my point.

First, in California and elsewhere, we have been witnessing an aging of the prison population.  In California, the proportion of those more than 40 years of age sentenced to prison went from 15% to 23% between 1994 and 1999; the median age of all prisoners went from 29 to 31.  This means that we are targeting those offenders who will be the least likely to get into further trouble with the law since offending tends to decrease with age, regardless of imprisonment.  Further, as the prison population ages, the costs of imprisonment will increase, since older people tend to need more medical attention.

Second, proponents claims that AThree Strikes@ has been responsible for the recent drop in crime in California.  Nonsense. During the 1990s crime declined all over the country and most of the states experiencing these drops did not pass this kind of legislation.  In fact, the drop in crime began before this legislation went into effect.  Over a longer period of time, we have actually seen virtually no change in the crime rate between the early 1970s and the new century.  More specifically, all over the country drug offenses  accounted for more than 40% of the increase in incarceration during the past two decades (violent crimes accounted for less than this percentage). 

Third, the legislation was designed to target serious and violent offenders.  To the contrary, it has targeted mostly non-violent offenders.  In California almost 60% of those sentenced for their third strike were non-violent offenders (mostly drugs and property); almost 70% of the Asecond strike@ cases were non-violent offenders.

Fourth, and finally, the law was supposed to act as a deterrent (Asend a message@ to career criminals). A recent study found that of all felonies committed and brought into the court system, in California, only 10% were eligible for either two or three strike laws.  In other words, 90% were committing their first felony.

There is a lesson here.  Whenever politicians start to create new crime control policies, they are almost invariably seeking to look Atough on crime@ for the benefit of a largely uninformed public.  The facts are usually ignored, as in the case of AThree Strikes@ where the existing research on sentencing would have showed the folly of such a law.  Most of these politicians must certainly be aware of what the research says, since it is readily available to any of their legislative aids.  They just simply choose to ignore it. 

 

Las Vegas Mercury, 4/10/03