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Three Strikes Laws - The California Experience

Timing is everything.  After the murder of his daughter by a parolee in 1992, California resident Mike Reynolds had been pushing the state legislature to adopt harsher laws on repeat offenders, without success.  Then a year later little 12-year-old girl named Polly Klaas was kidnapped out of her California suburban home, raped, and murdered.  The case garnered national publicity, especially since the perpetrator, Richard Allen Davis, turned out to have a criminal record dating back thirty years, which included numerous robberies, kidnappings, and burglaries.  Suddenly legislators were falling all over themselves to demonstrate their toughness on crime. 

Despite the passage of a bill that would have increased penalties on recidivists, Reynolds pushed ahead with an initiative, and in 1993 was rewarded with the passage of Proposition 184, California's "three-strikes" laws.  Not the least of the oddities surrounding its adoption was the fact that Polly Klaas' father opposed it as being overly severe.  One of the other oddities is that neither side's predictions about the effect of the law was borne out.

While the concept of "three-strikes laws" quickly spread elsewhere -- a decade after Proposition 184 was passed, 26 other states and the Federal government had somethiing similar -- California's version is different, in that while the first two strikes have to be for "violent" or "serious" felonies, the third strike does not:  any third felony brings an automatic sentence of 25 years to life.  This led to some anomalous results:  Gary Ewing's third strike was for shoplifting golf clubs, and Leandrado Andrade got his for stealing $153 worth of videotapes.  The US Supreme Court affirmed the sentences for Ewing and Andrade in 2003 against an 8th Amendment challenge, holding that the law "reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated."  The next year, by narrow 5-point margin (Prop 184 had passed by 40 points), Californians rejected a measure to amend the law to require that the third strike be for a violent or serious offense.  (It should be noted, though, that in 2000 an initiative was passed by landslide margins which essentially eliminated drug possession as a third strike.)

Although that resolved the legal questions regarding the law, the issue of its practical effects remains largely unsettled.  When Prop 184 was placed on the ballot, the Rand Corporation did a study of its likely ramifications, and concluded that it would reduce crime by 22% to 34% a year, at a cost of an extra $4.5 to $6.5 billion in increased prison expenditures; some estimates concluded that the state would have to build an additional twenty prisons, and that the law would result in 100,000 additional inmates within the decade.

The argument about cost has not been borne out.  In fact, California hasn't built any new prisons since 1994, let alone twenty of them.  That's not to suggest that California's prisons aren't overcrowded; right now, the state houses 170,000 inmates in prisons designed to hold less than half that number.  Still, it's hard to argue that three strikes is responsible for the overcrowding, given that by 2004, the number of imprisoned third strikers was only 7,500.

The question of the effect on crime is murkier.  The California Attorney General issued a report in 1998 concluding that in the four years since the three strikes law was enacted, it had resulted in 4,000 fewer murders and 800,000 fewer crimes.  The analysis, however, was based on a simple comparison of crime rates before and after the passage of the act, and ignored that the decline in crime was a nationwide trend that had predated passage of the act by at least three years, and continued thereafter.  The Justice Policy Institute, which opposes the law, released a study in 2004 showing that in the preceding ten years, crime in New York, which doesn't have a three strikes law, declined by 27.2%, while California's decline was 19.8%. 

The problems in making these comparisons are highlighted by a 2005 study by the non-partisan California Legislative Analyst's Office, which concluded,

Our survey of the literature, as well as discussions with leading criminologists, found that there is little consensus among researchers about the impact of Three Strikes on public safety, even after more than ten years of application. 

Particularly interesting is the study's comparison of counties which pursued three strikes aggressively, versus those which pursued them rarely.  (As might be guessed, for example, the official policy of the San Francisco prosecutor's office is to indict for three strikes only in extreme cases.)  The study found no difference in the violent crime rate among those counties:  violent crime in the four counties least likely to send strikers to prison declined by an average of 45 percent, while violent crime in the counties most likely to send strikers to prison declined by an average of 44 percent.

This highlights one of the other consequences of three strikes law:  it invests a huge measure of discretion in the prosecutor. When that discretion is exercised in favor of bringing charges which would result in a third strike, the result is more trials:  the Legislative Analyst's Office study found that "the rate of felony cases decided by jury trial increased almost 10 percent after the enactment of Three Strikes," mostly because "many defendants do not plea bargain their striker cases," believing that they have nothing to lose by going to trial, given the penalty they'd get even on a plea.

So what to make of all this?  Although the deterrent effects of third-strike laws are often exaggerated, especially by those groups who have a dog in the fight, there are more reliable independent studies, like this one from George Mason University, which demonstrate that the laws probably do have some effect.

What's more, deterrence is not the solitary goal of a penal system.  Public confidence that the justice system will impose sufficient punishment for crime is important, too.  Revenge is probably too strong a word, but a valid societal purpose is served if people feel that violent criminals are justly punished and excluded from society. 

In this respect, California's law is too broad:  the Legislative study found that over half the prisoners serving the sentence mandated by the law had committed a third strike which was non-violent.  Length of sentence might be a problem here, too, although California's system is actually not as severe as some others; Washington, for example, imposes life without parole for a third strike.  But crime, and especially violent crime, is a young man's game; imprisoning someone much beyond the age of 50 or so provides little benefit to society in comparison to the cost.

With all that in mind, next week we'll take a look at SB 208, Ohio's proposal for a three-strike -- actually, a two-strike -- law.

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