Randall G. Shelden


Three Strikes Goes Down Looking


Another "get tough" policy has failed the test of time.  The cute sounding "Three Strikes and You're Out" was originally passed in 1993 in California and it was supposed to impose extremely harsh sentences after a conviction for a third felony.  Theoretically, it was supposed to "get tough" on the "toughest criminals" - mostly repeat, serious, especially violent offenders.  It was, unfortunately, based upon the erroneous assumption that the criminal justice system was "too lenient" on criminals (when in fact just the opposite was occurring); it was also based upon a few "celebrated cases," especially the kidnapping and murder of Polly Klass.  It is an example of what I call "exception-based policies," where social policies are based upon the rare case, which erroneously is assumed to represent all other cases.

I base my observation on several different studies that have tested this policy over the years, the latest of which comes from the Justice Policy Institute in Washington, D.C.   Their latest study, called "Still Striking Out: Ten Years of California's Three Strikes," provides some concrete evidence of the failure of various "get tough" legislation during the past couple of decades.  The evidence provided in not only this study but many others completely contradicts the recent statement by former California Secretary of State Bill Jones, who was the original law's coauthor, that this law "has been the most effective criminal justice initiative in the history of California."

While it is true that the crime rate in California went down in the 1990s, it went down all over the country, including states that had no such law on the books.  Incidentally, unknown to the average citizen is the fact that similar laws have been on the books for decades, going by such names as "habitual offender" laws, which applies added punishments for second, third or more felonies.  Others go by such names as "use a gun, go to prison" and "sentencing enhancement laws" (like  laws adding penalties if the victim is a senior citizen).  In other words, "three strikes" was not even needed.

The Justice Policy Institute's study added some new data to the mounting evidence of the failure of "three strikes."  For instance, the total prison population increased by 23% since the law was passed, with those sentenced under the new law increasing by a whopping 863%!

A second finding is that, contrary to promises of getting tough on violent criminals, over half of those sentenced for their "third strike" were convicted of non-violent crimes (many people do not realize that this law applied to many convicted of their "second strike" (so much for the baseball analogy), while almost two-thirds (65%) of both second and third strikers were non-violent offenders.  Offenders sentenced for drug possession under this law outnumbered murderers by ten to one (672 - 62).  Those convicted of petty theft and serving a 25-years-to-life sentence went from just two in 1994 to 354 in 2003.

As other studies have shown, the three strikes law has been applied in greatly disproportionate numbers to blacks and Latinos than to whites.  For instance, the incarceration rate for blacks convicted for the third strike is 143 (per 100,000) compared to 12 for whites; for Latinos the rate is 17.  For both second and third strikes, the incarceration rate for blacks is 705, for Latinos it is 125 and for whites it is 70. 

The Justice Policy study also compared different counties in California to find out if there were any differences in terms of the extent to which three strikes was used.  They found significant differences in the rate at which counties used this law.  More important, however, was this finding: in the six largest counties that used the three strikes law most often, the decreases in crime were much lower than in counties that used the law at a much lower rate.  Likewise when comparing different states.  For instance, New York, which does not have such a law, had a much greater drop in crime than California in the 1990s.

Bill Jones apparently does not want to let go of his support of this piece of legislation.  He claims that the state has saved more than $28 billion through savings in insurance and the costs of returning ex-offenders to prison.  He ignores two things here.  First, most of the costs of returning parole violators stem from the high recidivism rate of  non-violent offenders, especially drug offenders, who should not have been sentenced to such long terms to begin with.  Studies have consistently shown the enormous costs (often hard to calculate) of the "war on drugs" (the total cost of this war was an estimated $39 billion last year).  Second, not usually calculated in the costs is what happens to the families of the prisoners sentenced to such long prison terms, especially petty non-violent and drug offenders.  What must be the cost just on taking care of the children of these offenders?  Criminological research has consistently shown that among the most predictive factors for delinquency is having a parent in jail or prison.  How many of these children are already involved in the juvenile justice system? How many children of these prisoners have joined gangs?

This is not just about three strikes and you're out laws.  This is about the problem of "getting tough" on crime in every state in the country. Despite years of this kind of legislation, the overall crime rate today is about the same as it was 30 years ago, except for one glaring difference: violent crime is higher today.  It is time to "get smart" instead of "getting tough."