Thursday, April 10, 2003
Copyright © Las Vegas Mercury

Local View: Supreme Court strikes out

By Randall G. Shelden

Recently the U.S. Supreme Court ruled that California's "Three Strikes and You're Out" law does not constitute "cruel and unusual punishment." Obviously, the court majority failed to do any research.

California Gov. Pete Wilson signed the legislation on March 7, 1994, stating that, "It 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 "career criminals" just did not get the message. Perhaps the message was sent to the wrong people.

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

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

The "Three Strikes" legislation was basically a 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 on 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 a "habitual offender law," which targets certain "career" offenders after so many convictions (usually two or three) and gives them long sentences. Also, virtually ever state has various "sentencing enhancements" under which years are added if there are special circumstances, such as use of a weapon, a crime against a senior citizen or a child or a crime committed as a gang member.

Long before "Three Strikes" this country had some of the toughest sentences in the world. 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 important, since the worst criminals are already being dealt with by existing laws, when new legislation such as "Three Strikes" is passed, prosecutors look around in vain for the so-called "super-predators" and, unable to find very many, begin to target lessor offenders. Some of the results of the "Three Strikes" legislation proves the point.

First, in California and elsewhere, we have been witnessing an aging of the prison population. In California, the proportion of those older than 40 sentenced to prison increased from 15 percent to 23 percent between 1994 and 1999; the median age of all prisoners rose from 29 to 31. This suggests we are targeting those offenders who will be 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 increase, since older people tend to need more medical attention.

Second, proponents contend that "Three 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, we have actually seen virtually no change in the crime rate between the early 1970s and the new century. More specifically, across the country drug offenses accounted for more than 40 percent 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 nonviolent offenders. In California almost 60 percent of those sentenced for their third strike were nonviolent offenders (mostly drugs and property); almost 70 percent of the "second strike" cases were nonviolent offenders.

Finally, the law was supposed to act as a deterrent. A recent study found that of all felonies committed and brought into the court system in California, only 10 percent were second or third strikes. In other words, 90 percent were committing their first felony.

Whenever politicians create new crime control policies, they are almost invariably trying to look "tough on crime" for the benefit of a largely uninformed public. The facts are usually ignored, as in the case of "Three Strikes." The existing research on sentencing would have showed the folly of such a law.

Randall G. Shelden is a professor of criminal justice at UNLV. He is co-author of Criminal Justice in America: A Critical View (Allyn and Bacon).