Local View: Striking out on crime

By Randall G. Shelden

Another "get tough" policy has failed the test of time. The cute-sounding "Three Strikes and You're Out," originally passed in 1993 in California, was supposed to impose extremely harsh sentences after a third felony conviction. Theoretically, it was supposed to "get tough" on the "toughest criminals"--mostly repeat, serious, especially violent offenders. It was, unfortunately, based on 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 on a few "celebrated" cases, especially the kidnapping and murder of Polly Klaas. It is an example of what I call "exception-based policies," where social policies are based on the rare case, which erroneously is assumed to represent all other cases (Las Vegas political commentator Jon Ralston calls this "legislation by anecdote").

I base my observation on several studies that have tested this policy over the years, the latest of which comes from the Justice Policy Institute in Washington, D.C. Its study, called "Still Striking Out: Ten Years of California's Three Strikes," provides concrete evidence of the failure of various "get tough" laws 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, the original law's co-author, 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 in 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, often called "habitual offender" laws, which apply added punishments for second, third or more felonies. Others go by names such as "use a gun, go to prison" and "sentencing enhancement" (such as 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 new data to the mounting evidence of the failure of "three strikes." For instance, the total prison population increased by 23 percent since the law was passed, with those sentenced under the new law increasing by a whopping 863 percent. A second finding is that, contrary to promises of getting tough on violent criminals, more than half of those sentenced for their "third strike" were convicted of nonviolent 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 percent) of both second and third strikers were nonviolent offenders. Offenders sentenced for drug possession under this law outnumbered murderers by 10-to-1 (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. The incarceration rate for blacks convicted of the third strike is 143 per 100,000 population compared with 12 per 100,000 for whites; for Latinos the rate is 17. For both second and third strikes, the incarceration rate for blacks is 705, for Latinos 125 and for whites 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 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 '90s.

Bill Jones apparently does not want to let go of his support of this piece of legislation. He claims 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 nonviolent 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 nonviolent and drug offenders. What must be the cost just in 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. 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" rather than "get tough."

Randall G. Shelden is a professor of criminal justice at UNLV.