A California law intended to imprison habitual criminals will be reviewed later this year by the U.S. Supreme Court. The "three-strikes law" was examined at a recent forum on criminal justice at the University of Southern California.
The law draws on a baseball metaphor: three strikes and you are out. It says repeat offenders who commit violent or serious crimes, including home burglaries, should receive a prison sentence of 25 years to life for their third offense. Controversially, the third offense need not be violent. Of the 7,000 people imprisoned in California under the legislation, about 330 committed petty theft as their third offense.
Critics say the law, approved by California voters in 1994, was an overreaction to fears of crime, promoted by cynical politicians.
Dan Lungren, California's attorney general at the time, rejects that argument and says the law has been effective. "At least for the first several years after it went into effect while I was attorney general, we saw a drop of nearly 31 percent across the board in serious and violent crime in California versus a 17-percent drop for the rest of the country," he says. "The rationale for it, I think, has been borne out, which is that a very small portion of the criminal community, people who commit crime or are prone to commit crime, commit a huge amount of that crime. There have been studies that suggest anywhere from three to seven percent, most of the studies show about six percent, of the criminal population commit upwards of 50 percent of all crime."
And those are the people removed from the streets under the three-strikes law, says the former California attorney general.
Mr. Lungren is a Republican. His Democratic successor also supports the law, although he says he welcomes the court review to clarify its limits.
Critics say, however, the law casts too wide a net. The Supreme Court will consider the case of a man who had earlier been convicted for two home burglaries. Under the three-strikes law, he was sentenced to 50 years in prison for stealing some videotapes. The court will also consider the case of a repeat offender sentenced to 25 years in prison for stealing three golf clubs.
Criminal justice analyst Peter Greenwood says, aside from the question of fairness, the approach is not effective in managing crime. He says that overall, the U.S. justice system keeps the most serious felons in prison, away from the public. "There have been studies that show that people who are really the bad folks, the dangerous folks, eventually get caught up and eventually end up spending lots of time," he says. "And so in general, we have the worst folks in prison. A lot of people would argue we've got a lot of people who we could control just as effectively on the streets at a lot less cost. Prison is a very expensive solution to the crime problem."
Florence Cooper, a federal district judge in Los Angeles, says prosecutors and judges now have discretion in applying the three-strikes law. That was not always the case. In the mid-1990s, she struggled with the law when she was a state court judge. "In the first two or three years of three-strikes in Los Angeles, the district attorney was insisting that every case that could be filed as a third-strike would be, and would be prosecuted that way," she says. "And so many of us were being forced to go to trial on cases with petty theft as the current offense, and a background of non-violent crime, and somebody looking at 25 years to life. And everybody read the stories about stealing a piece of pizza or stealing a videotape, but that was true. Those cases were happening, and it was a very frustrating and difficult time for judges."
More than two-dozen U.S. states now have a three-strikes law. California's is one of the harshest. It was passed when public feelings were strong, after a 12-year-girl was kidnapped and murdered by a repeat offender.
Vincent Schiraldi of Center on Juvenile and Criminal Justice in Washington DC says the focus on violent crimes by the news media heightens public fears and leads to measures that he considers unreasonable. He puts California's three-strikes law in that category, as well as restrictions imposed a few years ago in the aftermath of a series of school shootings. "Zero tolerance" weapons policies have led schools to expel children for carrying nail files and pocket knives.
In fact, says Mr. Schiraldi, violent youth crime is dropping. "Between 1993 and 1999, there was a 68 percent decline in homicides by juveniles in America," he says. "The juvenile homicide rate was as low as it was in 1968."
Yet in 1999, two-thirds of the public thought juvenile crime was rising. Mr. Schiraldi says, in reality, there was a one-in-two-million chance of being killed in a U.S. school. "Seventy-one percent of the public thought a school shooting was likely in their school! This isn't just a little off, this isn't marginally misinformed," he says. "This is exponentially, profoundly misinformed on the crime issue. And it's extremely difficult to set sound public policy in an environment in which the public is that misinformed on what's going on."
Former California attorney general Dan Lungren says concerns about crime are legitimate and that tougher laws are part of the reason that crime rates are improving. He says the three-strikes law targets people whose criminal history shows they are unable to live by society's rules. If they keep committing crimes, he says, they belong in prison. "My argument is that if they've shown by their conduct that they haven't learned the lesson that they've got to live in a law-abiding community, then we ought not wait until there's blood on the street to send them back," he says.
The U.S. Supreme Court will examine California's three-strikes law this fall. The court will decide whether harsh sentences imposed for a minor third offense constitute "cruel and unusual punishment," which is banned under the U.S. Constitution.