Business Law Justice at Bat the Story

Business Law

Justice at Bat

The Story of Three Strikes Legislation

It has been said that only two things are certain - death and taxes. Yet to these two inevitabilities, many Americans would add a third -- crime. The fear of becoming the victim of a crime - especially of a violent crime - haunts many otherwise rational individuals. Violence, it seems, is everywhere. One need only turn on the television to be assailed by images of murder, rape, and physical assault. And, it is not only Hollywood that is the villain. Both local and national newscasts revel in the depiction and discussion of violent acts: a child is kidnapped; a pregnant housewife disappears and is later found murdered; a ruthless killer stalks the streets of a large city. The media like to quote facts. Just yesterday, on April 27th, it was reported that the murder rate in California's most populous urban areas had increased by eleven percent, this despite years of noticeable declines. The sudden upsurge was attributed to the State and the nation's, faltering economy. But, many Californians are not convinced. Nor were they convinced by the multitude of theories that were put forth to explain the skyrocketing crime rates of the 1970s and 1980s. Joblessness, drug use, and lack of education may indeed inspire some to commit violent and antisocial acts; however, to a majority of citizens in the Golden State, the root cause of such behavior is much simpler. Like the Eighteenth Century Englishman who penned Hanging Not Punishment Enough, they hold firmly to the idea that an increase in criminal activity is fundamentally linked to the lack of a strong deterrent. The anonymous author of that pamphlet advocated the replacement of the "relatively painless" punishment of hanging with more brutal forms of capital punishment, such as for example, breaking on the wheel. While few would go so far today, there does seem to be a consensus that today's "revolving door" justice is simply not enough. The solution? Many seek the stringent application of capital punishment, or at the very least, stern "three strikes" legislation - laws that would eliminate violent offenders from society one way or the other.

In some states, such as California, an attempt has been made to "balance" the two approaches. Initially, California's Three Strikes movement enjoyed only scant success. While many concerned citizens signed petitions, Governor Pete Wilson continually refused to sign the measure. However, in keeping with the general mood of public anxiety over crime, the media experienced no shortfall of inflammatory images. Help quickly arrived in the form of the Polly Klaas kidnapping case.

In 1993, a terrible tragedy occurred. It was one of those sensational crimes that serves the media in its effort to boost profits. Polly Klaas, a twelve-year-old girl, was abducted during a slumber party at her suburban home in Petaluma, California. Klaas was eventually found murdered, but not before the local and national media had thrown the story into the spotlight. Night after night, week after week, Californians and the rest of America watched as Polly's father made emotional pleas for information on his daughter's whereabouts. Eventually, a man named Richard Allen Davis was arrested and admitted to the kidnapping and murder. Davis had been previously arrested for burglary and kidnapping"

Davis was, therefore, the prefect candidate for Three Strikes poster boy. Davis' notorious career was quickly seized upon by Mike Reynolds, a Fresno photographer whose daughter had also been murdered by a parolee. For years, he had been a leading advocate for the Three Strikes Law.

The Klaas case...worked the electorate into an anti-criminal lather. Wilson and a senior California senator both spoke at the little girl's funeral. They turned the Klaas case into an example of everything that was supposedly wrong with the justice system. Even President Clinton singled out the Klaas case in his State of the Union Address, blaming leniency and softheadedness on crime as the cause for Polly's death.

Within a few weeks of Polly's murder, nearly every candidate running for a major California office, regardless of party affiliation, had endorsed Reynolds's three strikes initiative. And why not? Due to the massive media exposure in the Klaas case, polls showed that California voters believed that crime was the state's single biggest problem and that they were now in favor of the three-strikes initiative by an astounding margin of eight to one -- and 88-percent support for anything is the kind of poll results that get the attention of politicians and their consultants. It was clear that not supporting three strikes had become a recipe for electoral defeat. And just in case the polls weren't enough political incentive to back Reynolds's measure...the National Rifle Association and the prison guards' union began to pump money to candidates willing to support the harshest proposed version of the law."

Thus, it was good, old-fashioned yellow journalism that whetted public appetite for such a draconian measure. Constantly bombarded with the sights and sounds of the unthinkable, touched at the heart by the apparently preventable tragedy of a young girl brutally murdered, and of a family torn apart, California voters passed the measure almost without thinking. It was a natural gut reaction - just like reaching for a gun when you hear your burglar alarm go off in the middle of the night.

Of course, what goes bump in the night isn't always a murderous intruder. Act to hastily and it might be you who ends up in court. Yet act too hastily was precisely what many Californians did when they voted for Proposition 184 in 1994. Few had bothered to read the bill's provisions. Three Strikes laws had been tried before, indeed, they exist today in twenty-six states, but California's went further than any state's had gone before. According to the Golden State statute, any person who committed three felonies could - would - be sentenced to a minimum of twenty-five years to life in prison.

This means that even persons who would normally be considered little more than petty criminals would suddenly find themselves sharing prison space with the most hardened and dangerous individuals. A shoplifter arrested three times for stealing jewelry, or cell phones, or digital camera, or other relatively high ticket, items would be guilty of three counts of grand larceny. Is this the kind of career criminal that the Three Strikes Law was meant to attack? Individual Rights' arguments aside, the plan is a public policy nightmare.

Yet, for many even such extreme punishments are not necessarily enough. Capital punishment has made a strong comeback in many American states. However, it is not without its problems. Much evidence indicates that minorities are disproportionately sentenced to death, and as well, frequently receive poorer quality legal aid, prejudicial treatment, and a host of other negative consequences. There is also a very old argument concerning the real deterrent value of capital punishment, one that goes back to the days of Cesare Beccaria, the Eighteenth Century Italian philosopher of Crime and Punishment.

Beccaria made a number of points of great relevance to the contemporary debate. First, he argued that from the perspective of deterrence the death penalty was rather crude. Once an individual has committed a capital crime the principle of proportionality cannot be introduced, and the criminal has no incentive to moderate his behaviour for fear of receiving a worse sentence. Moreover, the association between sentence and crime is hard to retain in people's minds without a continual succession of executions. Prisoners, in contrast, serve as a continual reminder of the costs of wrong doing. Second, he contended that a right to punish with death could never have formed part of the original [social contract] contract -- it would be like willing your own murder. Consequently, the regular employment of capital punishment signified a condition of war between the state and its citizens, arising most probably out of a failure to rectify huge social equalities.

In virtually all cases of violent crimes, minorities and the poor are vastly overrepresented. Hispanics and African-Americans are much more likely than Whites not only to be convicted of a violent crime, but also to receive harsh sentences, including the ultimate penalty. According to Deputy Attorney General of the United States, Larry Thompson, the homicide rate among African-Americans was seven times that among Whites, with ninety-four percent of these murders being committed by African-Americans themselves. A report by the Justice Department showed that during the period from 1976 to 1993, African-Americans were also seven times as likely to commit murder as Whites. Still more frightening, another report from the Justice Department, "Homicide Trends in the United States" showed conclusively that African-Americans although on average only 12.1% of the population during that time period, committed however, fully 51.5% of all offenses. This is a figure grossly out of proportion to the number of African-Americans in the United States. In contrast, Whites who made up 84.3% of the population accounted for only 46.5% of all homicides.

Furthermore, intensive analyses of sentencing patters in the State of Georgia, as just one example, have revealed an inherent bias against minorities. Not only are minorities who commit murder and other violent crime more likely to be sentenced to death than their White counterparts, but the judicial system is further prejudiced in the case of a minority perpetrating a crime against a non-minority. Recording the results of prosecutions in the first several years after the reinstitution of the death penalty following its abolition by the United States Supreme Court,

During the period of 1973 through 1979, there were 2,484 defendants convicted of voluntary manslaughter or murder, 1,066 of whom formed the "stratified random sample" used in the CSS study. The overall death sentencing rate for the entire 2,484 cases was five percent, or 128 defendants. Unadjusted figures in the Baldus study showed that the death penalty rate for white-victim cases was 108 out of 981, while that for black-victim cases was 20 out of 1,503. Thus, white-victim defendants were sentenced to death at a rate 8.3 times higher than black-victim defendants.

To the rampant discrimination inherent in America's imposition of capital punishment, one can add the most damaging argument of all: that death sentences are no deterrent to the commission of serious and violent crimes.

Some death penalty opponents argued that the penalty actually had a "brutalizing" effect resulting in increased homicides. Such claims were supported by the research of Bowers and Pierce which found that in New York, from 1907-1963, approximate two additional homicides occurred the year after an execution. (79) Possibly drawing on this study, Senator Nolan explained: "Executions spread violence by signaling that it is acceptable to kill."

But if the death penalty does not actually decrease murder rates, does long-term incarceration prove any more of a deterrent?

Caught up in the continuing and strident debate, death penalty opponents argued that no evidence existed to support capital punishment as a possible deterrent. It would have been more precise for them to have said that there is little scientific evidence that capital punishment is a more effective deterrent than long-term imprisonment.

According to the best estimates, such wholesale incarceration of career - or even simply unlucky - criminals would present an enormous burden to society.

The annual cost of keeping an inmate in prison varies widely from state to state, but one authority has said that "a conservative estimate is $25,000 in yearly operating costs per inmate" and a construction cost of $100,000 per cell. Nonetheless, in the past twenty years there has been a massive investment in jails and prisons. State spending on correctional activities increased from $1.3 billion in 1971 to $18 billion in 1988 and the bill continues to grow. By 1990 corrections cost $24.9 billion. The increase in correctional personnel is also startling. In 1980 there were 270,000 correctional officers in the United States. By 1990 there were almost 556,000 correctional personnel in the United States (as well as 225,000 court employees and 117,000 prosecutor employees at a cost of $16.5 billion). In the eighteen years between 1973 and 1991, the United States more than tripled the proportion of its population that was imprisoned. In 1973 there were 93 inmates in U.S. prisons for every 100,000 people. By 1991 that figure was 292, more than three times the rate. In addition to the prison population, jails experienced unprecedented growth. Jails in the United States had a population of 157,000 in 1978; by 1991 the population was more than 426,000. The net result was that there were 1.25 million people behind bars as 1992 began.

Sadly, the American prison population has only increased since the early 1990's, and one must remember that the above figures represent the number of inmates prior to the passage of California's Three Strikes Law. As stated earlier, Three Strikes legislation has been offered as a potential alternative to capital punishment, or at least the ultimate deterrent short of the death penalty. However, the figures speak for themselves: In 1980, California's prisons held 23,511 individuals. In 2000, this same prison system accounted for an astonishing 162,000 persons. Similarly, since the passage of the Three Strikes Law in 1994, more than three thousand six hundred Californians have been handed sentences of twenty-five years to life for petty and nonviolent offenses.

Clearly, both capital punishment, and its lesser cousin, life imprisonment and Three Strikes legislation, represent more an attitude of eliminating individual offenders as opposed to doing anything substantial in so far as the actual prevention of crime. The danger in such thinking is clear. Public impressions of crime, and of violent crime in particular, are so potent, and so nightmarish that the majority of public-spirited citizens are willing to lump together any and all offenders so long as those whom they truly fear are punished appropriately and kept out of society. A similar attitude can be seen creeping into public policy decisions even now, in the aftermath of September 11th. Any suspect individual - no matter how unfounded or petty the reasons for his being suspected might be - is deemed worthy of the same sort of strict detention and denial of rights that, in the past, would ordinarily have been meted out only to persons presenting a genuine and imminent threat. Otherwise level-headed citizens clamor for sweeping changes in the way America handles its judicial systems. A scared public sits by and watches as its Attorney General assumes the personal power to hold other human beings indefinitely and without charge, simply because they might be up to no good, or they might possibly have information that would be of use to the government and to law enforcement. Terrified, literally, we incarcerate, and worse still, execute, those we think might be a danger to us now, or at some time in the future. No matter that these unfortunates get mixed up with the real bad apples, the only important thing is that the good, upstanding citizens are protected. Certainly, there is a certain logic to such an argument. After all, prevention is increasingly a goal of medicine as well. But, when we reach the point where we are permanently detaining our fellow human beings for trivial offenses, and even worse, on the mere suspicion of an offense, we are crossing a very real line between safety, and human and civil rights. As the old story goes, "First they came for the Jews...and then for the Catholics...and then when there was no one else left...they came for me. When we begin to treat justice as a game; a game in which we exclude those we deem incapable of contributing positively to the team, we commit a potentially grave error. Segregate the league, decide beforehand who gets to step up to the plate, and it's a whole new ballgame.