Laws That Have Been Changed

¶ … laws that have been changed over the last twenty or so years to reflect a "tough on crime" mentality in both the climate and culture of society and in the climate and culture of the political. The California Three Strikes Law in short is a culmination of a tough on crime mentality in both the political and cultural sentiment of our nation. The law is a concrete demand for a sentimental ideation that the U.S. needs tougher sentencing and the reduction of discretion with regard to criminal violations. The law itself demands that individuals convicted of a serious crime then have two additional "chances" before they are given a minimum mandatory sentence of 25 years to life. The California law, which 22 states have some form of, is by far the most severe. As Freedberg states; "The first two strikes have to be serious or violent felonies, but, unlike in any other state, the third strike can be any of some 500 felonies, even so-called "wobblers," which can be prosecuted as misdemeanors. Regardless of whether the third strike is stealing a $199 VCR or a brutal rape, offenders receive a mandatory 25-year-to-life sentence." (2004, p. 7) Yet, this policy and law demonstrates a broader movement that has ultimately and severely challenged the prison systems in the U.S., with very little outward gains, other than having more people in prison. The "tough on crime sentimentality overtook the criminal justice system and has created a nearly intractable level of overcrowding, even more limited resources for rehabilitative services and dangerous and often violent social conditions within prisons due in large part to the fact that there are simply to many people there (Smith, 2007). How this plays out in prison overcrowding is that currently reforms are under way because these policies have resulted in significant increases in prison populations and in the wake of a serious financial crisis many voters are beginning to look at reforming the laws, and voting in support of doing so. According to Freedberg, in California the, "bloated correctional system and its 163,000 inmates. The average expense to house an inmate in a California prison is $31,000 a year. For a third-striker serving a life sentence, that comes to an average minimum cost of $750,000 per inmate. Those costs will rise significantly as the three-strikes population ages." (p. 7) Lesser offences are considered strikes, after the first two violent crime convictions which means that an individual who has ever been convicted of a serious crime can then violate the law in very minor ways and have the result of a 25 to life sentence.

The result of the legislation, as well as the national sentimental stance on tougher sentencing and tough on crime mentalities has led to unprecedented growth in the prison population which in and of itself does not deter crime but may in fact encourage it. Overcrowding in prisons was already a problem before laws such as California's and other states were passed but now overcrowding is such a problem that alternatives must be sought or the U.S. will continue to spend disproportionate amounts of resources housing individuals in inhumane conditions without rehabilitative services, a situation that is clearly not sustainable economically or culturally. 1 the need to address prison overcrowding either through building more prisons or offering policy change that reduces the number of prisoners going to prison.

This work will look at several issues surrounding the broader view of prison overcrowding in the U.S. As well as specifically at the policy of the Three Strikes law in California and in so doing it will discuss both practical and theoretical issues surrounding the problems and solutions associated with reform. It will look at the need to allocate precious public resources to prison housing, the need to address prison rehabilitative services to make it so when people leave prison they are not predisposed to recidivism by a whole list of cultural issues including but not limited to: prison culture that breeds crime, institutional discrimination, return to social structures that offer them little beyond criminal behavior as legitimate ways to earn a living. Most importantly the work will review the Three Strikes policy and build a case for its outcomes, some positive but mostly negative as they impact prison overcrowding.

The work will conclude with a discussion and recommendations that will analyze if the laws like the California Three Strikes law has deterred crime or resulted in a safer society as was its intention. The conclusion of early review of the data and literature on this type of policy demonstrate that not only has have these laws possibly made the situation of prison overcrowding worse but it has created in society a drive to find a more rational and sustainable stance on crime and corrections. Aligned with several experts noted in the work, the conclusion and recommendations will surround the need to curb prison overcrowding with alternative sentencing or alternative prison housing options (Blodget, 1987) (Schuck, 2010) (Katel, 2011) (Benefiled, 2007), repeal of "tough on crime" laws or serious reformation of them to reduce new entrants into the prison system and restore some semblance of sustainability (Vitiello, 1997) (Freedberg, 2004), possible reassessment of current serving criminal cases and their sentencing solutions. Most importantly redistribution of resources to fund rehabilitative services rather than more prisons to truly reduce recidivism and attempt to allow inmates reintegration through means that support limitations in future crime involvement rather than supporting limited choices that often force the criminal back into a life of crime (Clark, 1994) (Smith, 2007) ("Prison Nation," 2009) ("5 State Survey," 2010) (Lagos, 2010) (Jacobson, 2005) (Greene, 2004) (Gordon, 2010) (Clark, 1994). In short the resolution for overcrowding in U.S. prison systems is clearly a multifaceted issue and will need multi-variant solutions and changes, the two main changes will need to be reducing new entrant numbers and seeking reductions in current numbers of inmates. Causes of prison overcrowding are many and include tougher sentencing, greater street level discretion (Murakawa & Beckett, 2010, p. 706) to create such a scenario four possible solutions need to be proposed and enforced; Alternative 1 repealing and/or rewriting "tough on crime" laws in all states and making changes retroactive, Alternative 2 further over-reliance on plea deals and bargaining for new offenders, Alternative 3 alternative sentencing for new offenders, Alternative 4 building more prisons.

This work will look at the most complicated of these four possible solutions, repealing and/or changing the "tough on crime" laws that have created the problem and making those changes retroactive. The reason this response or solution is the best of all possible solutions is because it attacks the problem from both angles, seeking to decrease new entrants and allow many who are currently serving the opportunity for release upon review of cases.

Alternative Scan

Political Feasibility

Financial

Feasibility

Effectiveness / Equity

Administrative Feasibility

Major Advantages and Disadvantages

Alternative 1

Likely to be accepted but would require legislative and voter response and buy in Very costly but will be offset by long-term savings

Long-term and short-term effectiveness and equity would be seen but it would be effective and create equability in the long-term

Very resource intensive and may require additional support staff to implement

Attacks the problem from both existing and new entrant levels. Has long-term and short-term lasting effects. Very resource demanding

Alternative 2

Easily implemented as it supports the status quo

Relatively inexpensive as it reduces intake numbers but has many foundational ethical concerns

Is only marginally effective and equity achievement is to long-term

Resources to implement are already in place

Would not require major changes. Would not result in effective number reduction in short or long-term and support the status quo

Alternative 3

Would require marginal changes and development of alternative resources that could challenge communities and ideologies

Could be costly and only a temporary solution

Efficacy is unknown and equity would be reached in the very long-term as it does not respond to existing problem but only responds to new entrants

Very costly and likely to be wrought with the need for administrative growth

Responds to need to change how the community houses prisoners. Reduces new entrants into the system. Would require foundational change and support that is already limited and frustrated.

Alternative 4

Would not likely be supported politically or by the public

Extremely costly and unsustainable

Does not solve the core problem of why there are so many prisoners only continues to house them with marginal improvement in overcrowding issues

Very costly and requires major administrative growth

Responds to immediate need for more prison beds to reduce overcrowding. Is not sustainable or cost effective. Does not respond to the reasons that overcrowding exists.

Recommendation

Alternative 4 as a solution would involve many legal issues as well as foundational resources, which would likely be hard to come by but well worth the output as it would ultimately resolve the problem, to a large degree responding to both new entrant issues and current overcrowding issues over time. Written into the legal changes would be protocols for review of cases to re-determine parole eligibility in certain cases but especially those where the latter crimes were non-violent and relatively minor offences. Because of this review aspect the legal and physical changes of this alternative is the most effective in both the short-term and long-term, of dealing with prison overcrowding. This alternative was chosen, not because it is the least costly, as it will likely be one of the most costly solutions, but because it has the greatest possibility for making real change in the overcrowding problem and rebalancing the system to create sustainability in the future. The implementation of this change will begin with resources as reviewing many cases, will require thousands of man hours in and out of courtrooms and likely develop into a monumental task for already overburdened public prosecutors, defenders and judges. Changing the legal precedence will not likely be easy, especially reselling ideology to the public who will necessarily see the change as a reversal of a "bill of goods" they have been sold for decades, i.e. that the "tough on crime" response is the only real solution to criminal behaviors. Yet, in the long run this is the only feasible solution to the overcrowding problem as it attacks the problem with evidentiary evidence, supporting the experts who have in the last two to three decades been stripped of authority to make changes, as these changes were offered up to the political body of non-experts and the public based on election desires and unmitigated but unfounded social fear (Krajicek, 1998).

Conversely, the public is not poised to build more prison beds, in the wake of financial crisis, nor is it poised to see what many experts and laymen alike see as a failed trend to continue to be supported, lastly alternative sentencing is a limited option as it only deals with immediate entrant issues and will not have a long-term effect over those incarcerated today. The reality is that a return to rational, supported and sustainable sentencing is an absolute must, without question and the public, politicians and experts need to come to terms with the development of a sustainable prison system that actually serves the purpose of protecting society from crime while still allowing the public the ability to pay for it. The current system is so untenable, even if increases are ceased and the cost will continue to skyrocket, as the prisoners currently serving long or life sentences age and need further support to exist. The problem of overcrowding in the prison system is foundational to the fabric of our whole society and reasonable and far reaching responses need to be developed and implemented as without such a change the problem is likely to get even worse. Additionally, a solution (such as what is seen in Alternative 1) that offers a multi-directional attack on the overcrowding problem rooting out the causes and seeking solutions for the immediate issues is most likely to be effective in both the short-term, slowing new entrants into the system and the long-term reducing the incarceration rates as they stand.

The most important aspect of this solution is of course the review of existing cases, but again this cannot take place without legal precedent and legislative changes. This aspect will likely be the biggest hurdle as people both expert and lay will weigh in on heavily on such a foundational paradigm shift and look more closely at the overt and hidden costs associated with the change, something that should have been done when the "tough on crime" legalizations began in the first place, but there is a clear sense that responding to this self-induced problem is necessary and a more holistic and less emotive view should be welcomed by both the system and society.

Legal Issues

Due in large part to the many supporting laws that have been passed in the "tough on crime" era the legal issues on both the grand and individual scales will be vast and broad. On an individual level the review of existing case will likely only begin after broader legislative (mostly state level) changes are made. The results will likely not be felt for some time as incremental case review is an absolute must to ensure that the process is implemented safely and is afforded the right individual focus, i.e. The right type of case are reviewed, the litigants are properly supported and ultimately that society remains safe as these individuals (probably slowly at first) trickle back into society. It is clear that support for reduced recidivism i.e. rehabilitation services are scant and needs bolstering to offer parole, alternative living support and life skills opportunities to these individuals but ultimately the time will come when there will be failures in this system to and the legal system needs to have the ability to respond to these cases appropriately. New entrant issues will likely be the first the cases to effect overcrowding but it will not be the sweeping change that many politicians like to see, in part to rapidly ensure equity unless legal precedents are changed in a number of states and new incarceration declines rapidly through these changes. Care not to over-rely on plea bargaining will also have to be taken as this has been the traditional and historical manner in which the courts have been offered leniency with regard to alternative sentencing and real judge and attorney level decision making based on the actual case rather than mandated sentencing for higher crimes. The ethical and moral issues regarding plea bargaining as well as its effect on the criminal justice system must be considered at all costs, as to some degree the system can and does encourage incarceration over other alternatives and create as many problems as it solves (Appleman, 2010). This is not to say that plea bargaining will not be a reasonable and rational tool to reduce costs of a foundational change but it should be considered less often than simply reverting back to expert discretion with regard to prosecution and sentencing.