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...

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…