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It’s time to rethink ‘three strikes’ and similar laws

When I was a graduate student in Berkeley, Calif., in the early to mid-1990s, a particularly heinous crime riveted the San Francisco Bay area and ultimately the nation. The victim in this case was a 12-year-old girl, Polly Klaas, who was abducted at knifepoint from a slumber party in her mother’s home by a career criminal named Richard Allen Davis. The well-organized search for Polly ended a little over two months after her abduction when Polly’s decomposed body was discovered in a shallow grave not very far from her home in Petaluma.
It is fair to say that this crime was the single most important factor in generating broad voter support in California for stringent "three strikes and you’re out" laws whose aim is to put habitual offenders away in prison for life. Since the three strikes law in California was enacted in 1994, many other states also have adopted their own versions of such laws. By passing and/or supporting such laws, politicians and law enforcement officials certainly give the impression of being tough on crime. However, such impressions alone ought not to be the basis for sound public policy against crime. What is needed is reasoned inquiry to tell us whether the benefits from such laws justify the costs.
Consider two cases. The first involves Norman Williams in California. The New York Times points out that Williams’ first "strike" occurred in 1982 when he bungled the burglary of an apartment that was being fumigated. His second strike came in 1992 when he stole two hand drills and some other tools from an art studio. Therefore, in 1997, when Williams stole a floor jack from a tow truck, he effectively struck out and was sentenced to life in prison.
The second case concerns Timothy Jackson in Louisiana. The Economist notes that by the mid-1990s, Jackson already had two previous convictions for stealing from cars and one juvenile conviction for robbery. Hence, when Jackson stole a jacket from a store in New Orleans in 1996, under Louisiana’s "four-strikes" law, the judge involved had no choice but to sentence him to life in prison with no chance of parole.
In both cases, the individuals involved were locked away for non-violent offenses. Given the zeal of some states in locking up even non-violent three-strikes offenders for life, it is no surprise that our prison population has swelled significantly in the last two decades. Some studies show that the cost of implementing the three-strikes law in California since 1994 has been at least $4.8 billion and possibly as high as $20 billion. Viewed against this background, it is difficult to come to terms with the triviality of some third strikes that can result in life without parole. Depending on a person’s prior background, an offense such as shoplifting, cashing a stolen check, siphoning gas from a truck or threatening a police officer while handcuffed can put him or her away for life without parole.
In addition to costs and the relative insignificance of some third strikes, there also is the issue of legal challenges to three-strikes and similar laws. For instance, New York’s "persistent offender statute" directed trial judges to ascertain whether longer sentences were called for in the case of defendants with three or more felony convictions. In 2010, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan ruled that a key provision of the statute was unconstitutional because the longer prison terms for repeat offenders were based on findings by judges and not juries.
There is no gainsaying the fact that some criminals, particularly the violent ones, ought to be locked up for long periods of time. Even so, existing studies do not reveal an unequivocal, causal connection between three-strikes laws and crime reduction. As a society, we need to ask ourselves whether we truly benefit by keeping petty thieves in cells until they die of old age. In this regard, what is certain is that the cost of doing so is staggering: A year behind bars, according to the Economist, can cost more than tuition at Harvard. What is uncertain is whether there are any benefits to such draconian actions.

Amitrajeet A. Batabyal is the Arthur J. Gosnell professor of economics at Rochester Institute of Technology, but these views are his own.

1/3/14 (c) 2013 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email rbj@rbj.net.


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