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Recently, one of the most popular proposals in the effort to get tough on crime has been the "three-strikes-and-you're-out" proposal. This law, which is already in effect in Washington state and California, requires that offenders convicted of three violent crimes be sentenced to life in prison without parole. This proposal has received broad-based support from federal and state politicians including President Bill Clinton, Senator Bob Dole, and Governor Mario Cuomo. The law is based on the idea that the majority of felonies are committed by 6% of "hard core" criminals, and that crime can be reduced by getting these criminals off the streets. Unfortunately, the proposal fails to take into account several major flaws in the law and its implementation.
The first problem the proposal is its principle of removing judicial discretion, severely hindering a judge's ability to make the punishment fit the crime. One man in Washington is faced with life in prison if convicted of his third felony: stealing $120 from a sandwich shop by putting his finger in his pocket and pretending to have a gun. His prior two convictions were for similar crimes. While it is certainly true that some incorrigible felons deserve life in prison, it is patently unfair to create a sweeping standard that would force the courts to sentence offenders to life imprisonment for relatively minor crimes. The three-strikes law gives a judge no discretion in cases like that of the Washington man, or Michael.
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Even for more serious crimes, removing all discretion from sentencing denies many prisoners the chance to turn their lives around. Mimi Silbert, president of the Delancey Street Foundation, a half- way home for prisoners, tells the story of Albert. Albert was sent to San Quentin Prison at age 19; by then he had committed 27 armed robberies. Under three-strikes-and-you're-out, he would still be in prison. Instead, he was released; at age 36, he cares for his children, works as a plumber and a substitute teacher, and has led a drug-free, crime-free life. A three-strikes law would deny this chance to Albert and to many others like him. Felons are capable of reform, but this law would deny them that chance. In 23 years, the Delancey Street Foundation has helped more than 10,000 felons turn their lives around and become happy, productive citizens. The cost of three-strikes not only includes the expense of keeping these felons in prison for life, it also deprives society of the contribution made by people like Albert.
The assumption that all three-time offenders are incorrigible criminals who can never hope to become law-abiding citizens is a gross oversimplification of a complex problem. Three-strikes is based on this assumption that a few extreme cases are representative of all criminals, and is therefore divorced from reality. Mimi Silbert points out that "Our justice system works in extremes. Either we excuse the criminal...or we give up on him, lock him up, and throw away the key. As with any extremes, these work only for a few."
Three-strikes also has serious constitutional problems. The most obvious constitutional objection is that the policy is a form a cruel and unusual punishment, especially when applied to the young for relatively minor offenses. Under the policy, someone like Albert would face life in prison at age seventeen; life imprisonment for a seventeen-year-old seems cruel and unusual by most standards, making three-strikes-and-you're-out unconstitutional. Closely linked to this is the constitutional principle of proportionality_that the punishment should not be more than is merited by the crime. A penalty of life imprisonment for the Washington man who stole $120 by pretending to have a weapon is definitely more than the crime merits. By requiring it, the law contravenes a basic judicial principle. An equally serious constitutional problem is that three-strikes violates the principle of punishment for specific offenses. Under American law, the government can only punish criminals for specific crimes they commit. Three-strikes, on the other hand, does not punish for a specific crime but instead establishes an arbitrary standard that judges the person, not the crime, to be immoral. It does not punish a criminal for a specific offense, but instead punishes that person for general past behavior. The final constitutional difficulty with the plan is that it violates separation of powers within the judicial system by putting sentencing jurisdiction in the hands of the prosecutor rather that the judge. A prosecutor decides whether to try someone for a three-strike felony or for a lesser charge, and thus the prosecutor makes the decision as to the penalty should the person be convicted. The prosecutor assumes the role of judge, which is blatantly unfair to the accused and destroys the impartiality of the system. The prosecutor has a conflict of interest, since his or her career depends on the conviction and punishment of offenders. This gives the prosecutor a motive to ask for a more serious punishment than the crime merits, and so it violates the separation of powers.
Proponents of three-strikes also claim that it is racially neutral, since is provides one sentence for all offenders. Unfortunately, evidence suggests that the opposite is true. In the case of mandatory drug sentences, between 1986 and 1991 arrests of minority adults rose 57%; arrests of white adults rose 6%. Blacks are more likely to be arrested and convicted for the same crime than whites. This makes them more likely to receive harsher sentences.
Three-strikes would also worsen prison conditions throughout the system. In an attempt to save money, states and the federal government are already delaying or avoiding the construction of the prison facilities as a result of a nationwide budget-crunch. Prison conditions and overcrowding are a serious problem in many states, and mandatory sentencing laws only add to that problem. As former judge Lois Forer notes "Mandatory sentencing laws are one of the principal causes of prison overcrowding. Drug laws offer a telling example of this failed practice....The number of adults in prison for drug offenses rose by 237% [from 1986 to 1990]...."
Overcrowding and decline in prison conditions cause concern not only for human rights, but also for practical control of prisons. Here in New Jersey, Lieutenant August of Rahway State Prison gives one example. The prison once had a building set aside for job training, auto shop, and similar activities. These facilities were vital to control of the prison population: time in the shop was given as a reward for good behavior and its withdrawal was a threat to keep prisoners in line. As a result of the massive influx of new prisoners, prison officials converted the building into a dormitory and the prison no longer has job training facilities. Lt. August feels that this situation is dangerous, since the prison officials no longer have a goad to keep prisoners in line. Across the country, the conversion of prisons from rehabilitative to penal facilities has created a serious risk of prison riots and unrest in response to declining prison conditions.
Another serious problem, which has been almost ignored by the media, is the cost of housing all of these felons. A conservative estimate of the law's effects concludes that, in New York State, a three-strikes law would imprison approximately 300 felons each year. The cost in the short term would be small, but in twenty years there would be 6,000 or more prisoners who might otherwise have been released. The approximate cost of 35 years' imprisonment is $1 million for each prisoner. This means a cost of $6 billion dollars in New York State alone if the law is implemented. The cost would probably be far greater than this. Many prisoners would stay in prison more than 35 years, and because the figure does not take into account the cost of constructing additional prisons.
A more severe estimate predicts that, in California, the law (which was passed in late 1993) will multiply the prison population by 150% over a five-year period. This would require the construction of many new prisons, at a cost of several billion dollars each. According to one California prison official, the influx of prisoners would swamp a system completely unprepared to deal with them. The emergency measures needed to house the prisoners as fast as they come in would greatly increase the cost.
The costs will continue to rise in the long term, because the prison population will continue to age and require more money to support. A 20 year-old sent to prison for life today can be expected to remain there until the year 2050. As more three-strikes prisoners are added, the prison population will continue to age. This will mean increased medical costs as our prisons are turned into geriatric institutions. Since none of these prisoners can be released, the problem will continue to mount as we add prisoners far faster than those already in prison die of old age. The costs of building new prisons will be immediate, but the cost of caring for an aging prison population will be passed on to the next generation. The cost of these additional prisons, the staff necessary to run them, and the cost of supporting incarcerated prisoners would require a huge tax increase, an anathema to conservative supporters of the law.
Proponents of three-strikes claim that the increase in prison costs would be offset by the decrease in social costs from crime. Specifically, they point to a study by Edwin Zedlewski which found that, although prison costs are high, the social cost of crimes committed by a felon who is released are still higher; thus, Zedlewski argues, it pays to put more people in prison because we actually save money by reducing crime.
More careful studies than Zedlewski's, however, cast doubt on this assertion. They find that Zedlewski fails to take into account factors such as the cost of supporting the children of those imprisoned. These studies conclude that, on a monetary basis, it is impossible to determine whether three-strikes will save us money. However, there is no question in any of the studies that three-strikes, even if it created a net savings, would require a tax increase to finance the additional prison costs. This is more "big government" of the type abhorred by conservative critics who want to "get tough on crime."
Perhaps the greatest problem with three-strikes is that it is an ineffective solution proposed to make politicians look good rather than to deal with the problem. The government policy of sending more people to prison and increasing sentences has been a complete failure in reducing crime. "'Three strikes and you're out'," writes Robert Gangi, Executive Director of the Correctional Association of New York, "represents extension of a policy that has proved a failure: prison expansion. Since 1973, New York's prison population has grown more than 500%, from 12,500 inmates to 64,500 today. But can anyone argue that the streets are safer, or that drug abuse and violence are less a threat to the quality of our lives." Conservative politicians claim that crime can be reduced by tougher sentences and more prisons. In fact, these measures have been tried in the past decade, but they have had no noticeable effect on crime. More prisons has never been an effective solution to the crime problem, and three-strikes is another attempt to implement an idea that historically has not worked. After its implementation, neither California nor Washington saw any drop in crime rates. Both however, saw the beginnings of a multi-billion dollar price tag.
A particularly foolish aspect of three-strikes is that it will cause prisoners to remain in jail far beyond the age at which they are likely to commit crimes. Less than 5% of crimes are committed by persons over the age of 60. The three-strikes law would require that the public pay for the upkeep of sexagenarians who, if released, would represent little to no danger to the population. By disallowing parole, especially for the aged, the law adds a tremendous expense while creating almost no benefit.
There are also many alternatives to three-strikes that are more likely to work and that cost less money. Community based programs for youthful offenders tend to be more effective than prison. A study of 700 young offenders in California found that those placed in community treatment committed crimes again in 28% of cases, while those placed in prison committed further crime in 52% of cases. Although there is considerable disagreement about the effectiveness of alternatives to prison as a method of crime control, there is no evidence whatsoever that increased sentences reduce crime. It is foolish to reject a strategy that might work in favor of one that is a proven failure.
Programs that target at-risk youth and attempt to reduce the chances of their committing crimes have proven fairly effective. One program in Baltimore, Maryland involves college students who work daily with a small group of "problem" youths over a two month period. After completing the program, none of the youths were convicted of any crime for at least 6 months. A three-strikes law means reduced availability of funds for programs such as this. Robert Gangi notes that "less money would be available to support measures that actually stand a chance at reducing crime, ranging from drug rehabilitation and community policing to economic development programs." Unfortunately, programs like those Gangi describes have been attacked as "social pork" by conservative legislators who call them soft on crime. As an alternative to these crime policies of proven effectiveness, the American people have been handed a baseball slogan.
Politicians are continually seeking to impress the public, and with crime as one of the most important issues in the American consciousness, few politicians are willing to risk appearing soft on crime. Real solutions, however, will not be found by pandering to public indignation at crime. Senator James Fulbright reminds us that "We must dare to think 'unthinkable thoughts.' We must learn to explore all the options and possibilities that confront us in a complex and rapidly changing world. We must learn to welcome and not to fear the voices of dissent. We must dare to think 'unthinkable' things because when things become unthinkable, thinking stops and action becomes mindless." Three-strikes is a mindless response to a complex problem, another implementation of a failed policy. Real progress will require new ideas, not more of the same. Perhaps it's time that our politicians stopped worrying so much about getting tough on crime, and started worrying about getting smart on crime.