December 7, 2002

Three Strikes: Bad Cases Make Bad Law

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When former governor Pete Wilson signed California’s three strikes law, he compared the construction of new prisons which would be required to house the increased inmate population to building the University of California system: “We’re producing … capital improvements for future generations, and they rightly can be called upon to help pay for it.”

Following the tragic murder of Polly Klaas by two-time felon Richard Allen Davis, California voters and the legislature enacted the “three strikes and you’re out” law in 1994. It requires a sentence of 25-years-to-life in prison when a defendant commits a third felony (“three strikes”), and a doubling of the sentence after the commission of a second felony (“two strikes”). Although the law was supposed to deter violent crime, it has had no significant effect on the reduction of crime in California. It has actually increased the number and severity of sentences for non-violent offenses, and has contributed to the aging of the prison population, at considerable cost to California’s taxpayers.

The most recent study, “Aging Behind Bars: ‘Three Strikes’ Seven Years Later” by Ryan S. King and Marc Mauer of the non-profit Washington-based Sentencing Project confirms prior studies which dispel the myth that the law has led to a drop in California’s crime rate. Since the beginning of the 1990s, crime has been on a steady downturn both in California and nationwide. But criminologists attribute this to an improved economy, changes in drug markets, demographic changes and strategic policing.

Moreover, in June of this year, the FBI announced a 2 percent upswing in serious crime nationwide, with a 6 percent increase in California. This is not surprising, as a recent article published in the Journal of Legal Studies documented studies in 24 states, which found three strikes laws associated with 10 to 12 percent more homicides in the short run and 23 to 29 percent more in the long run.

Most of the three strikes convictions in California are for non-violent crimes, according to the California Department of Corrections. It reported that 57.9% of third strike cases and 69% of second strike cases are for property, drug or other non-violent offenses. Indeed, the skewed use of the law has caused Polly’s brother, Marc Klaas, to conclude the three strikes law is not working as anticipated: “In the depth of despair which all Californians shared with my family immediately following Polly’s murder, we blindly supported the [three strikes] initiative in the mistaken belief that it dealt only with violent crimes. Instead, three of the four crimes it addresses are not violent.”

The U.S. Ninth Circuit Court of Appeals is also concerned about the severity of sentences for minor offenses under California’s three strikes law. In Andrade v. Attorney General, the court struck down a sentence of 50-years-to-life as cruel and unusual punishment, where Andrade’s third and fourth strikes were petty thefts of nine videotapes from K-Mart.

The Ninth Circuit also overturned 25-years-to-life sentences in Brown v. Mayle and Bray v. Ylst, where the third strikes were petty thefts. The United States Supreme Court has granted certiorari in Andrade, which has been set for argument in tandem with Ewing v. California. In Ewing, the Court of Appeal upheld a 25-years-to-life sentence where the third strike arose from the theft of three golf clubs.

California’s three strikes law is singular in the country in permitting misdemeanor conduct both to enhance a petty theft to a felony, and to constitute a third strike which triggers a life sentence, an anomaly the Andrade court decried as a “unique quirk” in the California law. The Ninth Circuit was also concerned about other features of California’s three strikes law that “combine to make it particularly severe,” including: (1) a defendant may be considered to have two prior strikes even though he was convicted of both in a single judicial proceeding; (2) prior strikes need not be violent, as long as they qualify as “serious”; (3) serious or violent felony convictions imposed prior to the law’s enactment in 1994, foreign convictions, and juvenile true findings can be charged as strikes; (4) there is no “washout” period after which prior qualifying convictions will no longer be counted as strikes; (5) defendants with prior strikes who are convicted of current multiple felonies committed on different occasions must serve consecutive sentences; and (6) a defendant sentenced under the three strikes law cannot have his term reduced by credit for good time or work time. Andrade must serve a minimum of 50 years in prison before he is eligible for parole. He will be 87 years old.

The three strikes law also targets older people who had serious criminal problems much earlier in life, reformed in their later years, but committed a minor offense which counts as a third strike. Crime rates peak in the late teens or early twenties for most offenses, and decline rapidly after that. A law designed to reduce crime should thus be aimed at younger offenders. But the Sentencing Project found that in the first five years of the implementation of California’s three strikes law, the proportion of new felony prison admissions above age 40 increased from 15.3 percent in 1994 to 23.1 % in 1999, while there has been a consistent decline in admissions for age groups between 20 and 35 years of age. King and Mauer project that 83 percent of three strikes prisoners by the year 2026 will be forty years or older.

It costs $25,607 to incarcerate an inmate in California. At the current intake rate of 1,200 three strikes cases per year, approximately 30,000 inmates will be serving sentences of 25-years-to-life by the year 2026. King and Mauer estimate the cost of maintaining these prisoners at $750 million annually. Moreover, it will cost $1.5 million to incarcerate an elderly prisoner for the minimum 25 years, because he will generally require greater expenditures for health care.

Higher court costs have also ensued from the three strikes law. Whereas more than 90 percent of all criminal cases used to be resolved by pleas, now many second and third strike candidates are demanding trials because of the lengthy prison terms they face.

California’s three strikes law has exacerbated racial disparities in the prison system. African-Americans have higher arrest rates due in part to racial profiling, and consequently have higher rates of prior convictions. Although African-Americans constitute 20 percent of felony defendants, they comprise 43 percent of offenders sentenced under the three strikes law.

Six years after the enactment of the three strikes law, California’s legislature passed a bill calling for a thorough review of the law. But Democratic Governor Gray Davis, fearing a voter backlash if he appeared soft on crime, vetoed the bill.

Although 93 percent of people surveyed in California support mandatory sentences for those convicted of three violent, serious felonies, only 65 percent support this sentencing scheme for three serious drug violations, only 46 percent support it for serious property crimes, and just 13 percent support three strikes for less serious property offenses.

Indeed, Proposition 36, the “Substance Abuse and Crime Prevention Act” was approved by 61 percent of California voters in November 2000, and took effect July 1, 2001. Proposition 36 has been diverting low-level, non-violent offenders convicted solely of possession of drugs for personal use into community-based treatment programs instead of incarceration. Early indications suggest that the law has been fulfilling its promise to reduce drug addiction and crime rates, and save California taxpayers millions of dollars by reducing the jail and prison population.

Forty states have habitual criminal statutes, and 26 of them have a three-strikes provision. But only California mandates the imposition of 25-years-to-life for a third felony, whether or not serious or violent. There have been attempts in both the legislature and the citizenry to amend the three strikes law, by voter initiative, to require the third felony be a serious or violent one. AB 1790 passed the Assembly Public Safety Committee and is currently pending in the Assembly Committee on Appropriations. And the Citizens Against Violent Crime, chaired by Polly Klaas’s grandfather Joe, have been collecting signatures for a similar initiative.

What is the face of three strikes? It’s the face of Freddie, who walked into Sears one day and stole a $99.99 pair of binoculars. Freddie had suffered two robbery convictions 14 years before. As he was 51 when he committed this “third strike,” Freddie will be 76 when he’s eligible for parole. The California Court of Appeal rejected my argument that Freddie’s sentence violated the Eighth Amendment’s ban on cruel and unusual punishment.

In Andrade, the Supreme Court has an opportunity to eliminate petty thefts as eligible offenses for third strike treatment. The voters can amend the law to forbid non-violent and drug-related offenses from constituting third strikes. But we must explore alternatives to the draconian prison sentences established as political responses to a climate of fear. Until we devise more effective rehabilitation programs, such as Proposition 36, people like Freddie will spend the rest of their lives in prison, at a considerable cost to our society.