3 Strikes and You’re Where? : Be Careful How You Do This

California’s last major reform of criminal sentencing laws, in 1977, imposed determinant sentencing--meaning longer and more inflexible prison terms. Soon afterward, a Pacific Law Journal article, with remarkable prescience, warned: “The new law does not address the question of how to handle the prisoner who has completed his determinant sentence but ... is likely to injure seriously another victim upon release. ... One can predict public outrage over ... clearly violent people mechanically released and claiming new victims. This is the sort of pressure legislators are unlikely to overlook.”

Enter Richard Allen Davis, one of those “clearly violent people.” Davis, with a rap sheet 11 pages long, is the alleged murderer of 12-year-old Polly Klaas, abducted from her Petaluma home last fall. Davis’ arrest and the discovery of the child’s body indeed have created the sort of pressure that legislators, in Sacramento and in Washington, cannot ignore.

Five bills that would impose life sentences on repeat felons already have passed the state Assembly this session; Senate approval is expected to be equally swift, and Gov. Pete Wilson vows to sign whichever bills reach his desk. Also, an initiative imposing life prison terms on three-time felons will be on the state ballot in November. Washington state already has a similar law on the books, and about 30 states are considering such legislation; in his State of the Union address last month, President Clinton endorsed a federal version of “three strikes and you’re out.” The emotional appeal of these proposals is undeniable and the momentum behind them overwhelming.

But would they work? Would the California proposals make the state safer? How much would California taxpayers have to pay for them?

So sudden has been their ascendancy and so visceral their appeal that serious analysis of the implications of these proposals has only begun. But this much is already clear: To be End made to work, any of the “three strike” proposals would require painful trade-offs and probably sharply increased expenditures. Even then, such a law would be only one facet of statewide crime control, not “the answer” to escalating crime.

A small percentage of offenders historically have committed a disproportionate share of crime. The theory behind the three-strikes proposals, then, is that by locking up those criminals whose behavior marks them as incorrigible, crime would decline. Simple idea, but far more complicated in practice.

California law defines a wide range of crimes as felonies. Many of these crimes obviously involve murder, rape and other forms of violence, but many, such as burglaries or offering cocaine to a minor, often do not. Which felonies do we care deeply about? All or just the violent ones?

Because of their broad definition of a “strike,” the “three strikes” ballot initiative and at least one of the legislative proposals could incarcerate for life three-time felons who have not committed any violent crimes. As a result, a large influx into already overcrowded state prisons of nonviolent felons newly sentenced to life terms could, in effect, require imprudent early release of violent criminals serving time under existing, more lenient laws.

Certainly those who commit nonviolent felonies must be punished, but incarcerated for life? That does not seem a good use of scarce public dollars and prison space. It is far more appropriate, in our view, to tie life imprisonment to conviction for a third violent felony. Indeed, The Times would endorse such a targeted legislative approach.

Do we have room to incarcerate all three-time violent felons for life? Not without either a major expansion of the state’s already Gargantuan corrections system or other dramatic changes in the guidelines for whom we incarcerate and for how long.

Although California ranks 17th among states in its rate of imprisonment, the state houses more prisoners than any other--120,000. Growth of the prison population has outpaced growth in the number of people served in other state programs, such as K-12 education or welfare. Spending for corrections has increased as well, 14% annually over the last decade, while total state spending grew by 7% per year. Yet despite the increased spending, we can’t keep up with the number of felons. The prison population has more than doubled in the last 10 years and should reach 171,000 inmates by 1999. At that time, despite the state’s massive prison construction program, the prison population will be about 202% of capacity, much worse than it is now.

Obviously, the Legislature is under enormous pressure to “do something” about violent crime in California. As we have seen, “Three strikes and you’re in prison for life” is not exactly a new idea. But as the public’s frustration with the state’s existing and inadequate efforts to control crime reaches the boiling point, “three strikes” looks like a quick and easy fix. The Legislature will act. But to be effective it must act carefully and with an understanding of how this policy would work in practice--on the street, in courtrooms and in the state’s prisons.

Monday: What should we do to control violent crime?