Two years after it was signed into law, California's controversial "three strikes and you're out" law has resulted in an imprisonment rate for African Americans that is more than 13 times that of whites, according to a new study.
That disparity, according to the nonprofit Center on Juvenile and Criminal Justice, means that blacks made up 43% of about 1,200 "third strike" defendants imprisoned under the law as of Dec. 31, 1995. The state Department of Corrections previously reported that 37% of the almost 16,000 defendants imprisoned under the law for "second strike" or "third strike" offenses are African American.
The study adds to a similar report released by the same center last month that found that 39% of the state's young African American men were somewhere in the criminal justice system.
The "three strikes" study does not include data about the criminal backgrounds of inmates of various racial groups or the nature of their crimes. But a recent analysis by the Department of Corrections found that 85% of all inmates incarcerated under the new law were found guilty of nonviolent offenses in their second or third convictions. A co-author of the new study said there was no scientific basis to conclude that the disparity between blacks and other groups in the application of "three strikes" stems from a significantly higher rate of violent crimes committed by African Americans.
"If one were writing a law to deliberately target blacks, one could scarcely have done it more effectively than 'three strikes,' " said Vincent Schiraldi, executive director of the liberal-leaning center, which is based in San Francisco. "It can truly be said that 'three strikes' is California's apartheid."
Elliott Currie, a criminologist and lecturer in legal studies at UC Berkeley, said the study does not resolve the nagging question about the source of racial disparity in the criminal justice system--namely, are people of different ethnic groups, with similar criminal histories, receiving the same punishment for the same crimes?
Even so, Currie said, the study does suggest some disparity in the application of "three strikes" if for no other reason than the state's own numbers show the vast majority of people sentenced under the law are convicted of nonviolent offenses--where prosecutors have the greatest latitude in deciding whether to try a crime as a felony or misdemeanor.
"The fact that our 'three strikes' law heavily targets property offenders means . . . it opens up the process to a lot more discretion in the charging and sentencing [of suspects]. And therefore [it] opens the process to real racial discrimination," Currie said.
A spokesman for state Atty. Gen. Dan Lungren said the state's chief prosecutor had not seen the report and would not comment on its conclusions until he does.
But Greg Totten, executive director of the California District Attorneys Assn., criticized the study as being flawed and said the state's 2,400 prosecuting attorneys consider the law a useful tool in sending away the most violent offenders, who often have long criminal histories even if their "second strike" or "third strike" offenses are not violent.
Under the law, aimed at punishing repeat criminals with the harshest of sentences, criminal defendants who have already been convicted of two felonies face the possibility of life in prison if they are convicted of a third. The same law doubles prison terms for second-time felony offenders, who make up the majority of the estimated 15,839 inmates swelling the state's prison population.
Last month, the center released a study showing that 39% of the state's African American men in their 20s were imprisoned, in jail or on probation. By comparison, the rate was about one in 10 for young Latino males and one in 20 for white men.
The new study found similar disparity in the application of the "three strikes" law--a disparity it blames on racial bias.
Noting that blacks make up only 7% of the state's population, the study found that they account for 20% of felony arrests, 31% of the prison population and 43% of "third strike" defendants sent to state prison. By contrast, the study said, whites make up 53% of the population, 33% of felony arrests, 29.5% of all state prisoners and 24.6% of "third strike" inmates.
"Put another way," the study says, "African Americans are being arrested for felonies at 4.7 times the rate of whites; being incarcerated at 7.8 times the rate of whites, and being imprisoned for a 'third strike' at 13.3 times the rate of whites."
At the heart of the disparity in the application of "three strikes," the study says, is the underrepresentation of African American prosecutors, since the law gives district attorneys discretion on which defendants, and what types of crimes, are pursued.
The study notes that a recent report by the state Department of Corrections showed that 70% of all "three strike" inmates are sentenced in five counties--Los Angeles, Orange, San Diego, San Bernardino and Sacramento.
But based on information received from those district attorneys, the study says, 82 of 1,586 prosecutors in those offices--or 5%--are African Americans. The study says 82% are white and 8% are Latino.
Moreover, the study says, in Los Angeles, San Diego and Sacramento counties, more than 90% of the supervisory prosecutors are white, while 5% are Latino and 2% are black. Those counties, the study says, account for more than 50% of the "two strike" and "three strike" inmates in California.
But Totten of the district attorneys association took issue with the study's assumptions and conclusions.
"Prosecutors are ethically bound to be colorblind in making decisions on filing cases. So we strongly disagree with the . . . report," Totten said. "And we feel . . . like so many reports that come out of this group, they focus exclusively upon the defendants" and not the victims of crimes.
"Prosecuting these cases, we know a great number of the victims are minorities," Totten said. "So it is completely disingenuous on their part to suggest some kind of bias. . . . They should know better."