Hey! Maybe the Judges Can Judge!

Quite a week for crime and punishment in California. First came the performance of Richard Allen Davis. Found guilty Tuesday in the murder of Polly Klaas, Davis rose and mockingly extended the middle fingers of both hands. This is for all of you, Davis mouthed to the judge, the jury, the courtroom gallery. No argument ever made for a “three strikes” sentencing law could match this one for eloquence. With just two fingers, the man said it all.

Two days after Davis’ flippant salute, however, the state Supreme Court severely undercut “three strikes.” Trial judges, the court decided unanimously, are empowered under certain conditions to ignore mandatory sentences. To “three strikes” supporters, it must have felt like the justices had repeated Davis’ fingerwork.

Within minutes, state lawmakers had begun contemplating aloud how to rein in the court. The Republican Assembly leader discussed recall, forgetting perhaps that six of the seven justices were installed by Republican governors. Gov. Pete Wilson, who appointed three of the justices, spoke of new bills or ballot initiatives to undermine their judgment--and thus, by extension, his own.

Davis and “three strikes,” of course, did not share the public stage as strangers. The killing of Polly Klaas provided the political fire needed to bring the “three strikes” proposal to full boil. Perhaps less known, however, was the killer’s connection to earlier sentencing reforms. It’s a story that deserves retelling now--or whenever “reformers” start a-tinkering with the basics of crime and punishment.

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Twenty years ago, Davis was convicted of kidnap and assault and sent away to prison for one year to life. This was how things worked then. Parole officers decided when and if a prisoner was fit for freedom. Three times Davis was rejected for parole, amid warnings of his “accelerating potential for violence.” Then came the reformers.

From the political left, these indeterminate sentences were criticized as unfair. Parole boards were swayed by the race or economic status of convicts; wardens used them to bully prisoners. From the political right, the complaint was that boards, and judges, had become too lenient. Prisons were not supposed to be about reforming prisoners. They were about punishment, swift and certain. And so a new era began, the era of determinate sentences.

Davis’ sentence was recalculated to a firm six years. He did the time and was released. Soon, he had kidnapped again. He received a fixed sentence of 16 years, with one catch. With legislators padding the penal code with harsh, mandatory sentences, the prisons had begun to overflow. To ease pressure, inmates could now receive “good time credits,” cutting their terms in half. Davis walked in eight years. Soon, he was in Petaluma, stalking Polly.

And so the reformers rode again, this time with “three strikes.” Now prisons would also be about crime prevention. Thus, a pizza thief with two priors could receive 25 to life--on the theory that pizza plundering indicated a criminal who might do something worse down the line. And once again came consequences, some foreseen, others not.

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Yes, crime rates have dropped, but they’d been headed downward before “three strikes.” Prisons now operate 188% of capacity. Downstream, courts are overloaded, jails jammed. Jailers have begun to fret about prematurely setting free inmates in order to make room for “three strikers” fighting felony counts. Interestingly enough, not all legislators were distressed by the court’s ruling, though the rhetoric ran otherwise.

“Everybody over here,” admitted one Capitol veteran, “was scared to death of a Willie Horton.” They worried about the fallout should some sheriff release a petty criminal early because of “three strikes” overcrowding, only to see the bad guy turn worse and kill somebody. “Now,” the lawmaker said, “all the heat is on the judges.”

Which, outdated as this will seem, perhaps is where it should be. Imagine, just for a moment, if judges could again sentence criminals as individuals--taking into account the crime and, yes, the criminal’s record. Judges deemed too lenient, or harsh, could be voted out; it’s in the Constitution. Imagine, too, if parole board members were empowered again to make honest decisions about which inmates were fit to reenter society. Imagine . . .

Human beings at the switch, exercising judgment, accountable. This will no doubt frighten many folks. More than anything, the grasping for reforms reflects a lost trust in the human custodians of the “system.” The hunger is to replace the humans and their well-known foibles with a perfect formula, with an unblinking machine. The motive may be pure, but this is a wish best avoided, lest it come true.