Law Strikes Too Hard

Public outrage over the gruesome murders of Kimber Reynolds in Fresno in 1992 and Polly Klaas in Petaluma in 1993, each by released felons with long rap sheets, fueled passage of California’s “Three strikes and you’re out” law in 1994. Within months the Legislature, through statute, and the electorate, through a ballot initiative, amended the penal code to require life imprisonment for repeat felons.

Now five years old, the three-strikes law has been responsible for taking many incorrigible criminals off the streets forever. But laws drafted in the heat of public passion often have unintended effects, in this case by incarcerating--for life--people who don’t pose a serious danger to the community. It’s time for a review of the three-strikes law and some modest tinkering. A bill before the state Assembly for a final vote this week is an important first step.

California’s three-strikes law is among the most severe in the nation, defining a third felony as virtually any crime beyond misdemeanor, including such nonviolent offenses as drug possession, petty theft, writing bad checks and burglary. These offenses must be prosecuted, but it doesn’t follow that conviction should automatically trigger life imprisonment without possibility of parole. Most of the 24 states with three-strikes laws require that all three strikes be serious or violent crimes to merit a life sentence. That’s the direction in which California should move.

The severity of the current law has meant that half of the third-strike felons are behind bars for life for committing a crime that was neither violent nor serious in the eyes of the law, such as drug possession. Housing these convicts, most between 25 and 34 years old, for the rest of their lives poses a colossal drain on tax revenues and a huge waste of lives.

New data has cast doubt on the rationale for this tougher-than-tough approach. Research from the San Francisco-based Justice Policy Institute released last spring indicates that crime has dropped at about the same rate in counties that vigorously enforce three strikes as in counties with district attorneys who use their discretion to file some less-serious criminal charges as misdemeanors.

For all these reasons, the state is overdue for a debate on how to fine-tune the three-strikes law. A bill by Sen. John Vasconcellos (D-Santa Clara) would start the process by directing the state Office of the Legislative Analyst to study the costs and benefits of California’s three-strikes law. RAND and the Justice Policy Institute have already done such studies and concluded that the state is spending a fortune to incarcerate, often for life, men and women whose third felony was a relatively minor crime. If Vasconcellos’s bill becomes law, as it should, the LAO is unlikely to reach a different conclusion.

This bill reflects growing concern, even among some Republican legislators, about the severity and costs of the existing three-strikes law. An LAO study, if the bill passes, should give concerned lawmakers the political rationale they need to refine three-strikes so that it focuses on California’s more dangerous criminals.