Mighty Casey Has
Struck Out: Why the California
3-Strikes Law is not a Positive Social Policy
I. Introduction
Imagine being sentenced 25-years to life
for stealing a slice of pepperoni pizza.
This scenario may seem a little excessive, but in California it
happened. Jerry Dewayne Williams
received just this type of sentence under California’s Mandatory Sentencing
Law, often called the three strikes law.[1] Williams was charged with a felony because
he had prior felonies that ranged from robbery to unauthorized use of a motor
vehicle.[2]
Cases like this are the reason that
citizens in California and all over the United States are re-evaluating the
effect of this type of law and its original intent. The three strikes law’s intent, originally, was to deter criminals
from committing serious or violent crimes and lowering the crime rate. The legislators that support the law in
California argue that the bill’s intent was to improve public safety. We will explore crime rates to prove that
these factors do not happen. We will
also highlight the other social problems caused by this law.
II.
History
The California three strikes law was
enacted by the California Assembly on March 4th, 1994.[3] The event that triggered this law happened
on June 29th, 1992 when Kim Reynolds was killed by Joe Davis. Since Davis was a repeat felon Mike
Reynolds, Kimberly’s father, met with Judge Ardaiz to assist him in the outline
of what is today known as the three strikes law. The goal was to keep repeat felons off the street.[4] The law was initially struck down by the
California Public Safety Committee in the state general assembly.[5] At this point Reynolds decided to by-pass
the legislature and use the California initiative process.[6]
In early 1994 Reynolds approached the
legislature with enough votes to get his initiative for the law passed by the
voters. Governor Pete Wilson pushed
through one of the four versions of the law being thought about by the general
assembly.[7] Because 1994 was an election year Reynolds
and Governor Wilson threatened to call anyone that stood in the way of the
legislation ‘soft on crime.”[8] The law passed, and sentenced its first
victim on September 14th, 1994.
Thomas Cargill was found guilty of car theft and became the first person
convicted under the 3-Strikes law in California.[9]
Reynolds still was not satisfied by the way
the law was passed so he went through with the initiative. He wanted the initiative to go through so
the legislature knew this law was what California citizens wanted.[10] On November 8th of 1994 the
initiative, now known as Proposition 184, was passed by the voters 72%-28%.[11]
The California Supreme Court recently has
ruled to give judges discretion in applying a three strike triggering offense
prior to conviction if they believe the 25 year-to-life in prison is too cruel.[12] In a case called People v. Superior Court
(Romero) the California Supreme Court did not overturn the three strikes
law; they just gave judges discretion in its application during
sentencing. The decision in Romero is
the final court decision on this matter.
No federal tribunal or other California Supreme Court case has issued a
decision regarding California’s 3-strike law.
III. How the Three Strikes Law is Applied
The
three strikes law is triggered in the sentencing phase of a criminal
action. The law gives a judge limited
discretion in sentencing and makes a person who commits a third felony face a
sentence of 25 years-to-life in prison if convicted.[13] This law also has a second strike provision
raising the minimum sentence of a person who commits more than one felony, but
the real teeth to this legislation is in the 25 year-to-life sentence for a
third felony conviction.[14]
The controversy is that the law does not allow for discretion or any
distinction between violent and nonviolent felonies. This is where nonviolent offenders who might have a third felony,
such as a drug possession or a stolen piece of pizza will face a life sentence.[15] In California certain crimes such as petty
theft, car theft, assault, commercial burglary, possession of a weapon, or
possession of drugs can be charged as either a misdemeanor or felony.[16] Based on the facts of the case, one has the
possibility of getting a 25 years-to-life sentence for a simple bar fight,
making the law ripe for controversy and the main area that opponents of this
law want to see amended.
IV. Effect on the Crime Rate
According to a poll of the public’s
attitude in California 70% of all citizens feel that crime is a problem that
needs emergency action.[17] This particular study also showed that 54%
of the American people feel that crime is the worst problem facing the country,
ranking it far above the economy, health care or the environment concerns that
were expressed in the survey.[18] Based on these studies, obviously the three
strikes law is a very proactive way to appease the people’s fears. However, it is not a well thought out means
to the end of lowering the crime rate.
The California Crime Rate from 1988 to 1998
has some interesting trends compared to the national rates as a whole. In figure 1 below the crime rate is broken
down into a rate per 100,000 with population indexed to 1988.[19] The base value in figure 1 is (1988=100).[20] The CCI which includes the crimes homicide,
forcible rape, robbery, aggravated assault, burglary and motor vehicle theft.[21] Figure 1 shows that from 1988 to 1998
California experienced a 35.3% drop, and most of that drop off occurred after
1994.[22] Supporters of the three strikes law would
likely argue that the law is the direct cause of this quick drop. California is excluded from the United
States line shown below in figure 1.
Figure
#1
California Crime Index, 1988-1998
Rate per 100,000 Population Indexed to
1988 (1988=100)
The argument by supporters of the three
strikes law is that it is working to lower the crime rate in California. Many of California’s civic leaders promote
the law saying that even though crime has been dropping nationwide since 1991
the most drastic drops have happened after the law went into effect.[23] The counter argument is that the crime rate
is on the move downward, but the law in fact does not effect the crime rate
because it does not in application give stricter penalties to habitual violent
offenders as originally intended.[24] Both arguments have a great deal of
foundation, however the facts clearly show that the law does not have a
positive impact on the crime rate or on the justice system as a whole.
The people who argue in favor of the three
strike law have many reasons for its justification. Most of this justification does not rely on statistical
data. Instead they go to the criminals
for their opinions about the law.
Though not very scientific, it is a good grass roots way to determine
the attitude of the people directly affected by the law.
One study talks of the lower rates of crime
since the three strikes law was enacted.
In this study raw data is used.
There is acceptance that the crime rate was going down in California
before the act was passed as law in 1994.[25] From 1990-1993 the author argues that the
crime rate over all dropped 2.4%.[26] However, there was an increase in violent
crime 7.4%.[27]
The increase in violent crime shows that
there might not actually be a drop in the crime rate nationwide where the citizens
want or need the drop in crime to take place.
However, the California three strikes law does not specifically target
violent crime, making looking at violent crime irrelevant because the law does
not specifically target violent crime.
This study also goes on to quote a
California Justice Department study that looked at the years 1994-1998.[28] This study showed that the homicide rate in
California dropped 51.5%, the rape numbers dropped 18.7%, robbery dropped
48.6%, assault was down 25.9%, burglary took a plunge by 38.3%, and car theft
was down 40.2%.[29] This drastic drop could have been caused by
the three strikes law.
One of the other telling statistics was
that in the first 6 months of 1995 California’s crime rate was down 7%,
compared to the overall national crime rate being down only 1%.[30] Yet another reason to be praising the three
strikes law. All this led the to the
Attorney General of California calling California citizens “…the safest they
have been in 30 years.”[31]
The supporters of the law also feel that
the talk throughout the prison system is also a good indicator as to how the
law is working. In Sacramento Lt. Joe
Enloe of the Scramento Police Homicide explains, “You hear them (the criminals)
talking about it all the time…it’s swift and sure, not like the death penalty.”[32] One of the strongest supporters of the three
strikes law is the District Attorney of Kern County Ed Jagels. He said, “I go to prisons and do classes for
inmates in three Strikes…there is no other topic of conversation within the
institutions other than the impact of this statute.”[33] He has even heard talk from inmates that
they are going to move to another state to avoid the effect of this law.[34]
This on its face does support the three strikes law as a socially positive program. The fear of the inmates and the statistics that are coming in from the California Justice Department do make a good case that the three strikes law is working. However, in the laws application does it work? The major thing to look at is whether or not the law actually imposes higher sentences on people that are violent habitual offenders.
There is another study that shows that the
law in effect is not being applied to give the longer sentences to the violent
or serious felony offenders. Once this
gets around among the criminals the long term effects of this law will not be
anything the supports had hoped to have happen. The criminals will not even be afraid of the law when they
realize its application is flawed.
This study looked at the 1996 crime rates
in San Diego County, California. San
Diego County was picked for its ranking in the crime rate and the number of
three strike offenders it has in jail.[35] San Diego county factually, in the 1990’s,
has an overall crime rate below the state wide average.[36] It was ranked 21st in overall
crime rate in 1996 with a total of 4,604 crimes per 100,000 people.[37] The reason San Diego is perfect for this
study is because there population is high enough and they have a good number of
three strike cases.[38]
San Diego county also is interesting
because its ranking in the violent crime rate is low compared to their number
of three strikes sentences. In the
chart below, figure 2, you can see that 9 of the 13 counties that have higher
violent crime rates have a lower number of three strike convictions per 100,000
people than San Diego county.[39] If this law was enacted to stop violent
crime why are the counties with higher violent crime not using this law more
often? Simply by looking at San
Francisco County in the chart one can see (Figure 2) they have the highest
violent crime rate of any California county, yet they use the three strikes law
less than any other county in California.[40] The citizens of San Francisco should want
this law to go into effect considering that there are only 768,200 people that
live in the county and they have the highest violent crime rate of any county
in California.[41] Also note that Kern County, who had a lower
violent crime rate than San Diego, used this law almost as much as Los Angeles
county.[42]
FIGURE #2
|
County |
# of
Total Strike Convictions Per 100,000 People |
Violent
Crime Rate
|
|
San
Francisco |
6.2 |
1,295 |
|
Los Angeles |
51.3 |
1,262 |
|
Fresno |
35.6 |
1,018 |
|
Alameda |
9.6 |
1,017 |
|
Stanislaus |
36.1 |
875 |
|
Madera |
26.3 |
818 |
|
Riverside |
32.8 |
815 |
|
San Joaquin |
49.3 |
811 |
|
Solano |
11.0 |
806 |
|
San
Bernardino |
34.7 |
793 |
|
Sacramento |
45.6 |
789 |
|
Shasta |
40.8 |
761 |
|
Santa Cruz |
11.5 |
728 |
|
San Diego |
39.9 |
703 |
|
Kern |
51.0 |
661 |
|
Merced |
28.7 |
640 |
|
Imperial |
16.3 |
635 |
|
Contra
Costa |
22.6 |
616 |
|
Santa Clara |
30.4 |
547 |
|
Orange |
24.6 |
453 |
|
Ventura |
19.9 |
406 |
|
San Mateo |
22.2 |
347 |
*Note this chart calculates the violent crime rate based on the
California Crime Index and the FBI Crime Index including the crimes of murder,
forcible rape, robbery, and aggravated assault per 100,000 people.
It is clear that San Diego is one of the
counties that is using this law an extreme amount for the violent crime that is
reported in their county. It is
possible that the crime rates could be negatively affected by the sentences not
being serious to violent offenders.
The San Diego study’s figures that rendered
the most astounding were the 148 cases that resulted in felony convictions or
pleas that triggered the three strike law to go into effect under either the
second or third strike provision of the law.
Of those case only 20% involved offenders who committed three violent
crimes.[43] Violent crimes in this study consisted of
murder, mayhem, rape, forcible sex crimes, child molestation, robbery and
kidnapping.[44] The remaining 148 cases broke down as shown
in Figure 3. The study shows 55% of the
cases had only one or two violent crimes before the law was triggered.[45] This number is regardless of whether a
felony plea or conviction was violent or nonviolent that triggered the three
strikes law.[46] Meaning that the triggering offense could
have been nonviolent.
FIGURE #3
|
Number of Violent Crimes Committed to
Trigger the 3-Strikes Statute |
Percentage of the 148 Cases that
Qualified as Felony Convictions or Pleas |
|
More than 3
Violent Crimes |
8% |
|
3 Violent Crimes |
20% |
|
2 Violent Crimes |
34% |
|
1 Violent Crimes |
21% |
|
0 Violent Crimes |
17% |
The argument made by the opponents of the
law is that it is clear the law is not targeting the people who need to be
targeted. Numbers show that violent
crime might be punished enough under this law, but the majority of the people
being sentenced under the three strike law are nonviolent offenders.
Another staggering statistic is the length
of sentence that violent offenders are getting compared to nonviolent
offenders. Of the 148 cases from this
sample shown in Figure 3, 72% of those in the study committed 2 or fewer
violent crimes making this group the majority of the people convicted under
either of the three strike law’s provisions.
A criminal committing 2 violent crimes within this sample got an average
sentence of 9.6 years.[47] One violent felony got the criminal an
average of 11.7 years.[48] The shocker is that if a felon in this
sample committed no violent felonies the average sentence is 17 years in
prison, clearly sending a message that the more violent a criminal one is the
less time, on average, a criminal will get for his or her transgressions.[49]
Some may argue that these facts are skewed
by the extreme sentences of 25 years-to-life.
However, if you take these cases out of this 148 case sample the results
may be less staggering, but the inverse averages are still present. If a criminal commits 2 violent crimes the
sentence on average will be 7.5 years.[50] If only one violent crime is committed it
will carry an average sentence of 7.8 years.[51] The disproportion is still present. However, for nonviolent crimes committed the
average sentence is only 6.8 years, still surprisingly close to the two violent
felony groups from the sample.[52]
Statistics
tell California criminals that it is better to commit violent felonies because
even if an offender triggers one of the two provisions of the three strike law,
the offender will not get as long a sentence, on average, as a person who
commits nonviolent felonies. It is
impossible to argue that these statistics show motivation for a criminal to be
afraid and deterred by the law. A
criminal might now be worried as the supporters of the law argue, but that fear
is based on ignorance and when the flawed application of this law is realized
the effect of the law on the crime rate will be minimal.
V. Effect on Prisons and the
Judicial System
The supporters of the three strikes law also failed to look at the negative impact the law has on the courts and the prison systems. Many cost benefit analysis have been done on the law and the supporters of the three strikes law argue that people will pay a greater cost to have their street be safer and free from violent crime. However, opponents of three strikes law argue that the cost clearly out weighs the outcome.
At the end of September 1999 California had about 43,800 inmates charged as second strike offenders and 5,700 three strike offenders under the three stike law’s two provisions.[53] Anywhere between 700 and 900 second strikers admitted to prison on a monthly basis and about 100 three strike offenders admitted each month.[54] Statistics show that the provisions of this law have the potential to put 1,000 criminals behind bars a month.
First, we look at the prison budgets and populations and how the law effects these institutions. Logically, one would think that a longer prison sentence would equal more money spent and safer streets. However, investigating the sentences with regard to violent crime rates shows that we have gotten prison rates for nonviolent criminals that are on average longer. The streets are not necessarily safer though because violent criminals are out on the street faster than nonviolent criminals on average.
It is true that the prison population has grown drastically from the year 1980-1993.[55] The nations prison population grew over that time period about 188%, making the United States the world leader in incarceration rate.[56] The national projections show that the prison rate grows by 700 inmates a month and with this new type of law imposing longer sentences over the next decade, state and federal prison inmates will rise to at least 2.26 million.[57] The obvious result will be the building of new prisons all over the country, especially in states like California that have these types of sentencing laws. Interestingly enough, since 1973 the per capita prison rates have been on the rise and the crime rates have been slightly on the decline.[58] The crime rate reduction could be related to the number in prison, but with the numbers so out of proportion and with the facts shown relating to the crime rate this population increase is bad socially for the United States since violent criminals are not being targeted as intended.
Logically, the amount of stress that the three strikes law puts on this
over crowded prison system is much greater than anything it has seen
before. People that are classified as
three strike offenders or under a second strike sentence made up about 14% of
the prison system as of June 1996.[59] In June of 1999 that number had risen to
22%.[60] By next year the projections by the
California Department of Corrections say that one in every four California
Prisoners will be incarcerated under one of the two provisions of the three
strike law.[61] Data was not looked at with regard to years
before the law went into effect because there was no law, so there was not a
part of the prison population effected by this law.
The court system
is also more backed up now more than ever before because of the three strike
law. As a logical deduction, if a
criminal faces a longer sentence for a crime, they are not going to plead
guilty and serve 25 years-to-life, which is the penalty under California law if
the third felony provision of this law is triggered. If a criminal were in the situation that this felony would make
him or her face a possible 25 years-to-life sentence the accused would want to
take their chances with a jury.
Does this logic,
however, have any statistics backing it up?
The answer is yes. Normally only
3%-4% of all trials in California go to a trial by jury.[62] However, 34% of all three strike triggering
trials have a trial by jury.[63] For the accused, this is the only logical
course of action to take especially when a nonviolent felony triggers the third
strike provision.[64] The defendant in a case will obviously hope
that a jury will understand the sentence will not fit the crime and instead of
coming back with a verdict be a hung jury or vote not guilty.[65]
The cost on the
court system is also increased by the use of the three strikes law. In California normal felonies are resolved
by a plea bargain that may cost $600 to defend.[66] However, a full blown trial normally will
cost about $50,000 to defend.[67] Since most of these defendants will qualify
for public defenders, the increase on the docket as well as the cost for
lawyers to defend these accused will paid for by the tax payers.[68]
The burden to the
justice system from this law is too great a burden to impose on a society. Showing that this law in its application has
far reaching negative social effects than the supports of the law probably
considered when they enacted it.
VI. A Better Methodology for a Study of the Three
Strike Law’s Social Effects.
The extensive
study of San Diego counties application of the
three strikes law is good and is statistically sound. It proves the study’s point that the three
strikes law is clearly flawed based on how it is applied in San Diego
county. Hinting at a trend for the rest
of California. It also proves that even
though a place like San Francisco has not used the law as much, they still have
experienced a crime rate reduction over all.[69]
To construct a
better study of the three strikes law in California more counties need to be
used in the model with selected cases from each county. California is a huge state and it is clear
that not all counties or all the cases from one county can be used because this
would be too cumbersome. A study targeting
counties for certain demographics would be effective.
An example would
be if a study was to be constructed looking at the application of the law in
California. The researcher would want a
sample of counties that apply the law differently. Looking at figure 2 of this paper a good study might include
higher application counties like Los Angeles and Kern, then some low
application counties like Alameda and San Francisco, and then two or three
middle of the road counties such as Madera, San Diego and Santa Clara. These counties also have various levels on
the violent crime rates reported in figure 2 making for an even sample.
A sample of
counties and cases selected would also depend on what you want to study with
regard to the three strikes law. Some
suggested areas would be the effect of the law on ethnic groups or minorities, the
effects of the law on the courts, the effects of the law on certain age groups,
or the effects of the law on taxpayers with regard to money being spent for
safer streets. The effects this law has
on the crime rates would also be a great study with a sample of the counties
described above.
VII. Conclusion
It seems clear
from the research that some serious problems are associated with the provisions
of the three strikes law as it is written and applied in California today. The supporters have good points about the
laws intended effects, but the statistics tell another story that in the long
run will make for a huge social disaster in the state.
The solution
maybe amendments to the law to eliminate the nonviolent felonies from
triggering the three strike law. Still
others argue the law should only be triggered by all three felonies being of a
violent nature. No matter what
something has to be done because Section 667 of the California Penal Codes, the
three strikes Law, has clearly struck out as a social policy that acts to make
California Citizens safe from serious and violent crimes.