Bewildered by Apparent Stupidity: Why is the United States so extremely punitive? With special focus on the three strikes phenomenon.
Why is there a trend in the United States towards extreme punitiveness favouring retributive justice in the absence of support for the efficacy of this approach in the prevention of crime? It seems as though there is an irrational belief that extreme punishment, in addition to satisfying a felt need for vengeance, functions as a deterent to crime, therefore a willingness to spend vast amounts of money on prisons even though there are schools in the US with inadequate resources for computers, libraries, instructional materials, etc.
The value of education through to the college levels
has clear benefits to society, including the reduction of crime (Institute for
Higher Education Policy, 1998), yet expensive ‘three strikes’ type laws are
preferred over more constructive education oriented early interventions for at
risk youth. The U.S. Department of Education is even defining a policy to go
into effect in 2001 whereby university applicants who have been convicted of
drug offences are to be denied student loans or government grants (Pleitez,
1999). This is a measure which further
punishes the already punished by denying them access to education, something
which has been shown to reduce the likelihood of the person committing crime by
reducing the likelihood of unemployment, one of the factors along with youth
and alcohol abuse correlated with a predilection to crime (see diagram). Furthermore, compound punishment of any kind
begs the question of at what point punishment violates the 8th
amendment of the United States constitution protecting individuals from
excessive fines or cruel and unusual punishment (ratified 1791, in The U.S. Constitution Online).
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(diagram in Institute for Higher Education Policy,
1998)
Another variety of compound punishment where
previous convictions severely influence subsequent ones are the ‘three strikes’ type programs which have
been implemented in 20 states (ACLU, 1996:4) and generally follow a formula
where the second offense is punished more severely than the first, and the
third offense results in a sentence of 25 years to life. The types of offences that count as strikes
vary somewhat from state to state, but the focus is on ‘serious’ crime. These crimes mostly fall into the category
of violent crime, but property crime, such as burglary, is often included, and
in California any crime counts as a
strike if it is the third. According to
the Center on Juvenile and Criminal Justice in San Francisco, “85% of those
receiving stiffer sentences had been convicted most recently of a nonviolent offense.”(in
ACLU, 1996:3). The cost today of
greater incarceration rates is high, but the continued cost is even higher, as
the state will have to pay the expenses of a much larger senior citizen
population of inmates, estimated by the American Civil Liberties Union (ACLU)
to cost three times as much per senior inmate as for a youthful inmate (ACLU,
1996). This in spite of the fact that
seniors are statistically shown to be unlikely to offend, as they are removed
many years in time from the high risk youth age group!
Why is this?
Are Americans collectively devoid of any kind of common sense? The arguments against three strikes are so
compelling that one wonders. The ACLU
makes several cogent arguments against three strikes (ACLU, 1996). Firstly they note that harsher sentencing of
repeat offenders is routine in all states.
Applegate et. al. (1996) note that some form of harsher sentencing has
been in place for repeat offenders since colonial times in the US. I suppose that after centuries of it not
working, some consider the answer to be to punish harder still, flogging the
proverbial dead horse and failing to learn from their own history. A potential defense, that it isn’t about
punishment but rather protecting the public, is somewhat lame in the face of
the fact that of 34 million crimes committed in the US only 3 million result in
arrest (ACLU, 1996. Note, they don’t
state of the 3 million arrests how many actually result in conviction.). Even if they could catch all 34 million offenders
they wouldn’t have space to keep them, even with a demonstrated will to invest
heavily in prisons. Consequently it
seems clear that the emphasis should be on crime prevention, and the punitive
emphasis of the very expensive three strikes approach isn’t cost effective
(something of an understatement).
The ACLU (1996) further notes that three strikes is
not an effective deterrent not only because the vast majority of crimes go
unpunished, but because violent crime is typically committed in an empassioned
state, not a rational one, or in a drunken haze. Criminals for the most part do not conduct detailed cost/benefit
analyses prior to offending. The ACLU
also worries that it could lead to an increase in violence from a category of
offender who has nothing to lose facing a third strike, even to the extent of
killing a police officer in order to avoid arrest.
Politicians calculating the cost of three strikes
typically ignore expenses such as the cost of the geriatric prisoner, and
cannot anticipate the unanticipated – for example, in California judges
deciding that the law cannot deprive them of judicial discretion as to whether
or not they consider prior convictions in sentencing, resulting in as many as
20,000 appeals (ACLU, 1996:4). Also not
factored into costs is the incarceration of the innocent. Those falsely accused of crimes may plead
whatever the prosecutor wants them to in order to avoid life imprisonment, even
if they did not commit the offense (Families to Amend California's 3-Strikes
(FACTS), 1998). The
ACLU also expresses concern in general about the loss of judicial discretion,
but that may not be as serious a concern if state supreme courts are prepared
to rule that mandatory sentencing violates the “separation of powers by giving
prosecutors veto power over the sentencing authority of judges” as did the
California supreme court (ACLU, 1996:4).
Perhaps the most frightening concern expressed by the ACLU and others is that three strikes has a disproportionate effect on blacks, already disproportionately represented in the prison system. Blacks make up 7% of the general population of California, 31% of its prison population, but are 43% of those sentenced under the three strikes law (ACLU, 1996:3).
So are Americans just mean and stupid? The answer probably has more to do with fear, a fear of crime whose origin is in
the reality of a crime rate significantly higher than that of countries with
more comprehensive social programs and strict gun control laws like
Canada. It is not irrational for
Americans to be concerned about the crime rate, but reasonable fear is
exaggerated by media, politicians, police agencies like FBI with their
notorious ‘crime clock’ instituted by Herbert Hoover, until there is a
collective irrational hysteria which makes the passage of three strikes
legislation very easy.
In California, three strikes legislation was put
before the legislature in an election year and after a much publicized murder
and kidnapping, consequently it was easily passed by legislators afraid of
appearing ‘soft on crime’. It was
further reenacted as Proposition 184, voted for by the public with a 72% majority
in favour (FACTS, 1999). Therefore,
supporters argue, it is very ‘democratic’, the people have spoken and provided
unqualified support for three strikes.
In truth, public support for three strikes may not be as universal as
supporters would have us believe.
Applegate et. al. (1996) conducted a study in Ohio
at a time when residents there were facing the prospect of a vote on three
strikes type legislation for their state.
When Applegate et. al. asked a very general question about whether
people supported three strikes legislation for serious repeat offenders, the
response was overwhelmingly in favour, 52.1% supporting strongly, and 36.3%
supporting somewhat. However, when
asked to respond to specific vignettes and determine what would be an
appropriate sentence for a third time offender, only 16.9% chose the third
strike consequence under the legislation proposed for Ohio (“either a life
sentence with a possibility of parole after 25 years, or a life sentence with
no possibility of parole”). There was a
significant discongruence between people’s responses when asked to respond to
the general question versus specific instances. The general question seems to evoke a knee jerk response
conditioned by anger, fear, and frustration, whereas the specific vignettes
called for a more considered response.
There is real world concern about three strikes in
California as well. The knee jerk
response of California voters on Proposition 184 came back to haunt many
parents when their own children were convicted of even a first strike, bringing
home the reality of the legislation in a very real and immediate way. Families to Amend
California's 3-Strikes was born (FACTS).
They are not opposed absolutely to the three strikes law, but would like
to have it amended so that it functions in the manner they thought it should
when many of them voted for it, that is, as a means of taking seriously violent habitual criminals off
the streets. Their reasons for amending
are numerous, including economics, existence of better alternatives, inhumane
unjust punishments, disproportionate application to minorities, fear and
vengeance motivation, manipulative politicians more interested in their own
advancement than public welfare, retro-active application (applies to crimes
commited before it’s enactment – perhaps I’ll have a strike there when they get
around to ex-post facto including speeding tickets!), coercion to plea bargain
even if innocent, and social construction of criminals as evil monsters – quite
a list! (FACTS,1998:2).
FACTS and others supported a bill introduced by Jose Valentinas calling for the investigation of three strikes law which would result in an analysis and report (California State Senate, 1999), a simple fact finding bill, which was passed but vetoed by the governor, Gray Davis (Davis, 1999). Davis in his veto letter cites the decrease in crime rates in California since 1994 as seemingly self evident evidence for the lack of necessity for such a study. He fails to mention any correlation with improvement in the economy, or studies such as that by Franklin Zimring, a University of California, Berkeley, law professor which found no deterrent value to the three strikes law (FACTS, 1999:2), or that crime rates declined over that period in general across the United States in states with and without three strikes laws (ACLU, 1998). FACTS and others intend to continue to fight for amendment of the law, with another public initiative in the works which seeks to eliminate non-violent and non-serious offenses from consideration, have multiple counts during a single incident count as only one strike, and which will apply to those currently sentenced under three strikes (potential to redress many of the excesses documented by FACTS and others (FACTS, 1999:3; ACLU, 1996:3)).
Why is the United States so harshly punitive, resorting to compound punishment at every opportunity and feeding a voracious prison industry with the bodies of its own citizens? I would suggest that it is from a lack of such qualities as compassion and reason.
What is the cause of this absence of compassion and reason? In a word, ‘fear’, a fear fed by politicians, the media, and private industry exaggerating a very real problem into an irrational monster tamable only through the most coercive measures on an unprecedented scale. Three strikes stops just short of demanding the death penalty for third strikers, so perhaps there are limits on how punitive the citizens of the United States are prepared to be (they must take responsibility, since they vote for the Gray Davises and sometimes directly for the initiatives). One hopes there are limits. More optimistically, just as the witch hunts of the 18th century abated, one hopes that groups like FACTS and the ACLU will be instrumental in bringing about the abatement of almost indiscriminate labeling and excessive punishment of people convicted, especially of non-violent crimes. While it might be risking a trip into fantasy land, one might even hope that some day the value of education and early socio-economic interventions with the at risk, especially youth, will become a higher budget priority than prisons. Perhaps Leonard Cohen expressed this best in his song, ‘Democracy’:
It's coming through a hole in
the air,
from those nights in Tiananmen Square.
It's coming from the feel
that this ain't exactly real,
or it's real, but it ain't exactly there.
From the wars against disorder,
from the sirens night and day,
from the fires of the homeless,
from the ashes of the gay:
Democracy is coming to the U.S.A.
It's coming through a
crack in the wall;
on a visionary flood of alcohol;
from the staggering account
of the Sermon on the Mount
which I don't pretend to understand at all.
It's coming from the silence
on the dock of the bay,
from the brave, the bold, the battered
heart of Chevrolet:
Democracy is coming to the U.S.A.
It's coming from the
sorrow in the street,
the holy places where the races meet;
from the homicidal bitchin'
that goes down in every kitchen
to determine who will serve and who will eat.
From the wells of disappointment
where the women kneel to pray
for the grace of God in the desert here
and the desert far away:
Democracy is coming to the U.S.A.
Sail on, sail on
O mighty Ship of State!
To the Shores of Need
Past the Reefs of Greed
Through the Squalls of Hate
Sail on, sail on, sail on, sail on.
It's coming to America
first,
the cradle of the best and of the worst.
It's here they got the range
and the machinery for change
and it's here they got the spiritual thirst.
It's here the family's broken
and it's here the lonely say
that the heart has got to open
in a fundamental way:
Democracy is coming to the U.S.A.
It's coming from the
women and the men.
O baby, we'll be making love again.
We'll be going down so deep
the river's going to weep,
and the mountain's going to shout Amen!
It's coming like the tidal flood
beneath the lunar sway,
imperial, mysterious,
in amorous array:
Democracy is coming to the U.S.A.
Sail on, sail on ...
I'm sentimental, if you
know what I mean
I love the country but I can't stand the scene.
And I'm neither left or right
I'm just staying home tonight,
getting lost in that hopeless little screen.
But I'm stubborn as those garbage bags
that Time cannot decay,
I'm junk but I'm still holding up
this little wild bouquet:
Democracy is coming to the U.S.A.
(Cohen, 1992)
Perhaps only a Canadian like Cohen could be that optimistic about the U.S.A., having some distance from the palpable fear, anger, and frustration that can kill the compassion and reason necessary to evoke the kind of change Cohen envisions. Lets hope he proves prophetic.
REFERENCES
American Civil Liberties Union Freedom Network. 1996. 10 Reasons to Oppose “3 Strikes, You’re Out”. http://www.aclu.org/library/pbr4.html
American Civil Liberties Union Freedom Network. 1996. CA Re-examines Three-Strikes Law. Press Release, Sept. 5, 1996. http://www.aclu.org/news/w090596c.html
American Civil Liberties Union Freedom Network. 1996. Three Guitars and You’re Out. Press Release, June 7, 1996. http://www.aclu.org/news/w060796c.html
American Civil Liberties Union Freedom Network. 1996. CA High Court Pokes Holes in 3 Stikes Law. Press Release, June 21, 1996. http://www.aclu.org/news/w062196b.html
American Civil Liberties Union Freedom Network. 1998. ACLU Says Three Strikes Law Not the Reason for Crime Reduction. Press Release, March 5, 1998. http://www.aclu.org/news/w030598b.html
Applegate, Brandon K., Cullen, Francis T., Turner, Michael G., Sundt, Jody L. 1996. Assessing Public Support for Three-Strikes-and-You’re-Out Laws: Global versus Specific Attitudes. Crime & Delinquency, 42:4, pgs 517-534.
California State
Senate. 1999. SB 873 - Sentencing: prior convictions: joint study.
http://www.sen.ca.gov/htbin/testbin/ca-billpage?SB/873/GOPHER_ROOT2:[BILL.CURRENT.SB.FROM0800.SB0873]
Cohen, Leonard. 1992.
Democracy. The Future. Sony Music
Entertainment Inc.
Davis, Gray. 1999. Letter to California State Senate on Vetoing SB 873. http://www.sen.ca.gov/htbin/testbin/ca-ahtml?GOPHER_ROOT2:[BILL.CURRENT.SB.FROM0800.SB0873]VETO.TXT;3/analysis/VetoMessage
Families to Amend California's 3-Strikes. http://www.facts1.com
Families to Amend California's 3-Strikes. 1998. Will Result in an Increase in Innocent People Being Forced to Plead Guilty.http://www.facts1.com/reasons/innocent.htm
Families to Amend California's
3-Strikes. 1998. Reasons to Amend 3-Strikes.
http://www.facts1.com/reasons/reasons.htm
Families to Amend California's
3-Strikes. 1999. Chronology of Events From 1991 Through 1998.
http://www.facts1.com/events/chrono1.htm
Families to Amend California's
3-Strikes. 1999. Recent 3 Strikes News.
http://www.facts1.com/general/recent.htm
Families to Amend California's
3-Strikes. 1999. 3-Strike Stories. http://www.facts1.com/stories/stories.htm
The Institute for Higher Education Policy. 1998. Reaping the Benefits: Defining the Public and Private Value of Going to College. The New Millenium Project on Higher Education Costs, Pricing, and Productivity. http://www.ihep.com/reap.pdf
Pleitez,
Karla Y. 1999. U.S. Students with Drug Convictions to be Denied Financial
Aid. The Daily Bruin. Los Angeles (U-Wire).