3 Strikes and You’re Where? And Now Federal Proposals : Get violent criminals off the street? You bet, but how best to do it?
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“Three strikes and you’re out” is political shorthand for legislation born out of enormous anger and fear about violent crime in America. Such sentencing proposals, under consideration in Congress and roughly 30 states, are intended to imprison three-time felons for life. The problems associated with “three strikes” legislation are present in the federal versions as well as in the many pending state proposals that we discussed in two recent editorials. The impulse behind the bills--to get criminals off the street and behind bars for as long as possible--must be carefully targeted if it is not to trigger the famous Law of Unintended Consequences, the recurring phenomenon that so often plagues public policy in America.
The federal versions, authored by Sens. Phil Gramm (R-Tex.) and Trent Lott (R-Miss.), take the form of two amendments to the $22.3- billion federal crime bill that the Senate passed in November. They would impose mandatory life sentences for individuals convicted of a third “federal crime of violence” (under varying definitions) or those who received two prior state convictions for committing a violent crime. The law also would apply in cases of a third conviction for a major drug trafficking offense or selling drugs to minors, crimes that are not necessarily violent.
Supporters of various “three strikes” proposals include no less than President Clinton, who virtually endorsed the idea in his State of the Union message last month; other backers are California Gov. Pete Wilson and New York Gov. Mario Cuomo. However, Clinton now is expressing second thoughts about the federal legislation. He has good reason to do so--and he should be applauded for airing his reservations despite the current anti-crime stampede.
With crime the top concern for many Americans--43%, according to a recent Los Angeles Times poll--no politician wants to be seen as soft on lawbreakers. But far too few federal legislators are thinking realistically about how a “three strikes” policy actually would work or are questioning the underlying assumptions of the Gramm and Lott amendments.
1. Would “three strikes” laws deter crime? Politicians pass tough criminal sentencing laws, whether federal or state, because they believe that such laws have a strong deterrent effect on crime. But the evidence for this is not convincing. Despite increasingly harsh and inflexible prison sentences in recent decades, particularly for drug offenses, the national crime rate has rocketed by 371% since 1960--increasing nine times faster than the population. These tough sentencing laws may well have prevented an even greater rise in crime, but as in the case of past sentencing reforms their deterrent effect is anything but obvious.
2. Which three-time felons should be incarcerated for life?
Beginning in the mid-1980s and as part of its high-profile war on drugs, Congress imposed harsh mandatory minimum sentences for a wide variety of drug crimes, including those involving first-time offenders and those convicted on charges of nonviolent sale or possession of drugs. In so doing, Congress severely eroded judicial discretion and a fundamental principle of our justice system--that the punishment should be fair, that it should fit the crime. Existing mandatory minimum laws are problematic; “three strikes” proposals are mandatory minimums in another guise. And those that sweep nonviolent felons into prison for life wouldn’t be smart policy either. These proposals make sense only when they are targeted on repeat felons with a record of violence. The Times endorses that approach.
3. Do federal prisons have room to house three-time felons for life?
Simply put, no. The federal prison population is already 40% over capacity and growing at the fastest rate in the world.
When Atty. Gen. Janet Reno launched an inquiry last year into the composition of the federal prison population, she asked whether beds in overcrowded federal prison facilities were, in effect, being wasted on low-level nonviolent offenders as a result of those laws. As suspected, the study, issued earlier this month, found that about one of every five federal prisoners--16,316 in all--are “low-level” offenders. Two-thirds of those inmates were serving a mandatory minimum sentence. The federal inmate population already is projected to grow significantly as more crimes become federal offenses. If a federal “three strikes” law passes, repeat felons sentenced to life can be accommodated only if Congress rethinks the unrealistic sentencing guidelines it imposed earlier for some nonviolent offenders.
The people deserve full answers to the questions surrounding “three strikes.” Those answers aren’t likely to be the stuff of slogans but surely they will be the foundation of sound public policy. And a safer America as well.
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