On Oct. 1, 1993, Polly Klaas was kidnapped at knife point from her Petaluma, Calif., home, where she had been enjoying a sleep-over with two teenage girlfriends. Subsequently she was found dead on a road about 45 miles from her house -- strangled. The man identified in court documents as the killer had been convicted repeatedly of the most serious and dangerous crimes, including kidnapping, robbery, burglary and assault. Yet he was released from prison a few months before Polly's murder, serving only half of the 16-year sentence for his most recent felony.
More than a year earlier, Kimber Reynolds, an 18-year-old girl living in Fresno, Calif., was shot to death by a career criminal on parole, who killed her because she resisted his effort to steal her purse.
The nation was stunned in July 1993 by the fatal shooting of James Jordan, known as "Pops" to his basketball-star son, Michael Jordan. The elder Jordan's death occurred at a rest stop on Interstate 95 in North Carolina, at the hands of two men with long criminal histories of violent crimes.
These incidents that spanned the country, and hundreds of others taking place in the states in between, have triggered a massive reaction among law-abiding citizens. People are expressing their urgent fears about violent crime and demanding that new measures be taken to change the criminal justice system -- particularly to protect against violent, repeat offenders who are being released into the community often after serving only a fraction of their sentences for previous crimes.
One of the measures most frequently proposed -- perhaps because of its catchy title -- is "three strikes and you're out," requiring that criminals involved in three serious, violent felonies be sentenced to prison for guaranteed terms up to life imprisonment. The details of these proposals vary, but the essential concept is the same: Violent career criminals who have demonstrated their proclivity for repeated offenses should remain in prison for life or at least until the public can be absolutely assured that they no longer are a danger to society.
Despite extensive public approval -- nearly 77 percent of Washington state voters launched a national movement for three-strikes laws by approving such a ballot initiative in October -- a vigorous debate has been kindled among politicians, academics and criminal justice experts over the efficiency of such legislation. Dire warnings of overwhelming costs, potential "geriatric prisons" and misuse of limited resources are among the challenges posed by three-strikes opponents.
After a careful review of the arguments on both sides, I believe that laws providing guaranteed lengthy prison terms for violent career criminals, if properly written and applied, would materially increase public safety and improve our citizens' confidence in the criminal justice system.
First, however, let me suggest a few conditions that should govern such measures:
* A "three strikes and you're out" statute is not a panacea and will not solve all the problems that face our law enforcement and criminal justice institutions. This type of measure does not substitute for expanded and better-utilized police resources, reform of the juvenile justice system, better management of prisons, revision of criminal evidence laws or common-sense attention to the root causes of crime.
* Those drafting three strikes legislation should remember the purpose of the concept: to keep repeat violent criminals out of circulation until they no longer are a danger to society. Therefore, it should apply to three violent offenses only (with the inclusion of home burglaries at night, since the crimes have such a high potential of violence), and not to just any three felonies.
* Since many violent criminals "burn out" in middle or advanced age, the term for three-time violent offenders should be near 25 years to life, with provisions for release of those who have served 25 or more years if correctional officials certify they no longer are dangerous.
* Three-strikes measures can be complementary to, and do not conflict with, other sentencing reforms that are under consideration, such as requiring violent criminals to complete 85 percent of the sentence meted out by the judge before they could be released from prison. Such a provision actually could result in fewer offenders becoming subject to three-strikes prerequisites: Well-structured sentences for early offenses, and an 85 percent serving requirement, reduce the opportunity for multiple-felony careers. The three-strikes law then serves as a "safety gate" to stop those offenders whose repeated criminality has not been ended by sound judicial sentences or appropriate lengths of imprisonment.
The argument in favor of a three-strikes law is made on the basis of common sense and statistical research. Most criminal justice experts agree that career criminals, who represent a relatively small component of the offender population, commit a disproportionately high volume of violent crimes. The problem in effective sentencing and prison-release decisions is to determine which criminals likely are to be repeat offenders. Those who "qualify" for three-strike treatment are self-selected. By having a history wherein they have committed a violent felony, served their sentence, committed a second felony, completed a second sentence and now have committed the third violent felony, they have demonstrated that unless they are otherwise deterred they will continue this pattern of criminality. The three-strikes incarceration requirement provides a deterrent by incapacitating the criminal at least until advanced age permits a safe release.
Illinois Rep. Henry Hyde, a senior member of the House Judiciary Committee and a proponent of three-strikes legislation, summarizes the statistical argument well:
"Most violent crimes are committed by a relatively small number of career criminals. One good estimate is that just 7 percent of young men with lengthy arrest records commit two-thirds of all violent offenses. Eighty percent of those who commit three violent crimes will go on to commit a fourth. Most will receive absurdly light sentences. A murderer will spend seven years in jail, on average. A rapist, only four years.
"Keeping these irredeemable predators in prison for life -- or at least for as many years as it takes to drain the criminality out of them -- is the single-most effective step we can take to combat repeated violent crime. Not only will they be removed from their customary prey, but also their tough sentences will deter others from following in their footsteps."
In the state that pioneered the concept, the nation's first three-strikes law is working well -- even changing the minds of some original opponents. John Carlson, president of the Seattle-based Washington Institute for Policy Studies, wrote that eight criminals who are facing the prospects of "striking out" under his state's new law include three sex offenders, all of whom have attempted murder, and one who committed murder; a four-time armed robber; and four other career criminals who have accumulated between themselves 64 prior criminal convictions.
This demonstration of the law's effectiveness caused the Spokane Spokesman-Review -- which originally had opposed three strikes -- to "grudgingly admit the new law appears to be working." In the same editorial, that newspaper conceded that the new law was catching the two kinds of criminals it now targeted: "high-profile predators who rape or kill repeatedly; and offenders who terrorize the community with chronic strings of lesser but still serious crimes, such as robbery."
The criminal history of the first felon to be sentenced under Washington state's three-strikes statute demonstrates why this concept is necessary and cost-effective. In and out of prison most of his adult life, this 45-year-old criminal was convicted of kidnapping and robbery (at knifepoint), two offenses that constituted his fifth and sixth felony convictions. His earlier crimes involved auto theft, armed robbery, a bank holdup and robbing a mail carrier. He also had violated his parole on a separate occasion by stealing about $1,000 from an automated teller machine. By repeatedly committing these violent crimes -- even while on parole -- this felon showed that his propensity for criminality and endangering others would have resulted in a continuing series of offenses. The attendant costs would be the victims and the criminal justice system through the repeated need to arrest, prosecute and convict him. Beyond these offenses' massive monetary costs, the community's heightened fear of crime also must be recognized.
Despite the extensive public appeal of three-strikes legislation, several reasons exist why someone would oppose it. The argument heard most often is that keeping people in prison for such a long time is too costly. But most responsible research into the cost-benefit ratio of imprisonment has shown that the actual cost of allowing a repeat criminal to roam free, continuing his depredation, is at least two to five times greater than the expense of keeping him in prison. This is particularly true of violent criminals; the savings in terms of human suffering must be added to a cost comparison.
Another argument voiced against long, mandatory sentences for career criminals is that this will create "geriatric prisons" and that taxpayers will be forced to pay the high cost of health care and other expenses for elderly prisoners whose age prevents them from being a continuing danger to society. However, well-drafted statutes should permit the release of such inmates when they have completed a minimum period (generally, 25 years) and the appropriate judicial or correctional officials are convinced they no longer are dangerous.
Opponents of three-strikes laws also claim that such measures take away discretion from the judge who is charged with the task of sentencing the career criminal. While this is true, the popularity of the law with the public reflects dissatisfaction with the sentencing and correctional practices that have returned violent offenders to the community too rapidly and have enabled them to continue their harmful ways. The three-strikes law does not interfere with judicial discretion during the early phases of a criminal's history, but does provide a mandatory stopping point when all other means of deterring a violent, repeat offender have failed.
Curiously, some have opposed the three-strikes rule as being too weak. "Why," they ask, "should a criminal be allowed to harm his victims as many as three times? Why not give him a long prison term on the first offense or at least the second serious offense?" Such long terms may be appropriate and usually are available by statute prior to the third conviction. There is nothing in the three-strikes concept that prevents severe punishment when it is deserved at an earlier stage. What the three-strikes law provides is a final barrier that keeps a confirmed criminal separated from society until he or she is no longer a menace.
Perhaps the most serious issue concerning the three-strikes rule has been advanced by author and conservative writer William Tucker in the American Spectator. Tucker postulates that more career criminals -- those with two or more convictions who would qualify for life imprisonment on their next offense -- are likely to kill their victims to avoid future identification, since the penalty for murder is no greater than the life term they already face.
While there is no available evidence that such a situation has commonly occurred in the 35 states that have other forms of habitual-offender laws, it is a concern that must be addressed. Most proponents of three-strikes laws believe that the possible risk of some career criminals killing witnesses or pursuing police officers because "they have nothing to lose" is more than outweighed by the benefit of permanently denying large numbers of violent, repeat offenders the opportunity to continue their dangerous crimes.
They argue that the chance of an "ordinary" robbery escalating into murder is greater than the probability of a witness being killed deliberately. Also, an enhanced penalty still would exist for those who kill during an otherwise nonfatal offense since such murderers would have no chance for parole, while career criminals who do not kill would have the hope of release at some point when they no longer are considered dangerous.
But Tucker actually provides the answer to this dilemma in his article, which is less an argument against the threestrikes law than it is a compelling argument for an effective death penalty.
To prevent the murder of witnesses and police officers at the hands of dangerous criminals who seek to avoid arrest -- which occurs today even without the three strikes law -- society needs the ultimate penalty of capital punishment.
Finally, some argue that instead of lock-'em-up strategies such as three-strikes requirements, we should give more attention and resources to dealing with the root causes of crime. Efforts to realistically deal with the underlying conditions that contribute to criminality should be encouraged, including changes in welfare-state programs and other public policies that exacerbate the problems of most low-income communities. But such long-term initiatives are not incompatible with strong, immediate measures to cope with the present danger of career criminals.
When a fire is raging in a community, prudence requires immediate action to put it out rather than devoting total effort and resources toward a future-oriented fire-prevention scheme.
Hyde emphasizes this priority well when he summarizes the reasons the public strongly supports three-strikes-and-you're-out rules for violent offenders in state and federal jurisdictions: "Sociologists can ponder and research the root cause of crime all they want (and for as long as their grant money holds out). But a three-time violent criminal needs to be removed from society -- permanently. It's as simple as that. And the American people know it, even if their courts, parole boards and legislatures have been slow to catch on."…