Three Strikes: Can We Return to Rationality?
Vitiello, Michael, Journal of Criminal Law and Criminology
California's widely publicized "Three Strikes"(1) legislation was the culmination of over a decade of "get tough on crime" legislation.(2) The story surrounding Three Strikes is symptomatic of the excesses of our nation's crime prevention policy during the 1980s and 1990s.
Despite a threefold increase in the nation's prison population between 1980 and 1994,(3) Most Americans felt more vulnerable to violent crime than they did a decade earlier.(4) At a time when crime rates were declining modestly,(5) politicians in several states seized on the fear of crime as a powerful political issue. For example, in a close gubernatorial race, Governor Pete Wilson's support of Three Strikes provides a case study of sound-bite electioneering substituting for careful analysis of frustratingly complex social and penological problems.(6)
Two years of experience with Three Strikes in California has not quieted debate about the efficacy of the law. Proponents claim victory based on lower crime rates since its passage(7) while opponents point to widely reported cases, involving minor third strikes, leading to grossly disproportionate prison terms.(8)
While a number of jurisdictions have recently adopted multiple offender statutes, California's is the most draconian.(9) Section II of this article examines the key elements of California's Three Strikes legislation and the events that led to its adoption.(10) Section III then considers a significant and rapid change in penological theory that has taken place in less than a decade. During the 1960s through the mid-1980s, legislatures, judges and commentators abandoned the rehabilitative ideal of the criminal justice system. A broad political coalition oversaw a return to retribution as the justification for punishment.(11) Renewed interest in multiple offender statutes like the Three Strikes legislation signals another dramatic shift from retribution to incapacitation and, to a lesser degree, deterrence as the primary justifications for punishment.(12)
Incapacitation and deterrence are supported by utilitarian arguments; as such, they rest on factual premises. Utilitarian justifications for punishment rest on the premise that the pain inflicted by punishment is justified only if greater good results from its imposition.(13) For utilitarians, punishment should not, therefore, be imposed if it will not lead to a net benefit.
Proponents in California and elsewhere have justified the massive increase in prison construction by reference to cost benefit analyses.(14) Section III examines whether Three Strikes can deliver on its promised benefits.(15) Careful review of the claimed benefits of incapacitation suggests that those benefits have been exaggerated.(16) Franklin Zimring and Gordon Hawkins' serious study of widespread incapacitation during the 1980s casts doubt on whether Three Strikes produced a concomitant reduction in crime.(17) Their conclusions should cause hesitation in wholesale adoption of legislation like Three Strikes. Even if Three Strikes has led to a reduction in crime, we are paying far too much for those benefits.(18)
A great deal has already been written about Three Strikes, most of it negative and much of it forecasting doom.(19) Critics of Three Strikes rightly point to some potentially disastrous effects. Three Strikes has already exacerbated the racially discriminatory effects of sentencing policy.(20) Moreover, the projected costs for prison construction and operation are staggering,(21) and absent other ready revenue sources the legislature may be forced to shift funds from education to corrections.(22)
Section IV discusses a number of events that may signal rational reform of Three Strikes.(23) Rational debate was largely muted during passage of Three Strikes. If we listen carefully, we can begin to hear voices of reason. In light of that fact, section IV closes with some proposed legislative reforms that may curb some of the excesses of the penological reform of the past decade. …