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CRIME AND PUNISHMENT--AND POLITICS : Tough Sentencing Takes More Than 'Three Strikes' : Incarceration: Some proposals, like life for first-time rapists, won't work.

January 17, 1994|JOSEPH M. BESSETTE | Joseph M. Bessette is a professor of government at Claremont McKenna College and past acting director of the U.S. Bureau of Justice Statistics

After the arrest of a suspect in the kidnaping and murder of Polly Klaas, Gov. Pete Wilson described him, in a statewide broadcast, as "a career criminal with a long, long record of habitual sordid crimes and violence. This animal should never have been at large on the streets of California." Wilson then asked for "tougher laws . . . to make our cities, our suburbs and our small towns safe again."

These new laws would require prisoners with violent crime convictions to serve more than 50% of their sentences (the current norm), give life sentences to three-time felons and send forcible rapists, child molesters and some arsonists to life in prison even for a first offense. About this last group Wilson said, "What we need for them is a simple law: One strike, you're in--for life. In good conscience, how can we risk releasing them to claim another victim, to traumatize another life?"

Wilson's political opponent, Assembly Speaker Willie Brown, lost no time in expressing his disdain for the public pressure for tougher punishment: "The overwhelming majority of the public are in a mind to put people away forever for jaywalking, period." Cognizant, however, of his inability to resist the popular tide for tougher punishments, Brown has indicated his approval of putting a "three strikes and you're out" measure on the June ballot.

Why, it might be wondered, would Brown want to allow the public to do something that he opposes--to satisfy, as he sees it, its passion for punishment? The answer seems clear enough. Brown's stratagem enables him to wash his hands of the matter and thus to free him and his liberal colleagues in the Assembly from the responsibility of actually debating the soundness of California's punishment policies.

If, as Brown apparently believes, current policy is sufficiently severe (or perhaps too severe), then he has a profound responsibility to make that case in the Legislature and in the public arena. Indeed, in a democracy, elected officials have no higher duty than to promote the public interest, even against strong tides of public opinion.

I suspect, however, that Brown well knows that current punishment practices in California are not defensible, that no persuasive case can be made for the following facts (all from official state publications):

* Of all those arrested on felony charges (crimes such as homicide, rape, robbery and burglary that can result in incarceration for at least year), only 22% of those convicted are sentenced to state prison for a year or more; most serve less than a year in a local jail, and some get no incarceration at all. Of those convicted of violent crimes, only 25% end up going to state prison.

* California has more than 2 1/2 times as many offenders (390,621) serving out their sentences in the community, on probation or parole, than are incarcerated in all its state prisons and local jails (145,225).

* Of the 50,000 felons released from state prisons in California each year, half have served less than one year and four months behind bars (which includes time in custody pending or during trial). Median time served for specific crimes: homicide, three years, four months; robbery, one year, 11 months; assault with a deadly weapon, one year, 11 months; rape, three years, five months; lewd act with a child, three years, two months; arson, one year, nine months.

Given this reality, is it any wonder why the Speaker and his ideological allies have opted not to lead a serious public debate on crime and punishment?

Less surprising, of course, is the governor's focus on tougher punishment. Here is a case where a politician's electoral interests largely conform to the public interest he is charged with serving. We will have more justice in the criminal-justice system, greater citizen confidence and enhanced public safety if more convicted felons go to prison than is now the case, and if those who do go serve longer than they now do.

There is, however, one aspect of Wilson's rhetoric that ill serves the case for a reasonable toughening of the criminal-justice system. This is his call for life in prison for first-time rapists, child molesters and some arsonists. Here Wilson demonstrates an all too common tendency of conservative politicians to propose punishments so severe that many reasonable people--including jurors, judges, and even some prosecutors and police--will resist their automatic application in every case. Can we really be confident that those responsible for prosecuting and convicting wrongdoers would unerringly carry out their duties if they believed that in many cases life in prison would be an excessively harsh punishment for the first offender?

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