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CRIME AND PUNISHMENT--AND POLITICS : How Many Prisons Must We Build to Feel Secure? : Leadership: 'Three strikes' isn't as tough as changing the climate for crime.

January 17, 1994|JONATHAN SIMON | Jonathan Simon is an associate professor of law at the University of Miami. His book "Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990" has just been published by the University of Chicago Press

"Three strikes and you're out," the proposal to imprison three-time felons for life, is drawing considerable attention from politicians. Governors as different as Mario Cuomo and Pete Wilson, who share little more than bad polling numbers and impending elections, have rushed to embrace the proposal. This is not surprising. The idea, like the slogan, is simple, satisfying to express and capable of channeling the overwhelming tide of popular anger about violent crime rising in America. Any politician who does not ride on this wave has good reason to fear being dragged under it.

The arguments against the proposal are solid, persuasive and boring. Any effort to really enforce such a law will require a massive increase in prison spending when states like California and New York have been slashing budgets for years. Wilson promises to build six more prisons on top of the five he has already built on top of those built by his predecessor. Cuomo, too, promises to wring New York's budget dry to pay for more cells.

Life sentences involve a lot more whimper than bang. The twentysomethings with a seemingly insatiable appetite for violence become forty-, fifty- or sixtysomethings. Their propensity for violence goes down but the cost of maintaining them (in human as well as fiscal terms) goes up. In the meantime, correctional officers will have to deal with a burgeoning population of inmates with little left to lose.

So many violent offenders are now being released without serving their full terms because mandatory sentencing laws for drug offenders have already filled our prisons, forcing early release of felons without mandatory minimums. "Three strikes" would add yet another monolithic mandatory sentencing policy that robs our courts of the ability to make common-sense distinctions of degree between crimes and criminals.

But, look, don't bother the public with the fiscal details, or the fact that plenty of horrible crimes, like the rampage on the Long Island commuter train, get committed by people with no record of felonies. Like the ball game from which the slogan derives, the "three strikes" proposal has an almost mythic quality that sustains its capacity to endure in our hearts over many seasons of disappointment. This is the stuff that dreams (and governors) are made of. Indeed, variations on this theme, life terms for "habitual" offenders, have been around since the 19th Century and in some form or another sit in the laws of virtually every state in the union, the relics of earlier crime panics and campaigns.

Before this wave crests, leaving behind yet more evidence for the proposition that Lincoln should have been more worried about fooling most of the people most of the time, two aspects are worth considering.

While "three strikes" may seem to fit in with the "get tough" policies toward crime legislated over the last decade or two, it really reflects an admission of bankruptcy on the part of that philosophy. They used to tell us that tough sentences would cut through the confusing messages of the "rehabilitative" penal philosophy, and that the promise of stiff punishment would deter crime. Now, billions and billions of dollars later, "three strikes" implicitly acknowledges a fact too painfully obvious to conceal any more: Deterrence did not work to prevent crime. And, guess what? The new solution to the old solution looks like the same solution: more prisons.

Californians, like people all over America who are toasting the "three strikes" proposition, are expressing genuine frustration over the loss of personal security in this country. Contrary to the received wisdom that Americans want their government to go away and leave them alone, millions of Americans are saying that they expect government to take an active role in improving the conditions that make life so fearful, and they are willing to be taxed if they believe it will go to a serious effort.

What form should that effort take? Criminal-justice experts, liberal and conservative, share a surprising degree of consensus on programs that will have both short- and long-term impacts on public safety, such as: targeting early intervention at juvenile offenders; improving drug treatment and education programs in prison so that first-time felons do not graduate to careers in crime; and boosting police presence in the schools, parks and shopping districts where law-abiding citizens must be made to feel secure if our cities are to remain economically viable.

None of these proposals has anything like the magic ring of "three strikes and you're out." Creating a thoughtful strategy to reduce crime and increase public confidence in the safety of their communities will be as boring as a pitchers' duel. The question is whether the political leadership and the taxpayers will give the serious, low-key approach a try before or after the next multibillion-dollar monument to political mendacity is constructed.

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