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Commentary

Three-Strikes Law Hits Its Target

September 28, 2004|Edward J. Erler and Brian P. Janiskee | Edward J. Erler and Brian P. Janiskee, fellows at the Claremont Institute, are political science professors at Cal State San Bernardino and the authors of numerous law review articles on the three-strikes law.

On Nov. 2, voters will be asked to decide whether California's tough three-strikes law should be weakened.

Both proponents and opponents of Proposition 66 agree that in the 10 years since three strikes became law, the crime rate has fallen dramatically, nearly 45%. Proponents of Proposition 66, however, argue that crime rates had already begun to drop the year before three strikes was adopted and the decrease cannot therefore be attributed to that law. Rather, community policing, an improved economy, gang truces and a diminishing number of young men in the population are the real reasons crime has decreased.

These conclusions, however, defy common sense. Criminologists have told us for years that career criminals are responsible for most of the wrongdoing in society. And that was exactly whom three strikes targeted. One of the law's principal architects, then-Assemblyman Bill Jones (R-Fresno), stated the simple logic behind three strikes: "If we could incarcerate the small percentage of criminals who commit the vast majority of crimes in our state, we could effectively lower the crime rate and save thousands of lives."

The three-strikes law was passed as an initiative in 1994 by an astonishing 72% of the electorate. In a state as diverse as California, this represents virtual unanimity.

The initiative was principally a reaction to the alarming increase in crime that took place in the 1970s and '80s. Throughout these two decades, the Legislature had steadfastly refused to pass effective anti-crime legislation. The final straw for the public were the murders of Kimber Reynolds in Fresno and 10-year-old Polly Klaas in Petaluma. Both killers would have still been in prison had three strikes been in place.

Liberals have one main point of contention with the way the law works: the fact that first and second strikes must be serious or violent felonies but a third strike may be assigned for any felony. Proposition 66 would mandate that third strikes be serious or violent felonies, while reducing the number of crimes that qualify as serious or violent. Most notably, residential burglary would no longer be a "strikeable" offense and the definition of what constitutes great bodily injury (and hence a serious or violent felony) would be weakened.

Three-strikes opponents argue that it is "cruel and unusual punishment" to impose 25-year-to-life sentences for stealing a bottle of vitamins or a slice of pizza or for merely purloining videotapes. They also argue that the law was sold to the public as a way to get the worst criminals off the streets, but because the third strike is most often nonviolent and nonserious, it isn't measuring up.

What is conveniently ignored, however, is that the third felony, even in the case of stolen vitamins or videotapes, follows at least two serious or violent felonies. It is difficult to see the injustice of such sentences for career criminals who have been given multiple chances to reform but are either unwilling or unable to recognize their obligations to society and the rights of fellow citizens.

It's also important to note that no third-strike sentence is mandatory. Both prosecutors and judges have discretion in dealing with offenders. That can mean a reduction in the number of strikes or a switch in the charges, from felony to misdemeanor, for the sake of justice. As to the idea that allowing long sentences for a nonviolent or nonserious felony violates the Constitution's ban on "cruel and unusual punishment," the U.S. Supreme Court held in 2003 that states had considerable discretion in determining punishment for recidivist criminals and that California's three-strikes statute met constitutional muster.

California has the toughest three-strikes law in the nation, and the voters meant it to be tough. It originated as an anti-crime measure that expressed zero tolerance for all crime, not just violent crime.

Not surprisingly, California has had the steepest decline in crime rates in the nation over the last decade. Yet Proposition 66's proponents would have us believe that there is no connection between crime and punishment.

Californians know better. We trust that the good sense of the voters will prevail once again in defeating this attempt to weaken effective crime control legislation.

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