THREE-STRIKES' ECONOMICS

As California's "three strikes" law catches more nonviolent offenders in
its snare, support is growing to amend it so the third strike must be
violent to trigger a lengthy sentence.

Even in Orange County, where 80 percent of voters supported the 1994 ballot
initiative, Proposition 184, that shaped the law, many residents are
concerned about its unintended consequences, according to a Register
frontpage article earlier this week.

Passed by voters in the wake of the brutal slaying of Polly Klaas by a
career criminal, "three strikes" mandates a 25 years-to-life sentence for a
third felony by anyone with two previous "serious or violent" felony
convictions.

The problem is, while the first two strikes must be serious crimes, the
third strike can be for nonviolent offenses such as drug possession or
writing bad checks. It is the most severe three-strikes law in the nation.

Bob Goss, an assistant public defender in Orange County, told us the law's
current safeguard of discretion - judges and prosecutors have leeway so
that, say, a minor drug offender doesn't face decades in prison - is
inadequate. Local district attorneys almost always go for the harshest
possible sentences, he said, to burnish their tough-on-crime image.

As a result, Mr. Goss said "even guys with barely useable amounts of a
narcotics" often face harsh penalties because of previous strikes received
10 or more years ago. It's no longer unusual to hear that the theft of a
slice of pizza or carton of cigarettes triggers a draconian third-strike
punishment. The California Department of Corrections reports, in about 70
percent of cases, the third strike is not a "crime against persons."

The practical answer is straightforward. The law's "purpose was to put away
people who are dangerous to society," Mr. Goss told us. "I feel it should
apply to people who continue to commit" violent crimes. In other words, the
third strike should be like the first two strikes - applying only to
"serious and violent" felonies.

The problem is political. Many Democrats and Republicans fear that
reforming the law will enable their opponents to portray them as soft on
crime. There are "a lot of political cowards," Assemblyman Scott Baugh,
R-Huntington Beach, told us.

Because of the political reality, Mr. Baugh says the Legislature needs to
take "baby steps" toward reforms such as supporting a study to evaluate the
unjust applications of the law.

When crafting revisions to the law, legislators should pay heed to the
advice of David Friedman, a professor at the University of Santa Clara Law
School in San Jose. He told us the three-strikes law, as it is currently
written, reflects what economists refer to as the problem of "marginal
deterrence."

This economic idea, he said, is best expressed by the old English proverb,
"As good be hanged for a sheep as a lamb." As Mr. Friedman wrote in a 1993
paper: "A thief has the opportunity to carry off one animal from the flock.
If the penalty is the same whichever animal he chooses, he might as well
take the most valuable."

What dies this mean for three-strikes laws? If a criminal faces the same
punishment whether he shoplifts or robs a bank, he is more likely to commit
the higher payoff crime.

And if getting caught with a lesser felony will automatically yield a
three-strike punishment, the criminal will be more apt to kill his victims
and pursuers, according to Mr. Friedman.

This simple economic analysis, along with the issues of proportionality and
fairness, should propel the Legislature to fix a law that increasing
numbers of Californians view as broken.

Checked-by: derek rea