THE LAW STRIKES OUT

Locking up three-time offenders penalizes the justice system.

For most Californians, the "three strikes and your out" law, under which
criminals found guilty of three felonies can be put in prison for 25 years
to life, is not especially controversial. What could be more sensible than
to take "career criminals" off the streets, even if it is somewhat
expensive? And if this tough approach to crime is reducing the incidence of
serious crime is reducing the incidence of serious crime, as Attorney
General and gubernatorial candidate Dan Lungren proclaims, how could anybody
but a congenital criminal coddler have any serious objection?

As the law is implemented, however, evidence is mounting that it is and is
going to be much more expensive than most people had anticipated, that
serious injustices are beginning to occur, and that the effect of the "three
strikes" law on how much crime is committed is questionable.

And, most important, a small but growing number of people and organizations
is mobilizing to question and, they hope, to change the law in California.

I was struck by the intensity and breadth of opposition to the "three
strikes" law at a meeting recently held in Orange and sponsored by the
relatively young Santa Ana-based organization Families to Amend California's
Three Strikes (FACTS). I had expected that perhaps a couple of dozen people
would attend. But the meeting place at St. Joseph Center was filled with at
least 400 people who showed up on a Thursday evening to listen to lawyers,
criminologists, former judges, a public defender a former deputy district
attorney, family members of "three strikes" prisoners and a journalist
discuss the shortcomings of the law.

Many people in the multi-racial audience had made the drive from Los Angeles
- - and one from as far away as Bakersfield - because they didn't know of
serious anti-" three strikes" organizing in their area and were willing to
go where organizing was taking place.

The crowd was intense, and many in it had their own stories to tell. Most
expressed surprise that the movement seems to have begun and has coalesced
in largely conservative Orange County, but Orange County surprises a lot of
people.

Former Orange County Judge Dan Dutcher's objections to the law, for example,
are legal and constitutional. He just doesn't see the equity in a law that
makes it possible for a person to get none years in prison for rape and 25
years for stealing a pizza. Yet that is not only possible, it has happened.

Judge Dutcher, one of the speakers at the meeting, suggests that it be
called simply the "strikes" law. He points out that the intensification of
punishment under California's law doesn't begin at three "strikes," but at
two, and that the law influences police and prosecutors, many of whom, he
says, consider whether a charge will constitute a "strike" or not (and more
often than not want it to be one) from the first time somebody comes into
contact with the criminal justice system. A former prosecutor at the meeting
had the same impression.

CALIFORNIA'S TOUGH LAW

Doug Kieso, a lawyer and Ph. D. candidate in criminology at UCI who has been
the prime organizer of FACTS, explained in his remarks the way in which
California's law is unique among states.

Most Californians, when the initiative was on the ballot in 1994, figured
the point was to put away career criminals like the killer of Polly Klaas
before they struck again. Three violent crimes, mot figured, might not
constitute a career exactly, but should be enough to trigger some pretty
severe punishment. Besides, plenty of criminals probably never got caught
for some of the violent things they did, so three convictions probably
equaled lots of actual crimes (this is one of Dan Lungren's arguments).

But California's law is not activated only by violent crimes, such as
murder, rape or assault. Non-violent and even non-serious felonies,
including petty theft under some circumstances, drug sales or possession
with intent to sell, or burglary of an occupied dwelling when nobody is
home, can be counted as a strike.

Although 26 states and the federal government have enacted different
variations of laws that come under the general "three strikes" designation,
California is the only one in which a non-serious, non-violent felony can be
counted as a strike.

In Washington, for instance, enhanced punishment doesn't kick in until a
third conviction related to a short list of clearly violent crimes. Only
seven states have enhanced punishment for a second strike and only
California includes such a wide range of non-violent felonies that can count
as a strike.

Some states include drug dealing as a "strikeable" offense. North Carolina
requires a separate indictment to the effect that a defendant is a "violent
habitual offender" to trigger enhanced punishment on a third strike.

Most other states have a time limit on the "three strikes" (in most
instances it takes three violent crimes within five years to activate the
severe penalties). In California there is no time limit, and the law applies
not only to adults but to 16-and 17-year-olds. Each count in a single
incident can be counted as a strike. Any unlawful act while in prison, like
possessing a syringe, is a felony and a strike.

That means somebody who got into fights or scrapes and got arrested and
convicted on two counts as a teenager could straighten himself out, live
pretty straight for years, make one more mistake and go to jail for life.

That's what happened to Sue Reams' son. She's an Irvine housewife. When her
son was a troubled teen-ager with a drug problem, Sue was a "tough love"
parent who thought she was helping him by making sure to call the cops when
he stole from her and from her neighbor. He was convicted on two counts of
residential burglary and severed time, but he was still addicted to drugs. A
few years later, he was a co-defendant in a case where he was standing 30
feet away from the person who actually made the sale to the undercover cop.
But he was convicted, and it was his third strike.

Christy Johnson's husband had served time, before he met her and they were
married, for two counts of second-degree robbery, with no weapon involved.
He held a job and raised a family, was a good father and husband. But he
hadn't licked his drug problem. Years later, he was convicted of possession
of drugs with intent to sell - not for actually selling, but for having
intent - and that was his third strike. He's in prison for life.

"When he was first arrested," she told the audience, "I told him to put his
feet up and read a book, because there was no way he would be in there for
long on what was obviously a set-up. This is the United States of America. I
don't say that anymore."

How many Californians thought those were the kind of people we would be
putting in jail for life when they voted for "three strikes"?

THE 'THREE STRIKER' POPULATION

As of the end of March there were 4,076 "third strikers" in California
prisons - people serving 25 years to life after a third felony. According to
Doug Kieso, only 39.2 percent of these third strikes were for "crimes
against persons." Included among the 4,076 were 227 people whose third
strike was for petty theft with a prior, 100 for receiving stolen property,
387 for possession of a controlled substance and 240 for possession of a
weapon. By comparison, in Washington, which has had a "three strikes" law a
few months longer than California, only 85 third-strikers were in prison for
life as of September 1997.

Carl Homes, head of the Orange County public defender's office, put it
bluntly that evening. "We've been played for suckers," he said. "Nobody
thought we were going to be sending people to prison for life for petty
theft or drug possession, but we are filling up the prisons now with lifers
who are essentially drug addicts."

Proponents of the present system say there's a built-in protection to make
sure sentences are not out of proportion. Judges have the discretion to
decide whether or not an offense qualifies from a June 1996 court decision,
People v. Romero, which allowed judges to exercise that discretion for
non-violent offenses under certain circumstances.

But Holmes says that because of political pressures most judges are fearful
of using the discretion they have not to count a non-violent felony as a
third strike. Ex-Judge Dutcher agreed. If anything, it appears prosecutors
are going out of their way to make sure they file charges that can be
counted as a strike. Felony filings are up 45 percent since the law passed
in Orange County, Holmes says, at a time when all the statistics claim that
crime is declining. His office has handled 520 third strike cases since 1994
- - people going to jail for 25 years to life - and 70 percent of those third
strikes were for nonviolent, non-serious crimes.

ROOTS OF PUBLIC SENTIMENT

All of it was too much for David Bristow, a former deputy district attorney
in San Bernardino who quit after being asked to prosecute one too many drug
users for a third strike that would have put them in prison for life.

Bristow explained some of the background behind the uniquely onerous
California law: Mike Reynolds was the Fresno father who became the prime
"three strikes" activist after his daughter became a crime victim in 1992.

He tried without success to get the Legislature to pass a "three strikes"
law similar to the present one. He told several groups that they had run the
numbers and figured that if you confined the extra punishment provisions to
serious and violent felonies, you wouldn't put enough people away to affect
the crime rate. So they made it tough.

Then came the Polly Klass murder, and within weeks Reynolds' nascent
organization had the signatures for his version. Less stringent versions
were under discussion, but the public and political mood was to go for the
toughest one around.

Bristow also raised a concern some police officials have raised, that some
criminals facing the possibility of a third strike might go ahead and kill
witnesses, figuring that might make it less likely they would be caught, but
if they were caught the punishment wouldn't be stiffer anyway. It seems
likely this is happening to some extent, but I haven't run across a
systematic study that confirms or disproves it with a high degree of
reliability.

LITTLE IMPACT ON CRIME RATE

So, after all is said and done, the salient question becomes, has
California's tough approach greatly mitigated the crime rate?

I first have to point out that the crime statistics that are trumpeted every
few months are relatively useless and possibly misleading, though they're
what we've got to work with. That general concern aside, the most widely
accepted statistics - official reports from the California Department of
Justice and the FBI Uniform Crime Reports - suggest that the "three strikes"
law has had little if any discernible impact on the overall crime trend line.

As Kieso explained - and as every criminologist who spoke at a Chapman
University conference on economics and crime held earlier this year agreed -
what the published data show is that crime began declining in California in
1991, and has been declining ever since. The "three strikes" law was passed
in 1994. Crime has been declining at about the same rate since it was passed
"and there has been no increase in the rate of decline. If "three strikes"
were going to have an impact, something should have showed up by now.

Furthermore, if you believe the published statistics, crime has been
declining throughout the United States at about the same rate since about
1991. Yet only about half the states have enacted any version of a "three
strikes" law. In fact, as the Justice Policy Institute in San Francisco
points out in a 1997 study, "states that have not enacted ['three-strike']
laws have actually experienced a slightly greater drop in crime than states
that do have such laws."

That doesn't necessarily mean "three strikes" laws cause a smaller decrease
in crime. But it should throw into question the impact of the laws.

THE RISING COST TO TAXPAYERS

Most people estimate the cost of keeping somebody in prison for a year at
about $25,000, and the cost of building a new prison cell is pegged at about
$110,000. Thus, Californians pay about $725,000 to keep a third-striker in
jail for 25 years.

But the cost per year is almost certainly understated. It doesn't include,
for example, the cost of lawsuits against prison guards or the settlements
paid as a result of these suits, all of which are borne by taxpayers. The
costs of special vehicles, weapons and special systems - just this week a
business article told of $1.3 million worth of fingerprint software sold to
the state prison system - are not included in the annual $25,000 per year
for 4,000 third-strikers, we're looking at more than $100 million extra a
year, to keep them locked up. There are about 30,000 prisoners in California
with enhanced second-strike sentences, serving double the normal sentence.

All this "strikes" spending is on top of the $6.1 billion or so a year
Californians now spend on building and running prisons, a cost that has
triple since Pete Wilson became governor.

Most criminologists believe that as people become older they become less
prone to commit crimes, especially violent crimes. So keeping aging
prisoners locked up all their lives means having them paid for by taxpayers
when they have become less potentially dangerous to society. And there's no

question that when prisoners get older, their medical problems and
associated costs tend to increase - FACTS says the average annual cost of
keeping a prisoner older than 55 is triple the cost of keeping a younger
prisoner.

As more people are put behind bars because of California's "three strikes"
law, we can expect these costs to multiply. We are only beginning to see the
full cost of the law.

A SECOND LOOK

California's "three strikes" law deserves a second look. The basic idea
behind it - to impose extra punishment on violent criminals - might well be
good public policy whether it really reduces crime or not. But it should be
confined to violent and serious crimes. There should probably be a time
period within which the "three strikes" punishments would be activated. That
way three violent crimes within a certain period (five years, ten?) would
bring on extra punishment rather than two teenage mistakes and a drug
possession 20 years later. And the "three strikes" law should apply only to
adults.

State Sen John Vasconcellos, D-San Jose, introduced S.B. 2048 earlier this
year, which would limit the extra "strikes" punishment to violent or serious
felonies. But since the law originally passed through an initiative, it
would have taken a two-thirds vote of both houses or a new initiative to
pass it.

There was little chance of that happening now, so he changed it to mandate a
study of the costs and benefits of the law, to be conducted by the
legislative analyst in conjunction with the Judicial Council and the
University of California. That bill passed the Senate and is now in the
Assembly.

A decent cost-benefit analysis would be a good start. But more extensive
reform would be better. Organizations like FACTS, which oppose or question
the California law, have their work cut out for them.(The FACTS website is
http://www.members.labridge.com/cats. with links to other prison-reform site
and to the Department of Justice website, which has an excellent
"three-strikes" overview.)

Checked-by: Melodi Cornett