COURT TAKES ON 'THREE STRIKES'

One of the problems with a really bad law is how long it can take to get
rid of it.

The Volstead Act of 1919 (Prohibition) created bloody criminal empires and
turned American cities into war zones for 14 years. Georgia's county unit
system disenfranchised urban voters, split the state into an absurd number
of political fiefdoms and fed the corruption of courthouse gangs for
decades. Alabama's constitution has stifled social, economic and moral
progress for a century.

Now the get-tough politics of crime, reinforced by the constitutionally
suspect drug war zealotry of the 1980s, has left as one of the more
unsavory legacies of that era a slough of mandatory sentences such as
"three-strikes" laws that all but eliminate discretion from the judicial
process.

The result has been almost universally unfortunate, and in some instances
outrageous. Prisons that should be occupied by rapists, murderers, child
molesters and Enron executives are instead packed to bursting with too many
small-potatoes offenders. A petty thief gets 25 to life for stealing three
golf clubs; a heroin addict with a record of non-violent theft and drug
charges gets life without the possibility of parole for 50 years for
stealing $153 worth of videotapes; a repeat shoplifter is sentenced to 25
to life for stealing a bottle of vitamins.

Now the U.S. Supreme Court will at last take a look at such laws in
California, and the results of the high court's deliberations could
reverberate across as many as 40 states.

There are a couple of important distinctions here. For one thing,
three-strikes laws are not the same as habitual offender statutes, which
are not under scrutiny. The law rightly recognizes that even minor crime,
committed again and again, has a corrosive effect on society and that the
punishment should, to a reasonable extent, reflect cumulative guilt.

For another, bad law is not necessarily unconstitutional law; the court's
concern, at least in principle, is only with the latter. Specifically, the
justices are being asked to consider whether a penalty grossly
disproportional to the offense violates the Eighth Amendment prohibition
against cruel and unusual punishment, and that could go either way.

In any event, a court ruling is just one way a bad law gets scrapped -- and
make no mistake, this is bad law. It has in common with all "zero
tolerance" and "send a message" legislation the breathtaking stupidity of
anything posing as a simple solution to a complex problem.

- -- Dusty Nix, for the editorial board