Wonder Land

LAWS CALL CRIME OUT ON STRIKES; PROTEST IS FILED

There are said to be people out there who can describe all of life in terms
of baseball metaphors. And why not? The rules of the game are clean and
clear to anyone, even criminals. So it came as no surprise that public
officials who had emptied the bench in the war on crime but were still
losing turned to baseball for a strategy. Thus was born in the 1990s the
wide enactment of anticrime laws know as Three Strikes and You're Out; 25
state legislatures created Three Strikes laws.

The plague of powerful drugs in public places, however, became the sport of
thugs, distributors and pushers who played by no one's rules; so for them
Congress created a special rule around public housing projects: One Strike,
You're Out.

Briefly, the former laws say that if you get convicted of three felonies,
you risk being sent to jail for life; the other law, passed by Congress,
said public housing tenants could lose their lease, get kicked out, if a
family member or guest did drugs in the project. The Supreme Court just
ruled, 8 to 0, that the One Strike law is constitutional, and this past
week it agreed to hear a challenge to California's very strict Three
Strikes law.

The law of course is its own kind of game, and the lawyers who brought
these cases made sure the conflict between the laws and the defendants of
record was teed up for the public as a battle between Goliath and grandma.

The defendant-tenants in the public housing case, from Oakland, included a
partially paralyzed 75-year-old, a diabetic 71-year-old and a 63-year-old
grandma (whose eviction was dropped "after her daughter was incarcerated
and thus no longer posed a threat to other tenants"). The defendant in the
California Three Strikes case is Leandro Andrade, and virtually any press
report you read will make sure you know that his third strike, for which he
received a life sentence, was stealing nine videos from two Kmarts. But
more on Mr. Andrade's idea of citizenship later.

What interests me most is how in America in the late 20th century we
arrived at the point where we consented to such draconian measures.
California's hyper-strict Three Strikes law, after all, emerged from an
initiative that received 71.8% support. Congress passed the kick-'em-out
public housing law in 1996 not only with broad Democratic support but
applause from President Bill Clinton. Why?

Ejecting 75-year-old gents from public housing really does sound like rough
justice, but the details are at least interesting. The authorities found
his caregiver and two friends doing cocaine in his apartment, and gave him
a warning. Same thing happened again, and another notice. When the three
party animals got caught coking again in the apartment -- all this within
two months -- eviction followed.

If you live near the Presidio in nearby San Francisco and read about this,
it's really an outrage. If you live on the same floor with the old guy,
it's deliverance. Congress passed the amazing One Strike law, giving
authorities discretion to evict, because so many projects had become
dangerous, drugged-up hellholes for the people who lived there. Here's how
an 18-year-old in a St. Louis project described night life two years before
Congress acted: "The shooting starts about 7 p.m., and there are about five
shots an hour."

When the Andrade case comes before the Supreme Court, we'll all hear how
the Ninth Circuit ruled that his life sentence for boosting videos from
Kmart was a gross violation of the Eighth Amendment. But if you take the
time to read into the decision, you find the dissenting judge's biography
of Leandro Andrade.

Beyond a lifelong addiction to heroin, he had ". . . two separate federal
convictions for transporting marijuana, dismissal of seven state
residential burglary charges and a parole violation for escape from federal
prison. . . . Before his most recent conviction Appellant had been in and
out of state or federal prison a total of six times." The scholarly word
for this is recidivism, i.e., we know for sure that Citizen Andrade will
swipe stuff from people for years. Or, as present, sit in prison for years.
No middle option is obvious to me.

When the Ninth Circuit overturned the public housing law, it said people
were getting evicted "without any relationship to individual wrongdoing."
The salutary news there is that the Ninth Circuit still recognizes the
possible existence of "individual wrongdoing." These extreme laws exist
because so many courts, attorneys and opinion-formers spent so many years
rationalizing and ruling away any common understanding of what constitutes
individual responsibility for wrongdoing.

Liberals and libertarians blurred the border separating personal lifestyle
choices from clear crimes, and effectively absolved the latter. Against
that intellectual morass, the One Strike law has a line almost quaint in
its intent; project residents possess a "right to peaceful enjoyment of the
premises."

Put less elegantly, people have a right not to live in disorder. Disorder
in a neighborhood as dense as a public housing project wears down the good
people; it saps their energies, and at the margin the most vulnerable go
from good to bad.

There is no danger of America becoming Singapore, with laws against burping
or daydreaming in public. In the U.S. it's socially acceptable now to do or
say almost anything, and while that "anything" is itself the subject of
debate, it doesn't yet include crime sprees.

If the day arrives when we don't have to reduce our laws to balls and
strikes, I'd be happy to have the U.S. Supreme Court toss California's law
- -- and a stirring opinion it will be . . . from Justice Scalia's granddaughter.