3 Strikes: Give It the Thumb

March 25, 1994|By ELLEN GOODMAN

San Francisco -- I have never been a fan of jocktalk in political life. The endless campaign lingo about slam-dunking opponents and hitting questions out of the ballpark has left me on the sidelines.

But I am even more uncomfortable when sporting life stops being a metaphor and starts becoming public policy. This is exactly what is happening with the new favorite anti-crime legislation known as ''three strikes and you're out.'' This is criminology according to Abner Doubleday.

At heart, the Three Strikes bills are meant to send third-time felons -- in some places, violent felons, in other places, all felons .. -- to jail for life without parole. This is an idea that is popular with everyone from California Governor Pete Wilson to New York Governor and former center fielder, Mario Cuomo. It's even popular with jogger and golfer Bill Clinton.

The first of the Three Strikes proposals passed a Washington state referendum last fall. A second variation on the law went into effect here in California two weeks ago. It mandates 25 years to life or triple the usual sentence, whichever is more.

There are bills or ballot initiatives in 30 state legislatures and in both branches of Congress. Georgia, not to be outplayed, just passed a bill that will put a Two Strikes proposal on the state ballot next fall.

I am not surprised at the cheers this idea has received. The real national pastime -- one that I share -- is watching and worrying about crime. Crime may not be on the rise in the statistics. But it is on the rise among the young. It's on the rise in the news and in the polls that track our concerns.

We worry now about random crime, about violent crime, and Three Strikes laws have become the easiest way for legislators to prove that they are on our team.

But life is more complicated than baseball and so is crime. Not every felon warrants the same punishment. Some first crimes deserve much harsher sentences than they get. Some third crimes deserve lighter sentences than Three Strikes would mandate.

In Washington, for example, both Cecil Emile Davis and Larry Lee Fisher were caught under the same new law. Davis had attacked two people with an ice pick and severely beaten two others before he was picked up for allegedly kidnapping, raping and cutting another woman's throat.

Fisher, on the other hand, was charged for the third time with robbing a store. He took off with $151 after telling the clerk that the finger in his pocket was a gun. None of his crimes involved violence. Do they both deserve the same life sentence?

James Alan Fox, the dean of criminal justice at Northeastern University, puts it this way: ''Punishments should not just fit the crime, but the criminal.''

That subtlety is rapidly being lost in this sports arena. Under the proposed Georgia law, two-time losers as young as 13 could become lifers. Under one Illinois bill, someone who passed three bum checks in a year, and was caught each time, could be jailed forever.

If Three Strikes sounds like it's tough on crime, it is really tough on judges, and even on police. A law that makes sentences mandatory rather than presumptive, an absolute rather than a general rule, takes away the judges' role in sentencing. They are stripped of the very quality we choose them for -- their ''judge''-ment.

As Dean Fox says, ''Even in baseball umpires have discretion on the third strike. . . . I'd like judges to have at least as much discretion as an umpire.''

The law in California already has police worried about facing desperate criminals with two strikes and nothing to lose. It has others talking about geriatric prisons filled with people whose crime prime is long past.

Will these elders fill space that should be left for younger, ''active'' criminals? Will less dangerous people use up money that should be allocated to crime prevention?

This is a time when as many people memorize crime reports as batting averages. Two-time murderers and rapists released to rape again soar to the top of the news. No politicians want to face charges that they let any criminals walk -- into their town.

But to be rational about criminals is not to be soft on crime. Violent criminals -- first- as well as third-timers -- should indeed be punished harshly. They should be punished by the quality of their crimes, not just the quantity.

I'm afraid it's going to take a whole league of brave legislators to step up to that plate.

8, Ellen Goodman is a syndicated columnist.

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