Three Strikes And You're Out!

April 24, 1994|By CARL M. CANNON

WASHINGTON — Washington. -- If you're wondering how you managed to miss the debate on something as sweeping as the "three strikes and you're out" law, the reason is probably that the discussion barely took place at all.

President Clinton mentioned it for the first time in his State of the Union speech -- he received a raucous ovation from members of Congress -- and then scarcely mentioned it again. He didn't have to. The provision sailed into a new national anti-crime bill, which the House passed on Thursday.

This spring, in state legislatures from California to Georgia, the bill was introduced one month, passed the next and quickly signed into law by governors of both parties happy to stake out a tough election-year stance on crime. In Annapolis, legislators passed a truth-in-sentencing law requiring convicts to serve 50 percent of their sentence before being paroled and a modified "two strikes" bill that re- quires a minimum of 10 years in prison for the second violent-felony conviction.

The "three strikes" provision that seems certain to become federal law law posits that anyone convicted of a third violent felony be imprisoned, without possibility of parole, for the rest of his or her life.

Opponents say it will significantly expand the prison population, making it older and vastly more expensive to support, while incarcerating petty criminals far past their crime-producing years.

Those in favor counter with a single -- and so far irresistible -- claim: They say the law will dramatically reduce the rate of violent crime that is threatening the fabric of American life.

Which side is right?

Perhaps neither. Maybe both. But at this point, it seems that nobody knows for sure because this approach not only hasn't been discussed fully in this country; it hasn't even been studied very much.

"Three strikes" came on the political world like a tornado. Liberals have expressed disgust that politicians who they say know better have held their noses and voted for it. But elected officials are supposed to be responsive to the public mood -- and the public mood is to do something, anything, about violence.

Historically, the criminal justice system has been as susceptible to being manipulated by the latest 6,8l trends as any American institution.

But "three strikes" is more than a fad. It represents a fundamental shift in the priorities, allocation of resources and goals of the nation's huge penal system.

Perhaps the criminal justice system needs overhauling. But knowing whether three strikes makes sense as an approach is a crucial and under-analyzed question -- especially since the entire approach may be based on a fallacy.

*

"First, we must recognize that most violent crimes are committed by a small percentage of criminals," Mr. Clinton said in his State of the Union address.

This is the mantra of the "three strikes" movement.

"When I learned that 6 percent of the criminals commit 70 percent of the crime, I was determined to find a way to target this small group who have proven they don't belong in civilized society," explained Maryland congressman Steny H. Hoyer in introducing his version of the three-time loser law.

"Career criminals actually commit an average of between 187 and 287 crimes per year," added Rep. Bob Livingston, a Louisiana Republican. "The logic is simple: They can't be in two places at once."

But is it that simple? And what is the source of these provocative statistics?

The estimate that 6 percent of the bad guys commit 70 percent of the crime dates to two studies by a University of Pennsylvania criminologist, Dr. Marvin Wolfgang. He researched the arrest records of all the boys born in Philadelphia in 1945 and in 1958.

But "three strikes" advocates have misread Dr. Wolfgang's study. The figure didn't refer to 6 percent of all criminals, but 6 percent of all the boys born that year.

Moreover, nearly one in five boys from Philadelphia had two or more arrests by age 18, showing how problematic it is to pass laws purporting to predict future criminal behavior. "As large as the prison population is today, strategies designed to incarcerate all these high-rate offenders boggles the imagination," said Marc Mauer, assistant director of The Sentencing Project, a critic of "three strikes."

The second common source cited most often by those pushing this legislation is a series of Rand Corp. studies on recidivism done in the late 1970s. This is the source of the estimate that the average career criminal commits between 187 and 287 crimes a year.

But again, those pushing "three strikes" make the same two mistakes: First, they mis-state what the study actually measured. Secondly, they fail to distinguish between discovering what crimes individual inmates admitted committing after the fact and the far more complicated task of predicting criminal behavior before it happens based on previous arrests or convictions.

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