Three Strikes Racks 'Em Up

by Paul Wright

from the book

The Celling of America

edited by Daniel Burton-Rose

with editors of Prison Legal News
Dan Pens and Paul Wright

Common Courage Press, 1998


In November of 1993 Washington voters passed Initiative 593 "Three Strikes You're Out" by a three to one margin. About 30 other states are considering some of the "Three Strikes" legislation, and it is the centerpiece of the 1994 federal "crime bill." The proponents of "Three Strikes" claim it will keep "career criminals" off the streets and in prison where they belong. Within what passes for mainstream American politics today no one is seriously opposing such measures. (On the other hand, groups which have some degree of knowledge about the criminal justice system-such as the American Corrections Association (ACA) and the Judicial Conference of the United States, which represents federal judges-have gone on record opposing the "Three Strikes" legislation.) The only dispute about "Three Strikes" in the national political field is how wide the net should be cast: all third time felons or just the "violent" ones? Life without parole or at least 25 years without parole? This is hardly a debate.

It seems that no one has pointed out that these laws have already been tried in the past. Until 1984 Washington had a "habitual offender" statute which mandated a life sentence for a defendant convicted of a felony for the third time. Most states have some version of this law on the books. The law's main purpose is to avoid trials whereby defendants will plea bargain to other charges in exchange for prosecutors agreeing not to "bitch" them.

Just who are these "career criminals" that are the focus of "three strikes" legislation? Fred Markham once told me that prisoners reminded him of the Wizard of Oz. The Wizard said he was not a bad man, just a bad wizard. Likewise, the vast majority of prisoners are not bad men, just bad criminals. Anyone who has done time in prison will tell you that they are not filled with rocket scientists. Most of the people in prison are not evil nor professional criminals: they tend to be poor people with emotional, drug or alcohol problems, who are caught doing something stupid. The "professional career criminal" tends to be a media myth (unless of course we count savings and loan bankers, Fortune 500 companies, Oliver North and company and that lot).

In March,1994, Samuel Page became the first person in the U.S. convicted and sentenced under a "Three Strikes" law. He plead guilty in Seattle. All told about 15 people in Washington state, mainly armed robbers and sex offenders, have been convicted of a qualifying third strike [that number now tops 83. -eds]. According to the latest report by the Washington Sentencing Guidelines Commission, in Fiscal year 1993 there were 204 defendants who would have qualified as "Three Strikes" defendants had the statute been in effect at the time (the law took effect December 2, 1993).

On April 15, 1994, Larry Fisher, 35, was convicted of his third strike in Snohomish county superior court in Washington. He is in prison and will stay there for the rest of his life. Fisher was convicted of putting his finger in his pocket, pretending it was a gun, and robbing a sandwich shop of $151 dollars. An hour later police arrested him at a bar a block away while he was drinking a beer. Fisher's two prior strikes involved stealing $360 from his grandfather in 1986 and robbing a pizza parlor of $100. All told the take from Fisher's criminal career totals $611 dollars; he has never physically harmed anyone.

How much will society pay to protect itself from this $611 loss? On average it costs $54,209 to build one prison bed space, and $20,000-$30,000 per year to house one prisoner (the costs are higher if financing and related costs of prison building are factored in). If Larry Fisher lives to be 70, the total cost to the state for his incarceration will be approximately $1 million dollars. Is society really getting its money's worth?

There are a lot of things wrong with these three strikes laws. Aside from the fact that their brunt will be borne almost entirely by poor people, there is the matter of proportionality. Everyone has heard the term "an eye for an eye." The original meaning of this was that punishment should be proportionate to the offense. Does stealing $611 dollars merit life in prison?

There are already numerous laws which mandate life without parole for certain first time or repeat offenses. The federal Armed Career Criminal Act, passed in 1988, mandates 25 years without parole for a three-time felon found in possession (not using, mind you, just possession) of a firearm. Michigan mandates life without parole for possession of more than 650 grams of heroin or cocaine for a first time offender. The only other offense in Washington state which carries a life without parole penalty is aggravated murder.

Terrible as Social Policy and Worse as Law

When the laws make no difference in punishment between killing five people, having a gun, having 650 grams of an illegal drug or stealing $151 dollars, there is something wrong. Washington and California police have reported that since the "Three Strikes" laws went into effect suspects have become more violent in resisting arrest. A suspect, knowing that if convicted of petty theft will spend his life in prison has, quite literally, nothing to lose if he has to kill a few people to avoid arrest. Seattle Police Sgt. Eric Bardt was quoted as saying: "It now looks like some of these three strikes cases might try to get away or shoot their way out. Believe me, that's not lost on us. We're thinking about it." The result of this will likely be the continued broadening of the death penalty.

It is perverse logic where the proponents of these type of laws cite with approval the increasing numbers of people receiving such sentences-be it life without parole or the death penalty-claiming they are a deterrent. If such laws were effective the numbers of people being prosecuted under them would decline. Neither the mainstream media nor the politicians have any interest in using logic or common sense in formulating public policy. All these laws will achieve is an increasing number of poor people in prison, more violence and more state repression.

No laws will be passed making corruption by public officials or endangering public health by corporations a "strikes" offense. In 1989 the federal Sentencing Guidelines Commission was going to increase the penalties and punishment for corporations convicted of crimes, including making its executive criminally liable. Corporate America promptly lobbied the Commission and Congress and these amendments never materialized. Unfortunately, poor people affected by three strikes laws don't command a voice that Congress or the media will listen to. The rich get richer, the poor get prison.

Karl Marx wrote that history repeats itself, first as tragedy, then as farce. In 18th and l9th century England people were hanged for offenses like pick-pocketing and poaching. In this country many mandatory minimum sentences were repealed in the '60s and '70s as people realized they did not work and their only effect was to destroy what chances prisoners had to rebuild their lives. Unfortunately, this repetition of history will not be farcical for those swept up by baseball slogans masquerading as social policy.

These three strikes laws give the impression that most defendants had a chance the first few times around. In reality, by the time most defendants step into a courtroom for the first time they already have a couple of strikes against them: their class, alcohol and/or drug problems, illiteracy, joblessness, poverty, and often their race or a history of abuse. They've been striking out a long time before they got up to the plate.

Assuming a three strikes defendant has been to prison twice before he gets his third strike, it would seem that it's only fair to receive a decent chance to get out of the conditions that led to their imprisonment in the first place. Instead, most prisoners go back to the same neighborhoods, with the same poverty, joblessness, illiteracy and other problems from which they came-conditions they are even less able to cope with after the brutal and dehumanizing process inherent in the prison experience which they have undergone. Legislators and prison officials are endeavoring to "make prisons tougher" by eliminating what token vocational and rehabilitational programs now exist. Combined with idleness, overcrowding, endemic violence, a self-fulfilling prophecy is being created: more third strikers. It's hard to get any wood on the ball under these conditions.

Will things get any better? "Two Strikes" proposals in both Washington and Georgia passed into law. On September 1, 1994, the California legislature passed its "One Strike Rape Bill." As originally drafted by Republican state senator Marian Bergeson, the law required that nearly all sex offenders be sentenced to life in prison without the possibility of parole. Critics immediately attacked the law as so harsh that it might prompt rapists to kill their victims. The version finally approved-signed into law by Republican Governor Pete Wilson, who had made this law a major part of his re-election campaign-calls for a penalty of 25 years to life for sexual assaults involving torture, kidnapping or burglary with intent to commit rape. Lesser sex offenses would have sentences of fifteen years to life.

Under California's previous sentencing laws a single rape conviction involving a weapon netted an eight year sentence with the prisoner usually released after five years or less. The same offender sentenced under the one strike bill will spend nearly 13 years in prison and then be freed only by the decision of a parole board. Those sentenced to the maximum term of 25 years to life will not be eligible for parole for more than 21 years.

The California DOC has not yet determined what impact this new law will have on prison capacity. According to the Corrections Yearbook, as of August 1, 1994, the California Department of Corrections (CDC) was the most overcrowded prison system in the country, operating at 185.8 percent of its rated capacity. The "One Strike" bill is touted as being the harshest in the country. One prosecutor was quoted as saying its purpose was to make sex offenders "stop, leave the state, or be locked up." What effect this will actually have on crime rates remains to be seen. Likely, it will be little or none, or will actually make things worse.

Georgia's Democratic Governor Zell "Zig-Zag" Miller, up for reelection, signed that state's "Two Strikes" law into effect in April 1994. It was also approved by voters on Nov. 8, 1994. According to some newspaper accounts, Miller actually signed the law into effect no less than seven separate times at different sites around the state while on the campaign trail. Among the law's provisions are sentences of life without parole for any person who already has one prior offense found guilty of specific crimes. The law also gives mandatory minimum sentences of ten years to first time offenders and treats juvenile offenders as adults. The Georgia legislature voted 166-7 in favor of the law. For the moment Georgia can lay claim to having the most punitive prior offender law on the books.

Given the national stampede towards draconian punishment, doesn't seem like it'll be long now before they dispense with the wimpy one strike stuff and just go for the death penalty.

Celling of America