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Professor Michael Vitiello
McGeorge School of Law, University of the Pacific
JURIST Guest Columnist

Earlier this term, the United States Supreme Court heard oral arguments in companion cases involving the legality of long prison sentences imposed on repeat offenders under California痴 so-called "Three Strikes" law. In Lockyer v. Andrade, the Court is reviewing the Ninth Circuit痴 decision that a term of 50 years to life in prison for an offender convicted of two petty thefts violates the Eighth Amendment痴 prohibition against cruel and unusual punishment. In Ewing v. California, the Court is reviewing a California court of appeal痴 decision upholding the constitutionality of a 25-year-to-life sentence in which the offender痴 third strike also involved theft.

Divining how the Court will decide these cases based on the Justices questions at argument is a risky business. But the Justices were aggressive in questioning the attorneys for the Three Strikes defendants (Federal Public Defender Quin Denvir and U.S.C. Law Professor Erwin Chemerinsky). Their questions reflect serious issues about objective line drawing, federalism, and legislative prerogative, among other concerns. Most commentators suggested that the Court will uphold California痴 power to impose such sentences and will reverse the Ninth Circuit.

Californians should be rooting for the Court to affirm the Ninth Circuit, which would require lower courts to determine whether many of the extreme sentences under Three Strikes violate the Eighth Amendment. That is so because the federal courts may be the last best hope to save California from its own excesses.

For most of the past eight years, crimes rates have been down in California. California voters labor under the view that Three Strikes is responsible for the downturn. Prominent politicians have worked hard to uphold that belief, despite increasing empirical evidence that contradicts it.

Governor Gray Davis has touted his support for Three Strikes. Unsuccessful gubernatorial candidate Secretary of State Bill Jones, who sponsored the legislation as an assemblyman from the Fresno area, continues to attribute most of the downturn in California痴 crime rate to the law. So too does Justice James Ardaiz, a District Court of Appeal Justice, who had a role in preparing the original bill.

In 1998, former Attorney General Dan Lungren had his office prepare a report on Three Strikes. That report concluded that 甜s]ince the passage of 禅hree Strikes, . . . the violent crime in California has dropped 26.9% with a 30.8% drop in the six major crime categories.

A number of empirical studies now cast doubt on these claims. Two studies are particularly telling.

Law Professors Linda Beres and Thomas Griffith examined the 1998 Attorney General痴 Report and challenged its assertion that Three Strikes led to a dramatic change in the crime rate. The AG痴 report lumped crime data for 1990-93 and compared it with that for 1994-97 and found a drop in crime rates of only 2.4% prior to Three Strikes and 30.8% after its passage. Had the AG痴 report not lumped 1990-93 data, the data would have shown that the sharp decline in violent crime began in 1993, before passage of Three Strikes. Other data suggested that Three Strikes was not producing a sharp drop in crime rates: for example, while the rate of theft crimes was down during the relevant period, the sharpest decline was among younger felons, those not likely to be subject to Three Strikes provisions.

Beres and Griffith rebutted the claim by Three Strikes proponents that because California痴 crime rates declined more sharply than crime rates across the nation, Three Strikes must be the reason. They examined the data more closely than did the AG痴 report and found that the sharpest decline in crime rates was among urban youth. Because of California痴 large urban populations, one would have predicted that it would experience a sharper decline in crime than less populous states. As important, the decline was comparable to that in Massachusetts and New York -- other states with large urban centers -- that did not enact expensive laws like Three Strikes.

Instead of resulting from Three Strikes, the study found the lowered crime rates were consistent with numerous variables, like economic prosperity that led to more economic opportunity for low-skilled workers, the decline in the crack cocaine epidemic that had caused sharp increases in crime in the 1990's, better policing strategies including enforcement of anti-loitering and graffiti laws that resulted in removing hand guns from youthful offenders, and improved cooperation between communities and the police.

The most thorough study to date, led by Professor Frank Zimring at U.C. Berkeley, also casts doubt on the claims of Three Strikes proponents. The researchers assembled data on three groups of felons: those who committed their first felony, those eligible for second strike penalties, and those eligible for third strike penalties. In addition, they collected data from three different cities (San Francisco, Los Angeles and San Diego) with distinct reputations for enforcement of Three Strikes.

They found that Three Strikes cannot be responsible for a significant percentage of the decline in crime rates because the amount of crime committed by second and third strike felons is quite small, a total of about 10.5% for both groups, and only 3.3% for the third strike felons. Contrary to campaign promises to get murderers, rapists and child molesters off the streets, third strikes felons were not committing more violent crimes than the other groups of felons.

Also, similar to the Beres-Griffith study, Zimring et al. found that the decline in crime rates began before passage of Three Strikes and continued at about the same rate after its passage. Were Three Strikes the cause for a significant decline in crime rates, the rate of decline should have accelerated with its passage. That simply was not the case. Putting large numbers of third strike felons in prison was not causing the sharp declines in crime.

The study also attempted to determine whether deterrence might be responsible for the sharp decline in crime. The authors collected pre- and post-Three Strikes data for the three groups of felons. The total amount of crime committed by each of the three groups remained constant. That suggests that Three Strikes was not responsible for a significant deterrent effect: if Three Strikes deters, the group subject to its most stringent provisions should have been deterred more than the other groups. That did not happen.

Politicians like Pete Wilson argued that Three Strikes would save taxpayers money because the savings in reduced crime would exceed the cost of prison construction and maintenance. They ignored arguments that cheaper alternatives to warehousing some prisoners were available. Subsequent studies confirmed that Wilson and other Three Strikes proponents were simply wrong. One effect of Three Strikes is that it creates a time bomb. It adds a few thousand prisoners a year to the system, which will eventually lead to a significant number of aging felons. Warehousing those felons will cost California billions of dollars. Moreover, many aging felons, the kinds of felons often swept into prison in the Three Strikes net, do not represent a serious social threat since, as criminologists tell us, violent crime is 殿 young man痴 game. In addition, because prisoners are under exclusive control of the state, the state must provide reasonable medical care, and medical care for aging prisoners is expensive. Paradoxically, that may mean that a prisoner is entitled to better health care than hard working low income people who are not criminals. Finally, using resources to warehouse aging felons reduces resources available to catch and punish younger more aggressive felons. As California faces a budget crisis, Three Strikes increases costs for warehousing prisoners who represent limited social risk.

In light of the evidence that Three Strikes does not deliver on its promises, the obvious solution should be legislative reform. But, as Zimring and his co-authors argue, reform is unlikely. Most prominent politicians have tied their careers to Three Strikes and have courted both victims rights groups and unions that represent law enforcement officials, especially the extraordinarily influential prison guards union. Politicians also recognize that members of the public view a reduction in punishment as an effort to aid criminals at the expense of victims. In addition, no significant interest group supports reform. Some groups, like judges, might benefit by an increase in discretion in imposing Three Strikes sentences, but they are not likely to advance significant legislative reform because they do retain limited discretion in some extreme cases. Finally, Californians voted for Three Strikes with passions aroused by the kidnaping of Polly Klaas. They were treated to a highly misleading campaign that billed Three Strikes as targeting murderers, rapists and child molesters. In fact, the law is poorly designed for that purpose: California law already provides severe sanctions for such offenses and many Three Strikes offenders have not been violent.

In voters haste to address what they were led to believe was an increasing problem of violent crime, they adopted a provision that requires a two-thirds majority of the legislature for an amendment of the law. Thus, Professor Zimring and his co-authors are correct that reform will be extremely difficult.

At various times, courts have saved politicians from having to make hard choices. California痴 courts have not done so. During the 1970's and 80's, California痴 Supreme Court was a leader in reviewing long prison sentences under California痴 Constitution. However, the state appellate courts have not used that line of cases to overturn some of the more extreme Three Strikes sentences. In light of this universal agreement among the courts of appeal, the state Supreme Court has little incentive to review the issue.

Enter the Ninth Circuit. Its decision in Andrade, and then in two other cases involving third strike felons whose final strike was petty theft, created the hope that the lower courts would overturn some of the more extreme sentences under Three Strikes. But if court-watchers are correct, the Supreme Court will overturn the Ninth Circuit痴 decision in Andrade.

If that is the case, then California痴 politicians will need to muster the courage to do the heavy lifting themselves. One target of bloated social spending should be the prison system. Rational reexamination of California痴 sentencing scheme, beginning with Three Strikes, is in order, but expecting that our politicians to show political courage may be too much to ask.

Michael Vitiello is Professor of Law at McGeorge School of Law, University of the Pacific, and Co-Director of the Appellate Advocacy Program. His scholarship centers on the confluence of constitutional and criminal law.

December 5, 2002


JURIST Guest Columnist Michael Vitiello is Professor of Law at McGeorge School of Law, University of the Pacific, and Co-Director of the Appellate Advocacy Program. Professor Vitiello's scholarship centers on the confluence of constitutional and criminal law. His articles have appeared in law journals at schools such as Loyola-Los Angeles; the University of San Francisco; Ohio State; the University of California, Hastings; and the University of California, Berkeley. Professor Vitiello clerked for three years for Judge J. Sydney Hoffman of the Superior Court of Pennsylvania, that state's intermediate appellate court. He taught at Loyola University Law School in New Orleans for more than a decade and has also been a visiting professor of law at Tulane University and the University of Mississippi. While at Loyola, he helped establish the Loyola Death Penalty Resource Center, a federally funded institute. Professor Vitiello also was involved in pro bono litigation in Louisiana on behalf of appellants and indigent defendants. He is a member of the American Law Institute.