An American Civil Liberties Union BRIEFER
The American public is alarmed about crime, and with good reason.
Our crime rate is unacceptably high, and many Americans feel like
prisoners in their own homes, afraid to venture out for fear of
becoming another statistic.
For more than past 20 years, state and federal crime control policies
have been based on the belief that harsh sentencing laws will deter
people from committing crimes. But today, with more than one million
people behind bars, and state budgets depleted by the huge costs of
prison construction, we are no safer than before. New approaches to
the problem of crime are needed, but instead, our political leaders
keep serving up the same old strategies.
Take the so-called "3 Strikes, You're Out" law, for example.
Embraced by state legislators, Congress and the President himself,
this law imposes a mandatory life sentence without parole on
offenders convicted of certain crimes. Despite its catchy baseball
metaphor, this law is a loser, for the following reasons.
1. "3 Strikes" Is An Old Law Dressed Up In New Clothes
Although its supporters act as if it is something new, "3 Strikes" is
really just a variation on an old theme. States have had habitual
offender laws and recidivist statutes for years. All of these laws
impose stiff penalties, up to and including life s entences, on
repeat offenders. The 1987 Federal Sentencing Guidelines and
mandatory minimum sentencing laws in most states are also very tough
on repeaters. The government may be justified in punishing a repeat
offender more severely than a first offender, but "3 Strikes" laws
2. "3 Strikes" Laws Won't Deter Most Violent Crimes
Its supporters claim that "3 Strikes" laws will have a deterrent
effect on violent crime. But these laws will probably not stop many
criminals from committing violent acts. For one thing, most violent
crimes are not premeditated. They are committed in anger, in the
heat of passion or under the influence of alcohol. The prospect of a
life s entence is not going to stop people who are acting
impulsively, without thought to the likely consequences of their
Another reason why repeat offenders do not consider the penalties
they face before acting is because they do not anticipate being c
aught, and they are right. According to the American Bar
Association, out of the approximately 34 million serious crimes
committed each year in the U.S., only 3 million result in arrests.
3. "3 Strikes" Laws Could Lead To An Increase In Violence
Many law enforcement professionals oppose the "3 Strikes" law out of
fear such laws would spur a dramatic increase in violence against
police, corrections officers and the public. A criminal facing the
prospect of a mandatory life sentence will be far more likely to
resist arrest, to kill witnesses or to attempt a prison escape. Dave
Paul, a corrections officer from Milwaukee, Oregon, wrote in a
newspaper article: "Imagine a law enforcement officer trying to
arrest a twice-convicted felon who has nothing to lose by using any
means necessary to escape. Expect assaults on police and
correctional officers to rise precipitously." (Portland Oregonian,
3/94). Ironically, these laws may cause more, not less, loss of
4. "3 Strikes" Laws Will Clog The Courts
The criminal courts already suffer from serious backlogs. The
extraordinarily high arrest rates resulting from the "war on drugs"
have placed enormous burdens on prosecutors, defense lawyers and
judges, whose caseloads have grown exponentially over the past
decade. "Three strikes" laws will make a bad situation even worse.
Faced with a mandatory life sentence, repeat offenders will demand
costly and time-consuming trials rather than submit to plea
bargaining. Normal felonies resolved by a plea bargain cost $600 to
defend, while a full blown criminal trial costs as much as $50,000.
Since most of the defendants will be indigent and require public
defenders, the expense of their defense will be borne by taxpayers.
5. "3 Strikes" Laws Will Take All Sentencing Discretion Away From
The "3 Strikes" proposals differ from most habitual offender laws in
that they make life sentences without parole mandatory. Thus, they
tie the hands of judges who have traditionally been responsible for
weighing both mitigating and aggravating circumstances before
imposing sentence. Judicial discretion in sentencing, which is
admired all over the world for treating people as individuals, is one
of the hallmarks of our justice system. But the rigid formula
imposed by "3 Strikes" renders the role of sentencing judges almost
Eliminating the possibility of parole ignores the fact that even the
most incorrigible offenders can be transformed while in prison.
Countless examples are on record of convicts who have reformed
themselves through study, good works, religious conversion or other
efforts during years spent behind bars. Such people ought deserve a
second chance that "3 Strikes" laws make impossible.
6. The Cost of Imprisoning 3-Time Losers For Life Will Be
The passage of "3 Strikes" laws will lead to a significant increase
in the nation's already swollen prison population, at enormous cost
to taxpayers. Today, it costs about $20,000 per year to confine a
young, physically fit offender. But "3 Strikes" laws would create a
huge, geriatric prison population that would be far more expensive to
care for. The estimated cost of maintaining an older prisoner is
three times that required for a younger prisoner -- about $60,000 per
The cost might be worth it if older prisoners represented a danger to
society. But experts tell us that age is the most powerful crime
reducer. Most crimes are committed by men between the ages of 15 and
24. Only one percent of all serious crimes are committed by people
over age 60.
7. "3 Strikes" Will Have a Disproportionate Impact On Minority
Racial bias in the criminal justice system is rampant. African
American men, in particular, are overrepresented in all criminal
justice statistics: arrests, victimizations, incarceration and
This imbalance is largely the result of the "war on drugs."
Although studies show that drug use among blacks and whites is
comparable, many more blacks than whites are arrested on drug
charges. Why? because the police find it easier to concentrate their
forces in inner city neighborhoods, where drug dealing tends to take
place on the streets, than to mount more costly and demanding
investigations in the suburbs, where drug dealing generally occurs
behind closed doors. Today, one in four young black men is are under
some form of criminal sanction, be it incarceration, probation or
Because many of these laws include drug offenses as prior "strikes,"
more black than white offenders will be subject to life sentences
under a "3 Strikes" law.
8. "3 Strikes" Laws Will Impose Life Sentences on Offenders Whose
Crimes Don't Warrant Such Harsh Punishment
Although "3 Strikes" sponsors claim that their purpose is to protect
society from only the most dangerous felons, many of the "3 Strikes"
proposals encompass a broad range of criminal conduct, from rape to
minor assaults. In an open letter to the Washington State voters,
more than 20 current and former prosecutors urged the public to vote
against the "3 Strikes" proposal. To explain why they opposed the
law's passage, they described the following scenario:
"An 18-year old high school senior pushes a classmate down to steal
his Michael Jordan $150 sneakers -- Strike One; he gets out of jail
and shoplifts a jacket from the Bon Marche, pushing aside the clerk
as he runs out of the store -- Strik e Two; he gets out of jail,
straightens out, and nine years later gets in a fight in a bar and
intentionally hits someone, breaking his nose -- criminal behavior,
to be sure, but hardly the crime of the century, yet it is Strike
Three. He is sent to prison for the rest of his life."
9. Let the Punishment Fit the Crime -- A Constitutional Principle
Under our system of criminal justice, the punishment must fit the
crime. Individuals should not be executed for burglarizing a house
nor incarcerated for life for committing relatively minor offenses,
even when they commit several of them. This principle, known as
"proportionality," is expressed in the Eighth Amendment to the Bill
"Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted."
Many of the "3 Strikes" proposals depart sharply from the
proportionality rule by failing to take into consideration the
gravity of the offense. Pennsylvania's proposed law treats
prostitution and burglary as "strikes" for purposes of imposing a
life s entence without parole. Several California proposals provide
that the first two felonies must be "violent," but that the third
offense can be any felony, even a non-violent crime like petty theft.
Such laws offend our constitutional traditions.
10. "3 Strikes" Laws Are Not A Serious Response To Crime
The "3 Strikes" proposals are based on the mistaken belief that
focusing on an offender after the crime has been committed, which
harsh sentencing schemes do, will lead to a reduction in the crime
rate. But if 34 million serious crimes are committed each year in
the U.S., and only 3 million result in arrest, something must be done
to prevent those crimes from happening in the first place.
Today, the U.S. has the dubious distinction of leading the
industrialized world in per capita prison population, with more than
one million men and women behind bars. The typical inmate in our
prisons is minority, male, young and uneducated. More than 40
percent of inmates are illiterate; one-third were unemployed when
arrested. This profile should tell us something important about the
link between crime and lack of opportunity, between crime and lack of
Only when we begin to deal with the conditions that cause so many of
our young people to turn to crime and violence will we begin to
realize a less crime ridden society.
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