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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

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 are overkill.

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 actions.

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 life.

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 Judges

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 superfluous.

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 Prohibitively High

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 year.

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 Offenders

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 executions.

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 parole.

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 of Rights:

"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 hope.

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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