The Law that Fails on All Counts

By Vincent Schiraldi and Geri Silva

Vincent Schiraldi is executive director of the Justice Policy Institute. Geri Silva is executive director of Families to Amend California’s Three Strikes.

March 7, 2004

Three weeks after California’s three-strikes law was enacted in March 1994, Brian Smith was charged with abetting a petty theft after his two companions were caught shoplifting in a convenience store. The offense usually carries a short jail term. But it landed Smith in prison for 25 years to life.

That’s because the new law counted the petty-theft crime as Smith’s third felony conviction. When 19, he had committed a strong-arm robbery (no weapon or physical harm involved). Five years later, he was convicted of burglarizing an unoccupied dwelling. These two offenses plus the petty theft sent Smith to prison until at least 2014. If Smith stays healthy, and he is released after serving his absolute minimum time (far from likely in California), his imprisonment for petty theft will have cost the state more than $600,000.

Three strikes turns 10 today, and in light of research on its budgetary and law enforcement effects, as well as the experiences of legions of Brian Smiths, it has had a troubled childhood. According to a report released last week by the Justice Policy Institute, three strikes has contributed heavily to California’s chronic prison population growth, has been applied disproportionately to African Americans and Latinos and has had little effect on crime rates. Ironically, although the law purported to go after California’s most violent criminals, nonviolent offenders sentenced under the law outnumber violent ones by nearly 2 to 1.

With the state facing a budget gap of $7 billion to $8 billion this year, and with little evidence that the three-strikes law is living up to its billing as an efficient crime fighter, California should consider amending it.

The crime rate has declined in California since 1994, but it would be a big stretch to credit three strikes. Among California’s 12 largest counties, the six most frequent users of the law “struck out” defendants at twice the rate of the lowest. If three strikes was truly a factor in curbing violent crime, these heavy-using counties should have experienced a sharper drop in such crime than the light users. The opposite happened. In counties that sparingly used three strikes, the decline in violent crime was 23% greater than in heavy-using ones. For example, defendants “struck out” in L.A. County at nine times the rate in San Francisco, yet the violent-crime rate dropped 24% more in San Francisco County from 1993 to 2002.

That pattern held when comparing states that have three-strikes laws with those that don’t. Between 1993 and 2002, the latter experienced a decline in violent crime that was 30% higher than the former. The decline in violent crime in New York, which doesn’t have a three-strikes law, was 20% greater than in California. Even after eight years, states without a three-strikes measure had an average violent crime rate 30% below California’s.

One possible reason for three strikes’ disappointing performance as a crime fighter is that 65% of those incarcerated under the law during its first decade committed nonviolent crimes. There are more Californians serving a life sentence under the law for drug possession than for second-degree murder, assault with a deadly weapon and rape combined. Some 354 inmates are serving life for Smith’s conviction — petty theft of under $250.

Donnell Dorsey’s case, reported in The Times, illustrates how suddenly and dramatically the penalties changed for nonviolent offenders after three strikes was enacted. On March 7, 1994, hours after three strikes became law, Dorsey faced a life sentence after being arrested for receiving stolen property. If nabbed earlier in the day, he would have faced a maximum term of six years, with the chance of only three years if he behaved while in prison.

Duane Silva, who is borderline mentally retarded, stole a neighbor’s VCR and some antique coins days after three strikes became law. Leandro Andrade shoplifted nine videotapes in 1995. In 1997, Shane Reams aided in the sale of $20 worth of crack cocaine to an undercover officer. All are serving life sentences.

Three strikes’ draconian approach has landed more heavily on people of color. African Americans are sentenced to life under three strikes at 12 times the rate of whites, a disparity far greater than any found in other criminal justice policies. Latinos are 78% more likely to be sentenced under three strikes than whites. In many ways, the incremental racial and disparities evident in the overall criminal-justice process combine geometrically in three strikes enforcement, resulting in such gross disproportionality of application.

All this comes at an enormous cost to Californians. Currently, more than one in four inmates were sentenced under three strikes. The cost of their incarceration will be $8 billion more than it would be if three strikes were not on the books. Nearly $5 billion of that will be spent striking out nonviolent offenders.

Finally, three strikes exacts a heavy toll on prisoners’ families. Some 46,700 children will spend an additional 5.8 years away from their parents as a result of the law. According to the California Research Bureau, children of incarcerated parents can suffer “emotional withdrawal, failure in school, delinquency and risk of intergenerational incarceration.”

Three strikes has proved to be overly broad, costly and ineffective. The law should apply only to those convicted of violent offenses. That would free money for schools and healthcare.