Jury's out on success of three strike law

California's prison population has skyrocketed in the last decade, partly due to the impact of the three strike law. Photo / AP

Drifter Richard Allan Davis languishes on death row in San Quentin jail. A violent and dangerous man, Davis was sentenced to death after he confessed to the knifepoint abduction and murder of 12-year-old Polly Klaas in October 1993. In the intense media coverage and popular outrage that followed, California voters passed Proposition 194, or "Three Strikes and You're Out", by a huge majority.

Essentially, it updated a concept used against repeat offenders, dramatically increasing penalties for defendants already convicted of serious crimes, including murder, rape, kidnapping and armed robbery.

But 15 years down the track it is open to question if this reaction was ultimately in the public interest.

"This is often the case with crime policy," says Nastassia Walsh, a research associate with the Justice Policy Institute, a Washington think-tank that searches for alternatives to incarceration. "An incident is highly publicised by the media, there's a public outcry, and politicians need to do something to be tough on crime. That's how things like three strikes, sex offender registries and mandatory minimums happen." Unlike three strike laws adopted by other states - 26 states have them, as does the Federal Government - California didn't restrict the third strike, known to lawyers as the "wobbler," to violent crimes.

"The devil's in the details," explains Laurie Levenson, a former federal prosecutor who teaches at LA's Loyola Law School. "Which is, what do you make a strike? If they're violent offences then it's probably a good idea. But if you do what we did in California, which is blindly put in a three strikes law that includes people who steal a slice of pizza, and we end up having an enormous geriatric prison population we can't afford, then it's not a good idea."

The pizza case - when a felon went down on a third count for, yes, stealing a pizza slice - is representative of a cavalcade of cases that made the Californian law look an ass, with offenders being sentenced to 25 years to life for shoplifting, passing bad cheques, using fake documents, possessing stolen goods and other petty crimes.

"In California three strikes is something of a misnomer," says Mark Kleiman, a public policy expert at UCLA. "The law has three provisions. The one that gets headlines is the guy who gets 25 years for stealing some pizza. The first two strikes have to be something bad, a serious or violent felony [the law also doubles sentences for the second strike]. The third strike can be any felony. If you've been convicted of a misdemeanour and you commit a second misdemeanour that can be charged as a felony. Hence the third strike."

This is not proposed in New Zealand. The Government defines a "strike offence" as a serious violent or sexual crime, including murder, serious crimes involving firearms, grievous bodily harm, rape, and sex crimes against minors.

Efforts to reform the California law, including those by LA's hard-on-crime District Attorney Steve Cooley, have largely ended in failure. "Steve's not a liberal," says Levenson. "I think he's a realist. He realises that by imprisoning all these people we're letting others go. So we're still working out the kinks. I'm not theoretically opposed to three strikes. But I'm not sure that all prosecutors have good judgment when they apply it."

In 2003 the US Supreme Court, following growing controversy about wobblers, examined an infamous case in which Leandro Andrade, a heroin addict with burglary convictions, was sentenced to two 25 years-to-life terms for stealing nine videotapes, including Free Willy 2, worth $153.54.

In a five to four ruling the court said the law was constitutional.

Which means a lot of people get sent to prison yet probably shouldn't be there. By last July the state had 170,400 inmates. The major beneficiary of three strikes is the state prison wardens' union, by far the most powerful political lobby in California politics.

"The number of people added to California's prisons in the last 10 years has skyrocketed," says Walsh. "The corrections union definitely stands to benefit from wages, overtime and more members." And political clout.

Besides prison guards the other obvious three strikes beneficiary is the commercial prison industry, which has enjoyed a construction boom in California. Critics of three strikes contend the law serves as a prison production line, furnishing a constant supply of inmates, and hence a guaranteed long-term source of income.

Whether this makes people safer is a contentious subject. In 1994 the Rand Corporation found three strikes would reduce crime by about one-third. But the cost of incarceration, including building new prisons, would be huge. The report advised jailing violent felons without parole and placing minor offenders on probation.

Statistics from California's Department of Justice and Department of Corrections show that in the decade prior to 1994 there were 8,825,353 serious crimes; murder, rape, robbery, assault, vehicle theft and burglary. In the decade after three strikes became law, the total fell to 6,780,964.

But it is unsure if the three strikes law was responsible for this decline. During this period crime fell throughout the country, including states without a three strikes laws. Indeed, New York, which has no three strikes law, saw crime drop 27 per cent more than it did in California from 1993 to 2002.

Various other reasons have been posed for the national crime drop after 1994, including a buoyant US economy and the fact that the population had fewer 18-to-25-year-olds, the group responsible for most crimes.

Few would argue against incarcerating violent criminals, the killers and rapists, who threaten public safety. At the same time there are fears that locking up thousands of mostly young men, many for minor drug offences, may be counter-productive when it comes to reducing crime. For doing time often translates as a criminal apprenticeship.

"Once somebody gets sent to prison," says Levenson, "for about 75 per cent that's the life they're going to live. They're just going to spiral downhill. It's very important whom we choose to use three strikes against. The other question is, why are we using this mechanism, as opposed to imposing high sentences for certain crimes the first time? That would have taken care of Richard Allan Davis, the poster boy for three strikes who started this whole movement." While three strikes is a cudgel that may satisfy the victims of crime, and allow politicians to take credit for being "tough on crime", it ignores the conditions that create crime in the first place. In California's inner cities, crime is a vicious cycle, where criminals from poor neighbourhoods prey on their own. Breaking this is key to lowering crime statistics.

Walsh argues the probation service - understaffed and underfunded in California - should help offenders find jobs, a tough call in a monster recession. Kleiman suggests that rather than locking people up - the shotgun approach - three strikes should focus on repeat villains.

His more nuanced approach would use drug tests and GPS monitoring - "the benefits of prison without the walls" - to control young offenders convicted on petty drug crimes, the growth area for incarceration into the state prisons.

"Cesare Beccaria wrote in the 18th century that there are three factors in a punishment that contribute to its deterrent effect: swiftness, certainty and severity. Of the three severity is the least important." It isn't chest thumping lock-'em-up talk but it might work better.

There is some evidence California has made tentative steps in this direction. Proposition 36, adopted in 2001, allows judges to rule that first and second non-violent drug offenders receive treatment rather than go to jail.

Given that many inmates are there on drug offences this makes sense. Indeed, a bill to legalise marijuana was introduced into the state legislature this month.

"Those in criminal justice believe that three strikes has been, at best, a crude tool," says Levenson. "And generally a failure. But no one has suggested alternatives. So we stick with it because politically it's not feasible for those in charge to say, 'We don't want it'. I think it's emblematic of our failed approach to criminal justice."