by Paul Wright
In November 1993, voters in Washington State passed Initiative 593 which mandates life without parole for defendants convicted of one of 42 qualifying felonies for the third time. The first attempt, in 1992, failed to get the necessary 182,000 voter's signatures for the initiative to qualify for the ballot. It appeared that the 1993 effort would meet the same fate until, within the last few week before the July deadline by which initiatives must be filed with the secretary of state, the National Rifle Association (NRA) pumped $90,000 into the campaign (out of a total of $170,000 raised.) This allowed for a massive direct mailing to citizens across the state as well as paying professional companies to gather signatures.Washington voters passed "Three Strikes You're Out" by a three to one margin. Since then, California has passed a similar measure, about 30 states are considering some form of it, and it was one of the centerpieces of President Clinton's defeated "anti-crime bill." The proponents of three strikes claim it will keep "career criminals" off the streets and in prison. Within what passes for mainstream American politics today, few seriously oppose such measures. (Although it should be noted that the American Correctional Association and the Judicial Conference of the United States, which represents federal judges, have gone on record opposing strikes legislation.) The only dispute is how wide the net should be cast, i.e. all third-time felons or just "violent" ones; life without parole or at least 25 years without parole... This is hardly a debate.
Little noted by the mainstream media are the other effects of the these laws. The Washington three strikes law eliminated good time or other time reductions for several offenses, including murder, rape, robbery, etc... It also forbids placing wide categories of prisoners in any kind of work release, home detention, or similar type of facility. The California law requires that sentences be served consecutively, restricts good time credits for prisoners and limits prosecutors' ability to strike prior felonies reaching plea bargains.
No one has pointed out that these laws have been tried before. Until 1984, Washington had a "habitual offender" statute which mandated a life sentence for a defendant convicted of a felony for the third time. Most states have some version of this law on the books, its main purpose is to avoid trials whereby defendants will plea bargain to other charges in exchange for prosecutors agreeing not to "bitch" them. Occasionally the media report the hapless defendant, usually in Texas, who gets life for stealing a carton of cigarettes after being charged as a "habitual criminal."
Just who are these "career criminals" that are the focus of the three strikes legislation? The Wizard of Oz said he was not a bad man, just a bad wizard. Likewise, the vast majority of prisoners are not bad men, just bad criminals. Anyone who has done time in prison will tell you that jails are not filled with rocket scientists. Most of the people in prison are not evil nor professional criminals, they tend to be poor people with emotional, drug or alcohol problems who are caught doing something stupid. The "professional career criminal" tends to be a media myth, unless we count savings and loan bankers, Fortune 500 companies, or Oliver North.
About nine hours after California's three strikes law went into effect on March 7, 1994, Charles Bentley was arrested in Los Angeles and charged with the crime that could send him to prison for 25 years without parole: a 50 cent robbery. Donnell Dorsey, 37, is also looking at his third strike, for sitting in a stolen truck. The California law also doubles presumptive sentences for second time offenders.
In March, 1994, Samuel Page became the first person in the U.S. convicted and sentenced under a three strikes law. He pleaded guilty in Seattle. All told, about 15 people have been charged with a qualifying third strike. According to the latest report by the Washington Sentencing Guidelines Commission, in fiscal year 1993, there were 204 defendants who would have qualified as three strikes defendants had the statute been in effect at the time. (The law took effect on December 2, 1993.)
On April 15, 1994, Larry Fisher, 35, was convicted of his third strike in Snohomish County Superior Court. He will be sent to prison for the rest of his life. Fisher was convicted of putting his hand in his pocket, pretending it was a gun and robbing a sandwich shop of $151. An hour later, police arrested him at a bar a block away while he was drinking a beer. Fisher's two prior convictions involved stealing $360 from his grandfather in 1986 and then robbing a pizza parlor in of $100. The take from Fisher's criminal career totals $611 and he has never physically harmed anyone.
How much will society pay to protect itself from this $611 loss? On average, it costs $54,209 to build one prison bed space, and $20,000 to $30,000 per year to house one prisoner. (The costs are higher if financing and related costs are factored in.) If Larry Fisher lives to age 70, the total cost will be approximately $1 million. Is society really getting its money's worth?
Using the Sentencing Commission's figures as a base - assume that 200 defendants a year will be third-striked in Washington State alone - allows us to calculate the demand for prison beds. Because they will never get out, the number will continue to grow; within ten years, they will occupy at least 2,000 prison beds. The average prison in Washington holds about 800 prisoners. At the same time that Washington voters passed I-593, they passed I-601 limiting the ability of the legislature and governor to raise taxes. All tax increases are now tied to population growth and must be approved by voters. This will present something of a contradiction in coming years, voters want to lock everyone up for the rest of their lives but do they want to pay for it? More importantly, can they pay for it? Stagnant economic growth (itself a leading cause of crime) results in a smaller tax base from which to pay for more prisons.
These three strikes laws contain a number of other problems. Aside from the fact that only poor people will bear the brunt, there is the matter of proportionality. Everyone has heard of an "eye for an eye." The original meaning was that punishment should be proportionate to the offense. If someone's cow wandered into your pasture this meant your village did not destroy the village of the cow's owner. Does stealing $151 merit life in prison? Is 50 cents worth 25 years?
There are already a number of laws which mandate life without parole for certain first-time or repeat offenses. The federal Armed Career Criminal Act, passed in 1988, mandates 25 years without parole for a three time felon found in possession (not using, mind you, just possession) of a firearm. Michigan and the federal government also mandate life without parole for possession of more than 650 grams of heroin or cocaine for a first-time offender. The only other offense in Washington Sate which carries a life without parole penalty is aggravated murder.
When the laws make no distinction in punishment between killing five people, having a gun, having 650 grams of drugs or stealing $151 , there is something wrong. Washington and California police have reported that since the three strikes laws went into effect suspects have become more violent in resisting arrest. A suspect who faces life in prison if convicted for a $151 robbery has quite literally nothing to lose if he kills a few people to avoid arrest. The result of this, I suspect, will eventually be broadening the death penalty. Seattle Police Sgt. Eric Barden was quoted in the New York Times saying, "It now looks like some of these three strikes cases might try to get away or shoot their way out. Believe me, that's not lost on us. We're thinking about it."
It is perverse logic where the proponents of these types of laws cite with approval the increasing numbers of people receiving such sentences, be it life without parole or the death penalty, claiming they are a deterrent. If such laws were effective, the numbers would decline. Neither the mainstream media nor politicians have any interest in using logic or common sense in formulating public policy. All these laws will achieve are an increasing number of poor people in prison, more violence, more state repression and, eventually, greater use of the death penalty.
Karl Marx wrote that history repeats itself, first as tragedy, then as farce. In 18th and 19th Century England, people were hanged for offenses like pick-pocketing and poaching. In this country, many mandatory minimum sentences were repealed in the 1960s and 1970s as people realized they did not work and the only effect was to destroy what chances prisoners had to rebuild a life. Unfortunately, this repetition of history will not be farcical for those swept up by baseball slogans masquerading as social policy.
Assuming a three strikes defendant has been to prison twice before he gets his third strike, it is only fair to receive a decent chance to get a hit or a home-run. Instead, most prisoners go back to the same neighborhoods with the same poverty, joblessness, illiteracy and other problems with which they left. This is compounded by the brutality and dehumanization in the American prison experience of the 20th Century.
Right now legislators and departments of corrections are endeavoring to "make prisons tougher" by eliminating what token vocational and rehabilitation programs now exist. Combined with idleness, overcrowding and endemic violence, a self fulfilling prophecy is being created of more third strikers. It's hard to get any wood on the ball under these conditions.
Paul Wright, a guest of the state at Monroe Reformatory, is editor of Prison Legal News. PLN publishes state, national and international prison-related news and analysis. Subscriptions are $12 a year: PLN, PO Box 1684, Lake Worth, FL 33460
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Contents on this page were published in the August/September, 1994 edition of the Washington Free Press.
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Copyright © 1994 WFP Collective, Inc.