The Court at bat

The U.S. Supreme Court is going to decide whether California's three-strikes law is constitutionally amiss, and maybe you think this is an easy call.

After all, the California law is different in one important regard from the laws in the 25 other states that allow for lengthy prison sentences after a third felony conviction. It permits prosecutors to treat a third offense as a felony even if it is a crime that ordinarily would be treated as a misdemeanor. Thus it is that someone who has done nothing more serious than steal golf clubs can end up with a sentence of 25 years to life. Surely such a sentence is "disproportionate to the crime," as critics say. And surely it is therefore the kind of cruel and unusual punishment that the Constitution prohibits, right?

If we were talking about a single crime in isolation, the answer might be in the affirmative. Keep in mind, however, that the person is being punished not just for the latest crime, but for an undeflected habit of crime. Keep in mind that the person knew he had been twice convicted of serious, maybe even brutal felonies and was therefore subject to third-strike penalties - and still decided to break the law. Keep in mind that people like this cause endless misery. And keep in mind that if this tough law has done nothing to alter someone's conduct, steel bars and hovering guards will.

But, you say, not all cases are the same, and this three-strikes, formulaic approach to criminal justice is consequently unfair and unreasonable. What is needed, you say, is some element of discretion, some reliance on human judgment on the particular case at hand. Well, you have it. Owing to a ruling of the state's highest court, judges don't have to count the third conviction as strike three if they don't want to, and on some occasions, some don't. And under the law, district attorneys are not required to prosecute three-time offenders as third-strike cases if they don't choose, and, again, some don't.

Despite all that, you might observe, there are those who say the law has made Californians not a whit safer. Yes, it has. As defenders of the law point out, California's crime rate started going down immediately after enactment of the law and has decreased at a much higher rate than the national average. Criminals know about this law, police officers have said, and many are deterred. And many dangerous people are out of circulation because of the law's sentencing provisions. The law's critics cannot in good conscience dispute the fact that a great many of the state's residents have escaped murder, rape, robbery or other crimes because of the three-strikes law.

The Supreme Court may find sound reasons to confine the reach of three-strike laws, but it is hard to imagine what reason it could find simply to eliminate them.

Frankly I don't want to require that people commit a third felony before they get the third strike treatment. If someone steals that set of golf clubs after committing two felonies, I'm perfectly comfortable with sending them off for life. Having to deal with people stealing your personal property is a real drag.

Nobody forces these people to commit crimes. If they don't want to do the penalty, then don't do the crime.

Laws are a real bitch only to those that are determined to break them. I'm not too worried about a third strike. Anyone else?

Frankly I don't want to require that people commit a third felony before they get the third strike treatment.

Me neither.

If someone steals that set of golf clubs after committing two felonies, I'm perfectly comfortable with sending them off for life.

Well, in most states, its three violent crimes. Property theft does not count. The problem that happened here in Florida is that the law was touted as "three strikes for violent offenders". Then, they slip in "felony" drug possession as a qualifier also. The law was challenged for other reasons here in Florida(based upon a Constitutional requirement that laws can not pertain to multiple subjects or something like that). It has been re-written and will probably fly.

However, I do not like the idea in California that a thrid misdemeanor becomes a felony and you qualify for three strikes.

I recognize that others may disagree with me on this. I do believe there are several seemingly valid reasons to. I'm a real stickler when it comes to habitual criminals. If they can't keep from messing their diapers, I'm of a mind to put them in the big kindergarten upstate.

When the states got tough with criminals, the crime rates fell through the basement. Too many of our citizens were experiencing crime at the hands of people who were third, forth, fifth, and ten time felons. I think it would be a real mistake to step back from this approach to crime.

I do realize there are valid arguements on the other side.

I think the courts have been operating under a largely false assumption about the eighth amendment. Its purpose, as I understand it, was to prevent judges from exercising arbitrary power against people. Note that it prohibits "cruel and unusual punishments", not "cruel or unusual punishments". IOW, if a legislature sets the punishment by law, it's by definition not unusual, because that's the new standard. The idea seems to be simply to hold judges to the law, not to pass judgment on the law itself.

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