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Posted on 01/15/2003 10:53:47 AM PST by Imal
Introduction
First, some background on why I decided to start a thread on this topic. In responding to another article, How Two People Researching A TV Show Got in a Gunfight, fellow FReeper Don W made a comment in this post that, to put it mildly, raised an eyebrow:
"Then there's the 3 strikes thing: Would this guy have drawn and fired at the cops had the fear of hard time not been there? It seems to show that mandatory sentencing is counter-productive, unless you like firefights in the streets."
My response was rather strongly worded, and from there a "passionate debate" (i.e., not quite a flame war) ensued. In the discussion process, I found myself elaborating on my objection to the idea that "three strikes" laws somehow cause crime, and think the debate of this specific topic on moral grounds is worthy of pursuit.
While I usually prefer not to take a discussion off of its original thread (or appear to be chest-thumping in doing so), I believe this topic, which is somewhat tangential from the topic of the original article, stands on its own. And although there is no shortage of debate or threads on "three strikes" laws, I think the specific issue of "Do 'Three Strikes' Laws Cause Crime?" is germane to the crime, culture and government discussion categories.
Having said all this, and with apologies for context and stridency, here is an excerpt from my latest post on the topic, made in response to a post by Eagle Eye, which I think reasonably outlines the nature of the debate on this issue:
The Debate: Do "Three Strikes" Laws Cause Crime?
Laws no more cause crime than forks cause obesity, however, laws can re-define actions to make a once legal action illegal.
To the extent you hold the opinion that laws don't cause crime, I agree with you. And that's the crux of my strong disagreement with Don W's reaction to this article:
"Would this guy have drawn and fired at the cops had the fear of hard time not been there?"
This sort of speculation, followed by the conclusion that "mandatory sentencing is counter-productive, unless you like firefights in the streets", obviously bothers me a great deal.
Why? Because it amounts to blaming laws for violent crime. I don't buy that for a second, and consider such assertions tremendously hurtful to the cause of fighting crime.
When people deliberately choose to do harm to others, it is NOT the fault of the law.
First of all, I think that we agree that we should never need Three Strike laws, that repeat felons should not be on the streets. In order for a person to be CONVICTED of even two felonies, they will probably have participated in dozens and probably have been arested for several prior acts that either resulted in lesser pleas or straight releases.
I'm with you that "three strikes" laws are, at best, a reaction to a combination of poorly written laws and, consequently, poor results in court. Blaming judges for bad legislation, however, is like blaming the IRS for the tax code. The responsibility for problems with law lies squarely with lawmakers.
Look at states where "three strikes" laws are so popular, and you'll find criminal codes, such as in California, that routinely specify sentences that are unreasonably light for many violent crimes. California courts operate under California law. So do California parole boards. That is how California ends up with so many violent repeat felons running around free.
By contrast, committing these same violent felonies in neighboring Nevada leads to a very different outcome: long stretches in a state prison out in the middle of the desert with no parole. And criminals know this. Of course, there is still plenty of violent crime in Nevada, but much less of it committed by repeat offenders -- and a lot of it is "imported" from out of state (at any given time, Nevada has a huge number of non-Nevadans within its borders, many drawn here by the idea of "easy money". Crime follows).
The difference between Nevada and California lies not so much in the courts, but on the laws under which they operate. If rulings are "bad" (say, convicted first-degree murderers receiving 2-year sentences) simply because judges and juries exercise discretionary authority under existing laws, then the laws can be changed to correct these problems.
But the bottom line on "three strikes" laws is that, regardless of the motivations behind them, they are still laws, and exist for a reason. We both seem to think that they are a bad way to deal with fundamental problems with the criminal code, but our opinions are merely our opinions. If a state wants to specify an additional penalty for repeat offenses, I see nothing morally, legally or practically wrong with that.
Laws do set penalty ranges, but mandatory sentencing at first appears to be 'checks and balances' in operation, but in reality steals judgment and discretion from judges that need it. Those that take the "we must do something" approach (which usually means passing more meaningless laws) always seem to applaud more and more laws instead of enforcing the ones on the books.
Criminal laws define criminal conduct, and specify penalties for it. Do you know of so much as a single criminal law that does not specify a punishment for breaking it? If you do, I would be very interested in it.
This is were your argument begins to unravel, because it appears to be based on the notion that criminal laws should not specify penalties for breaking them. Am I wrong in observing this? If so, please explain how.
As an illustration of my point, I present a fairly typical example:
Nevada Revised Statues 200.380 2. A person who commits robbery is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years.
The statute is not at all ambiguous. If you are found guilty of robbery in Nevada, you WILL serve a term of not less than 2 years. That's a mandatory sentence. Commit robbery in Nevada, regardless of circumstances, and you face two years in the state prison. Not county jail, and not probation.
Meanwhile, the best you can hope for if you are found guilty of first-degree murder is twenty long years of hard time before you even become eligible for parole. But you are far more likely to face death or life without parole. (NRS 200.030)
In both cases, the law specifies minimum, mandatory sentences for committing certain crimes. There is nothing wrong with that.
In this particular case, the criminal was already committing a felony by carrying a firearm. He was probably already invovled in others. He did not know that the cops simply wanted to talk. Would he have immediately opened fire if he didn't feel threatened and cornered? Probably not.
This perspective simply amazes me. You appear to be arguing that this felon, who clearly knew full well that he faced a life sentence for what he was doing, was therefore driven to commit a crime he wouldn't have otherwise committed.
Well guess what? Bank robbers wouldn't shoot at police or civilians -- or even need weapons at all -- if bank robbery weren't illegal. So, by this incredibly specious logic, bank robbery -- or any crime that may "lead" criminals to "commit violent acts" because they face harsh penalties -- should be legal. Breathtaking!
No, the laws did not "cause" he criminal activity, however they do escalate the amount of resistance the police are likely to encounter upon contact. And quite often, as in this case, the cops may not realize that they are encountering a two-time loser that will go ballistic without warning because they fear going back to prison more than they fear losing their lives.
Again, I marvel at the implications of this statement. This is what you think the problem is? That the law specifies harsh punishments for serious crimes? Do you honestly believe this?
Please, help me to find sound reasoning in this argument, because I am unable to. I can see how you might get this mistaken idea, but I can't see how you could promote it if you had actually thought it through. I don't mean for this to sound insulting; I find this genuinely baffling.
Are we to not have harsh punishments for criminal behavior? Are harsh punishments the problem? I invite you to make your case, but please understand that I'll have a very hard time accepting this premise.
Yes, the felons themselves make a conscious decision to kill or not kill.
But we all know how smart it is to leave decisions to felons.
These laws were passed by legislatures because judges were too lenient in their sentencing - in other words, judges were allowed to pass sentence without having to experience the real world impact of their decisions - increased crime, etc.
So the law incentivizes felons to behave worse, and it does not incentivize judges to behave better.
A better law might be one that mandates dismissing judges whose sentencing leads to recidivism and to jail time for judges who are negligent regarding the safety concerns of the communities they supposedly serve.
The unacknowledged assumption behind this claim is that three strikes laws unfairly impose "hard time" for offenses they shouldn't.
Your argument presumes no deterrent effect to punishment under law. I disagree with that presumption, because it is equivalent to claiming that there is no point in dispensing punishment for any crime.
That is a moral surrender I cannot agree with.
Not necessarily. Here in Washington, where it started, back in '94, it was by initiative sold on the basis of "90% of the crimes are committed by 10% of the criminals; this will cut crime way down."
Something didn't seem right about this; I discovered the feds had conducted recidivism studies, and the results of those studies did not support the assertion. And in fact, having 3 strikes hasn't cut down on crime the way it was supposed to.
In other words, "the law makes the murderer". I think I addressed this fallacy rather thoroughly in the article.
Yes, the felons themselves make a conscious decision to kill or not kill.
But we all know how smart it is to leave decisions to felons.
How would you propose that we take these decisions away? Aside from mind control or killing them outright, we are left with incarceration or incapacitation of some kind. But it doesn't happen on its own.
These laws were passed by legislatures because judges were too lenient in their sentencing - in other words, judges were allowed to pass sentence without having to experience the real world impact of their decisions - increased crime, etc.
I am unfamiliar with any cases related to "three strikes" in which judges issued sentences in violation of the law. If the law allows a judge or jury to pronounce a light sentence, then objections to that fact should be addressed to the law, not to the people who are obeying it.
So the law incentivizes felons to behave worse, and it does not incentivize judges to behave better.
I truly fail to see how tougher sentences lead criminals to commit more crime. I understand the "they wouldn't shoot at cops if they weren't two-strikers" argument, but cannot agree with it anymore than I can agree that tough penalties for committing any crime are the motive behind committing them.
A criminal with a gun and the will to shoot it at someone is a potential murderer, regardless of his legal status. To argue that laws should be weakened to prevent criminals from killing lacks a reasonable moral foundation, however well-intentioned the motive.
A better law might be one that mandates dismissing judges whose sentencing leads to recidivism and to jail time for judges who are negligent regarding the safety concerns of the communities they supposedly serve.
How about laws requiring tougher sentences for committing violent crimes? Wasn't that the problem in the first place?
Yes, although they are by no means alone in that regard, and that doesn't mean they are unworthy of pursuing.
Before three strikes, if you awoke to find a burglar in your home the guy would run. He knows the odds are that you won't be able to identify him.
Now, he won't take that chance and is going to kill you.
Therefore, we should soften the laws so that criminals won't kill us. Is that a fair interpretation?
March 6, 1967:
At age 12, Davis has his first contact with law enforcement when he was arrested for burglary in Chowchilla, where he lived with his grandmother.
May 24, 1967:
Arrested again for forging a $10 money order. He was briefly in Juvenile Hall before his father moved him and his siblings to La Honda.
Nov. 15, 1969:
Arrested for the burglary of a La Honda home.
Nov. 16, 1969:
The first of several occasions when Davis' father turns Davis and his older brother over to juvenile authorities for ``incorrigibility.''
September 15, 1970:
Arrested for participating in a motorcycle theft. A probation officer and judge accept his father's suggestion that he enlist in the Army to avoid being sent to the California Youth Authority.
July 1971:
Entered the Army. His military record reflects several infractions for AWOL, fighting, failure to report and morphine use.
Aug. 1972:
General discharge from the military.
Feb. 12, 1973:
Arrested in Redwood City for public drunkenness and resisting arrest. Placed on one-year summary probation.
April 21, 1973:
Arrested in Redwood City for being a minor in possession of liquor, burglary and contributing to the delinquency of a minor. Charged with trespassing, later dismissed.
Aug. 13, 1973:
Arrested in Redwood City leaning against hedges extremely intoxicated. Released when he was sober.
Oct. 24, 1973:
Arrested in Redwood City on traffic warrants. Between April and October, he was implicated in more than 20 La Honda burglaries, leading a probation officer to report that residents were so angry at him, he might be in danger if he returned to La Honda. He pleaded guilty to burglary and was sentenced to six months in county jail and placed on three-years probation.
May 13, 1974:
Arrested for burglarizing South San Francisco High School. He is sent to the California Medical Facility, Vacaville, for a 90-diagnostic study. A county probation officer recommends prison, but proceedings are suspended when Davis enrolls in a Veterans Administration alcohol treatment program. He quits on the second day.
Sept. 16, 1974:
Sentenced to one year in county jail for the school burglary. He was allowed to leave jail to attend a Native American drug and alcohol treatment program. He failed to return, leaving behind two angry fellow inmates who had given Davis money to buy drugs and bring the contraband back to jail.
March 2, 1975:
After being released, the two inmates tracked Davis down and shot him in the back. He is rearrested on a probation violation for failing to return to jail. Later, he testified against the inmates, earning him the epithet of ``snitch'' from fellow inmates. He was placed in protective custody.
April 11, 1975:
Arrested for parole violation.
July 11, 1975:
Arrested for auto theft and possession of marijuana. Received 10-day jail sentence.
Aug. 13, 1975:
Probation revoked after arrest for San Francisco burglary and grand theft. He was sentenced to a term of from six months to 15 years in prison.
Aug. 2, 1976:
Paroled from Vacaville.
Sept. 24, 1976:
Abducted Frances Mays, a 26-year-old legal secretary, from the South Hayward BART station and attempted to sexually assault her. She escaped, hailed a passing car, in which California Highway Patrol Officer Jim Wentz was riding. Wentz arrested Davis.
Dec. 8, 1976:
Transferred to Napa State Hospital for psychiatric evaluation after he tried to hang himself in a cell at Alameda County Jail. He later admitted he faked the suicide attempt in order to be sent to a state hospital, where he could more easily escape. He was mistakenly admitted as a voluntarily patient rather than a prisoner.
Dec. 16, 1976:
Escaped from Napa State Hospital to went on a four-day crime spree in Napa. He broke into the home of Marjorie Mitchell, a nurse at the state hospital, and beat her on the head with a fire poker while she slept. He broke into the Napa County animal shelter and stole a shotgun. He used the shotgun to try to kidnap Hazel Frost, a bartender, as she climbed into her Cadillac outside a bar. When she saw he had bindings, she rolled out of the car, grabbed a gun from beneath the seat and fired six shots at the fleeing Davis.
Dec. 21, 1976:
Broke into the home of Josephine Kreiger, a bank employee, in La Honda. He was arrested by a San Mateo County sheriff's deputy hiding in brush behind the home with a shotgun.
June 1, 1977:
Sentenced to a term of one to 25 years in prison for the Mays kidnapping. A sexual assault charged is dropped as part of a plea bargain. He is later sentenced to concurrent terms for the Napa crime spree and the La Honda break-in.
March 4, 1982:
Paroled from the Deuel Vocational Institute in Tracy.
Nov. 30, 1984:
With new girlfriend-accomplice Sue Edwards, he pistol-whipped Selina Varich, a friend of Edwards' sister, in her Redwood City apartment and forced her to withdraw $6,000 from her bank account. Davis and Edwards make a successful escape.
March 22, 1985:
Arrested in Modesto when a police officer noticed a defective taillight. He and Edwards were charged with robbing a Yogurt Cup shop and the Delta National Bank in Modesto. Authorities in Kenniwick, Wash., were unaware for several years that the pair had robbed a bank, a Value Giant store and the Red Steer restaurant during the winter of 1984-85. Davis later confessed to the crimes in an attempt to implicate Edwards, whom he believed to have welched on a promise to help him while he was in prison.
June 27, 1993:
Paroled from the California Men's Colony, San Luis Obispo, after serving half of a 16-year sentence for the Varich kidnapping.
Oct. 1, 1993:
Davis kidnapped Polly Klaas during a slumber party at her Petaluma home and murdered her.
Oct. 19, 1993:
Arrested in Ukiah for drunken driving during the search for Polly. He failed to appear in court.
Nov. 30, 1993:
Arrested for parole violation on the Coyote Valley Indian reservation north of Ukiah, he is identified as the prime suspect in the kidnapping.
Dec. 4, 1993:
Davis provides investigators with information that leads them to Polly's body off Highway 101 near Cloverdale.
Dec. 7, 1993:
Charged with the kidnap-murder of Polly.
June 18, 1996:
Convicted of kidnap-murder of Polly.
August 5, 1996:
Superior Court jury in San Jose recommends death sentence.
Source: Sonoma County district attorney's office, court records, trial testimony.
This is an interesting observation, because it logically leads to the question "then what should we do about it?"
For my part, I don't think "three strikes" laws are the right way to go. Punishments fitting the crimes associated with them are.
However, sentencing for any crime should consider past offenses, and many statutes are written in such a way as to address exactly that.
Instead of the sledgehammer of "three strikes", progressively stronger sentences, proportionate to both the crime and the criminal, for repeat offenders seems far more reasonable to me.
Instead of falling off a precipice into a life sentence, habitual criminals that can't be reformed are methodically guided to old age, probably spending most of their lives in prison. Sad, but pretty much the only treatment option currently available. And would mind control really be a good idea, if we had the option of using it?
But capitulating to violent criminals and pulling the teeth of our criminal legal system is never a good idea, and only leads to far worse problems than it could possibly correct.
Just this paragraph alone goes a long way in explaining what is wrong with California's legal system.
If California is truly concerned at all about violent crime, they may want to 1) increase penalties for violent crimes (one year for kidnapping?), and 2) prosecute criminals for those crimes.
Beware, because that is a rather controversial idea. :P
Makes you wonder how many other crimes, including violent crimes, the average career criminal commits that he doesn't get arrested for. So even if stealing a bike is a criminal's 3rd strike that sends him back to prison for the next 25 years, rest assured that he got away with many other crimes that he had committed. So he is really getting punished, not legally but in reality, for a number of additional crimes, and not just for stealing the bike.
So in a state with a "3 strikes" law and the death sentence, the difference between not killing a police officer and killing a police officer, who is trying to arrest you for what would be your 3rd strike, is receiving 25 years in prison or receiving a death sentence after being tried in a court of law.
Any large police department will tell you that there are unsolved cases of copkillers - capture is not inevitable.
Many researches feel that the one of the main reasons that violent crime is on the decline in the US is because career criminals are spending more time in prison and less time on the streets.
I remember a case about 15 years ago where a guy got out on parole for rape, committed another rape, was on bail for that, and while on bail raped and murdered an LSU student. That case and Richard Allen Davies are the two that I remember when people start arguing against three strike rules.
I think that it's unfortunate that we ever got to the point where people felt we needed these. But lenient sentences for career criminals are what drove them. In one example I saw that happened in the 70s, a career criminal with two prior felony convictions received a 20 year sentence, but ended up serving only two years before his release. He went on to commit more crimes before killing someone.
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