Three Strikes 15 Years Later: We’re All Out -- of Money, and Time

This month the California Supreme Court heard arguments in the case of Richard Allen Davis, who kidnapped and murdered a young girl named Polly Klaas over 15 years ago. The murder of Polly Klaas led to a wave of fear among Californians. That fear quickly turned to outrage and that outrage quickly led to the most heavy-handed, over-reaching, costly, and ineffective sentencing policy in California history. This policy has cost the state billions of dollars to incarcerate thousands of people convicted of nonviolent offenses for extraordinarily long periods. This month is the 15th anniversary of California's Three Strikes law.

Richard Allen Davis is a very violent person who should be imprisoned for a very long time. But California did not react to Polly Klass's murder by enacting a law to ensure that the Richard Allen Davises of the world would spend their lives in prison. (In fact, Mr. Davis was sentenced to death under existing California law). Instead, Californians saw fit to require that anyone convicted of any felony who had previously been convicted of more than one serious or violent felony would be sentenced to 25 years to life. A person with a prior conviction of one previous serious or violent felony would receive twice the prison term for any new felony conviction. There are a lot of felonies under California law, including petty theft with a prior and possession of a controlled substance. We now have people serving 25 years to life in California for drug possession, for stealing a pizza, or--in at least one sad case--a few chocolate chip cookies. Under California's Three Strikes law, first and second "strikes" are counted by individual charges, rather than individual criminal cases. This means two or three strikes can arise from a single case, even a case that was adjudicated years before the passage of the three strikes law. Convictions from all 50 states and the federal courts at any point in the person's past can count as strikes, including some offenses committed as a juvenile. Because of three strikes, California has been filling its prisons with a lot of people for long periods of time, many of whom do not deserve the lengthy sentences that judges have been forced to hand down. For example, there are 3,520 people in California's prisons on second or third strikes for drug possession offenses. At least 690 of them, convicted of third strikes, are serving sentenced of 25 years to life. It costs $49,000 a year to incarcerate a person in a California prison. It costs two or three times that amount to incarcerate older persons because of health care costs. Most persons serving a third strike will grow old and die in prison. It is costing Californians over $172 million each year to house persons convicted of a second or third strike for simple drug possession. Drug treatment is far cheaper--about one-tenth the cost--and far more effective. To be sure, some of the 41,089 second and third strikers in California prisons today are there for violent crimes. Those persons should receive long prison sentences--and they would have even without three strikes. But many of these so-called "strikers" are in prison for minor crimes that we--and eventually our children--will pay tens and hundreds of millions of dollars a year to lock away. California's Three Strikes law is the epitome of policy being driven by fear and politics rather than by reason and science. Unfortunately, much of the state's penal policies are similarly rooted. This is why California, for decades, has ignored the sound, cost saving, evidence-based recommendations of experts, blue ribbon commissions, and academic researchers as to how to sensibly cut costs and increase public safety through proven sentencing and parole reforms. This is why California's prisons are operating at nearly 200 percent capacity with inmates triple-bunked in hallways, gymnasiums, classrooms and clinics. This is why California spends over $10 billion annually on failing prisons, and why state officials have lost control of those prisons to federal judges.