Three Strikes Law Weakened, but Not Overturned

There has been much rejoicing among opponents of "three strikes" laws this week, after a federal appeals court overturned the convictions of two three strike prisoners in California. The U.S. 9th Circuit Court of Appeals ruled on February 8 that California's three strikes law -- which mandates that if someone is convicted of a third offense, no matter how petty, they can be slapped with a prison sentence of 25 years to life -- violated the 8th Amendment prohibition against cruel and unusual punishment.

But despite the favorable court ruling, it's far to soon to uncork the champagne bottle in celebration. The court did not toss out the three strikes law, and most DAs in California, and the more than two dozen states that have three strikes laws, have not shown any sign that their enthusiasm for nailing repeat offenders with three strike convictions has waned. This means that hundreds of three strike offenders will continue to be herded into bulging jail cells.

The majority of them will be Latinos and African-Americans. They will continue to be jailed mostly for non-violent crimes such as drug offenses or petty theft, and taxpayers will be forced to spend billions to feed, house, and provide medical care for them while they while away decades in prison.

So far, every attempt to dump or change the law in California and other states by initiative or legislative action has failed miserably. There are two reasons why. One is that much of the public is scared stiff of crime.

They are not reassured by the rosy reports, studies, and government statistics that show that crime in California and the nation has dropped. Crime, any crime, causes shivers of rage and trauma in most people. Nearly everyone can tell a story of someone whose house was broken into, had their purse snatched, car stolen, or were assaulted. If they don't have a personal story to tell about crime, the nightly newscasts gladly spoon-feed them a steady diet of car jackings, rapes, murders, fast and slow car chases.

The second reason three strikes is far from dead is that politicians obsessively check the opinion polls. They know that there is no detectable swing in public sentiment toward modifying, let alone eliminating, the three strikes law, as there has been nationally for scrapping the draconian sentences for petty drug crimes. Few politicians will run the risk of being tagged as soft on crime by calling for reform or elimination of the law. Such a call is regarded as a political death knell come election time.

Even the recent widely publicized pleas in California of Mark Klass have largely fallen on deaf public ears. The father of Polly Klass, whose murder ignited public furor and propelled the passage of three strikes laws in many states, has urged that three strikes apply only to violent criminals.

But it's still the right plea to make. The three strikes law should only apply exclusively to violent criminals. But even this logical, but tepid reform, faces rough sledding. Crime is crime to much of the public. Few are willing to make any fine distinctions between bank robbery and the sale or possession of a small amount of cocaine. The perception is that the cocaine dealer or user today could be the bank robber or murderer tomorrow.

Therefore, it's better to get them off the streets before that happens.

California State Secretary, Bill Jones, a California Republican gubernatorial candidate, who co-wrote one of the first three strikes laws nearly a decade ago, blasted the federal court's ruling, saying that it would dump more violent criminals back on the streets. He maintained that the crime rate in California has plunged faster and more drastically than in other states, and attributes the big drop to three strikes laws.

Despite the monumental obstacles that still block a much-needed overhaul of three strikes laws, three strike enthusiasts and state officials sooner or later must confront some terrible realities. Three strikes needlessly imprisons thousands of persons who commit petty crimes. For a fraction of the cost of preserving three strikes, these hapless souls could be better helped by more drug treatment and job and skills training programs.

Then there's the fact that in several states such as New York, which has no three strikes law, the crime rate has plunged just as sharply as in California. It dropped because of an aging population, the state's improved job and business climate, the expansion of community policing programs, and more effective youth and adult drug counseling and treatment programs.

But, worst of all, three strikes criminalizes a generation of young black and Latino males. Despite the harsh consequences of the law, and the public and lawmakers' penchant for keeping it, the court's ruling offers a glimmer of hope that sanity may eventually prevail in sentencing laws.

Earl Ofari Hutchinson is an author and columnist. Visit his news and opinion website: He is the author of The Crisis in Black and Black (Middle Passage Press).

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