Supreme Court Should Oust "Three Strikes" Laws

It's hard to say whether it's a good or bad thing that the U.S. Supreme Court agreed to review the three strikes law. The court has been granite-like in its opposition to anything that even faintly tilts toward civil liberties in prisoner rights cases. But if there's one prisoner rights issue that screams for redress, it's three strikes.

Twenty-six states now have three strikes laws on their books. The law mandates that repeat offenders be slapped with severely enhanced sentences. In some states, a defendant convicted of a third offense, no matter how petty, can be slapped with a prison sentence of 25 years to life.

The draconian law blatantly violates the 8th Amendment prohibition against cruel and unusual punishment. In February the U.S. 9th Circuit Court of Appeals agreed and overturned the convictions of two three strike prisoners in California. These two cases tell much about what's wrong with the law. The two prisoners, Gary Ewing and Leandro Andrade, were not convicted rapists, murderers, sexual pedophiles, bank robbers, arsonists, or drug kings. They were petty thieves. A judge tossed the book at Ewing for trying to steal three golf clubs from a golf shop, and at Andrade for pilfering videotapes from two Kmart stores.

Despite its revulsion at the atrociousness of the law, the appeals court did not take the next logical step and void the law completely. This means that hundreds of three strike offenders continue to be herded into already bulging jail cells. The majority of them are Latinos and African-Americans. They are jailed mostly for non-violent crimes such as drug offenses or petty theft, and taxpayers are forced to spend extra millions to feed, house, and provide medical care for them while they while away decades in prison. Andrade, for instance, won't be eligible for parole until 2046. By then he'll be 87.

There's much cause to fear that even more prisoners will continue to pack prisons under the law. Most DAs in states that have three strikes laws have not given the slightest hint that their enthusiasm for nailing repeat offenders with three strike convictions has waned.

Every attempt to dump or change the law 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 reports, studies, and government statistics that show that crime has dropped. Crime is crime to much of the public. Few are willing to make any fine distinctions between someone who robs a bank or sells or possesses 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.

The second reason 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. Few politicians will dare risk being branded as soft on crime by pushing for reform or elimination of the law. They regard this as political suicide for them come election time.

Many other politicians reflexively defend the law by claiming that it is a powerful weapon to fight crime and that scrapping it would dump more violent criminals back on the streets. That was the rationale of California's Attorney General, an elected official, who practically demanded that the Supreme Court reverse the appeals court decision. There's no evidence that three strikes deters let alone reduces crime. In states such as New York that have no three strikes law, the crime rate has plunged just as sharply as California's rate. It dropped because of an aging population, an improved job and business climate, the expansion of community policing programs, and more effective youth and adult drug counseling and treatment programs.

Three strikes needlessly imprisons thousands of persons who commit petty crimes, and criminalizes a generation of young black and Latino males. For a fraction of the cost of preserving three strikes, most of these desperate souls could be helped by more drug treatment and job and skills training programs. Some states such as California are putting more resources into treatment and prevention programs that are proving far more effective in helping people turn their lives around than simply warehousing them in prison cells.

Given the Supreme Court's abysmal track record on prisoner rights cases, there's scant hope that the court will dump the law. But if a miracle happens and it does, it would bring some sanity back into the 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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