Eugene Volokh offers a useful corrective to some of the most heated anti-three-strikes rhetoric, and in doing so he tries to tell a plausible story that would justify the statutory scheme. But I think he is too generous to both the justice and the efficiency of the law as written, which is really not defensible on either ground.

Like all repeat-offender laws, by concentrating on the total number of offenses it ignores the question of the offender’s personal offense rate. Two burglary convictions in two years suggests either a very serious criminal or a very incompetent one; the same two convictions over ten years tell a very different story. That’s one big problem.

The other problem is that the definition of a felony under California law is absurdly wide. Simple possession of any controlled drug except cannabis is a felony. Petty theft — no matter how petty — is a potential felony (at the discretion of the prosecutor) if the defendant has ever been jailed for a prior petty theft. And the inclusion of any residential burglary (even one committed unarmed, without confrontation, and without an actual breaking and entering) as a “serious or violent felony” — and thus a potential first or second strike — means that the law stretches way beyond the sort of persistently violent predator that its proponents like to talk about. [The California Senate Republican Caucus, after correctly reciting the actual statutory provision, then argues “By definition, a defendant convicted under Three Strikes is a repeatedly convicted violent felon.” By definition, yes, if you’re willing to say that “violent or serious” is the same thing as “violent.” But a prominent Republican once remarked that calling a tail a leg doesn’t make it one.]

In practice, the discretion excercised by prosecutors in not charging “strikes,” and by judges in waiving them in the interest of justice, reduces the frequency of really outrageous excess. But a law under which someone who has never inflicted, or even threatened, violence can be sentenced to twenty-five years in prison for drug possession or petty theft really can’t stand close scrutiny.

But while it’s the third-strike cases that draw most of the attention, most of the action is in the second-strike cases. Once someone has a “first strike,” any subsequent felony, even a converted petty theft, generates a mandatory prison term. And in fact three-quarters of “second-strike” sentences involve nonviolent, non-serious crimes, according to the Legislative Analyst’s Office.Of the 60,000 people serving time in California prisons under the “three strikes” law (more than a quarter of the total prison population), about 80% are second-strike rather than third-strike offenses.

In terms of crime control, prison cells spent on people past the age of forty are mostly wasted. There are exceptions to that rule, and a carefully crafted career-criminal statute would be narrowly tailored to pick up those exceptions. But the three strikes law is anything but narrowly tailored. And Eugene’s optimism about legislative fixes may be excessive: the charge that “my opponent voted to weaken the law that keeps violent predators behind bars” is much easier to make than to refute. A truly consensus measure might make it through, but any opposition from the District Attorneys or the correctional officers’ union would almost certainly be enough to kill any proposal, whatever its merits.

That doesn’t mean that the federal courts ought to step in. (Though it does seem a logical inference that, had imprisonment been a conventional form of punishment in the Eighteenth Century, “excessive terms of imprisonment” would have been added “cruel and unusual punishments” and “excessive fines,” it’s not obvious that judges are naturally better than legislators at identifying excess.) But it does mean that if the courts don’t step in, the law is likely to remain in place, and continue to generate sentences that are neither just nor cost-effective as crime control.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: