LOCK EM UP?

Wednesday, April 23, 1997

Lance Izumi, Pacific Research Institute and Hoover fellow Joe McNamara debate the following questions: Are states failing to lock up enough criminals for long enough? Is prison incarceration a cost-effective strategy for fighting crime? Does a higher incarceration rate deter crime?

Recorded on Wednesday, April 23, 1997

ROBINSON: Welcome to Uncommon Knowledge. I'm Peter Robinson, a fellow at the Hoover Institution. Our show today: crime and punishment. From the earliest days of our republic, we Americans have been torn between two goals in dealing with criminals--punishment and rehabilitation--our attitudes shaped by the moral codes set forth in this book, the Bible. An eye for an eye, a tooth for a tooth. Punishment and retribution. Turn the other cheek. Do unto others. Compassion and fairness. The penitentiary, after all, is a place to be penitent, to atone for one's sins. But in modern America, with crime on the rise and career criminals set free time and again, we look not only to God and the good book for guidance but to Abner Doubleday and this book, The Official Rules of Baseball. You see, in recent years, a number of states have passed so-called "three strikes" legislation. Here in California, three strikes means that, if a criminal has two previous felonies on his record, two previous strikes, then the third time he commits a felony he must be sentenced to no fewer than twenty-five years in jail. Three strikes and the criminal is out. What could be more fair?

Well, as you listen to our guests, you'll see it isn't quite that simple. Joe McNamara is a former San Jose chief of police, now a fellow at the Hoover Institution, and Lance Izumi is a senior fellow in California studies at the Pacific Research Institute. We began with a question that's simple but fundamental to any discussion of punishment.

GIVE ME YOUR PEPPERONI AND NO ONE GETS HURT

ROBINSON: Let me ask an absolutely basic question: Why do we put people in prison? I can think of three reasons, three plausible reasons. One is to punish them, retribution; one is to reform them; and the other is just to keep them away from the innocent, lock them off from the rest of society. You'd go for all three? In your view, what should the motivation for putting people behind bars?

IZUMI: Well, I think that all three of those are very good reasons for keeping people behind bars, and certainly if someone is a criminal who has shown that he is going to commit lots of crimes, I think you're going to want to incapacitate that person so that he isn't praying upon the innocent. And also, if he's committed a very serious crime, you know, for the sake of victims and others who have suffered, you want them to have some sort of punishment that fits the crime.

ROBINSON: So, if somebody commits three felonies in his twenties or even the late teens, gets locked away for twenty-five years minimum, now in his forties--you still want that person in jail, just to punish him?

IZUMI: Well, for punishment, yes. I mean, certainly if it was a serious crime.

ROBINSON: Joe?

McNAMARA: Let me go back to something that you left out. A major part of why we do this, of course, is to prevent crime.

ROBINSON: I don't think I left that out. That's keeping them away from the rest of society.

McNAMARA: And one way of doing that is to incapacitate them because they're in prison and they can't rape someone in the general population and so on. But the rehabilitation argument just doesn't hold water. The recidivism rate is enormous. Prison does not make people better people. When they get out, they're less likely, less able to earn a living; they're more likely to get into trouble; and they're more likely to be violent, because prisons are violent places.

ROBINSON: But you'd argue just the reverse--that prison is a school for criminals?

McNAMARA: So, I think, what we need to is to say, "Well, are we spending our money in the right way in doing this?" And then there's another part of it, a basic sense of justice which every free society has to have. What makes our country different is that we're not barbarian, we don't execute people for minor crimes. Up until recently, we didn't give people life in prison for stealing a bicycle, for a property crime. Now, these crimes are wrong, and I think people should be punished for them--but we become a different kind of country when we stop caring and say, "So what? Sure he only stole a radio, but by God we're going to give him life in prison because he may do something in the future."

ROBINSON: Now, wait a second now. If the third offense is minor, the guy doesn't get put away forever if the other two previous offenses are minor. Tell me about--there's a famous case where the guy got picked up and the third offense was stealing a slice of pizza, right? Now, you've written about that, Lance.

IZUMI: Yes, I mean, the guy who was the famous pizza thief, you know, who stole slice of--

ROBINSON: Sentenced under three strikes.

IZUMI: Sentenced under three strikes. Stole a piece of pizza--who, I must say, was six-foot-four--stole this piece of pizza from a group of very small children. Had an arrest record and a conviction record going back quite a number of years. It included robbery, attempted robbery. He had been convicted not just in California but also in the state of Washington. He had used a number of aliases, a number of social security numbers. I mean, the guy was a crime spree. You know, the fact of the matter that he got put away just on this pizza theft masked the fact that this guy brought with him a long record.

ROBINSON: So, your argument is that that is exactly the kind of guy that the three strikes legislation is designed to scoop up.

McNAMARA: When you look at his past record--now, that was, the charge on that case was not stealing a piece of pizza; it was robbery. And so you have to be very careful. These are very ambiguous legal terms. The fact that is under our system doesn't mean your guilty. In fact, we are presumed to be innocent until they can prove you are guilty in court.

ROBINSON: Joe's basic claim seems to be that the public is overreacting. But, wait a minute, is that true?

BARBARIANS AT THE GATE

ROBINSON: You're saying that the three strikes legislation, because some people on the third offense, the third offense is relatively minor, they get slammed away for a long time, that tends to coarsen our society. My point is: Hold on a second. Maybe it's not the public so much voting for three strikes legislation that has coarsened and made society barbaric as the criminals. And maybe the republic is reacting to something which is real and genuine out there. The crime rate in California today is, as I recall, twice what it was thirty years ago. Is that correct?

IZUMI: Certainly, the crime rate here in California has dropped quite considerably over the last three years, because of three strikes in my opinion.

ROBINSON: Let's hear about that.

IZUMI: If you look from 1994 to 1996--

ROBINSON: 1994 is when it becomes law.

IZUMI: --when three strikes became law. I mean, the homicide rate in California has dropped by 30 percent; burglary has dropped by 25 percent; robbery rate, dropped by 27 percent or so. So, all these major categories of crime have gone down.

ROBINSON: And how many people have been put behind bars as a result of three strikes?

IZUMI: So far, I think the number of people has been upwards of about three thousand, probably, by now.

ROBINSON: So, Joe, how do you respond to that argument? Homicides are down, violent crimes are down--that's not a society growing more barbaric, that's better, right?

McNAMARA: Here's how I respond. I campaigned against three strikes because it wasn't limited to violence. Do you know who campaigned with me against it? Mark Klaas, Polly Klaas' father. He said that, initially, he thought it would be great because it would take care of violent people like the person who killed his daughter. He came out against it and said that this was really a bad piece of legislation. Now, those crime rates that Lance was referring to started down before three strikes, before mandatory sentencing, and not only that, they've gone down nationally, not just in California.

ROBINSON: How many states have three strikes legislation?

McNAMARA: Only California takes it as seriously as we do. There are about twenty states with it, but they're not using it. The study shows that only in California do we have these draconian sentences.

ROBINSON: Joe says the rates would have gone down anyway.

IZUMI: Yes, it is true that nationally crime rates have gone down, but I should mention that, since three strikes was passed in 1994, the rate of reduction in these major categories have been twice or three times as high here in California, this rate of reduction, than nationally in the other forty-nine states.

ROBINSON: Lance, hold on a second. Now, Joe says that about 80 percent of the people sentenced under three strikes were sentenced for nonviolent crimes and that--correct me if I'm misrepresenting you here, but--the legislation is drawn much too broadly, that there are, as you both say, thousands of felonies on the book. So, what about the argument that there's something barbarous or uncivilized about it?

IZUMI: Well, first of all, although there are lots of felonies on the book, the people who are being prosecuted for three strikes are not people who are being picked up just for minor drug crimes or petty thefts or those sorts of things. The people who are being prosecuted--for example, in--

ROBINSON: So, prosecutors have discretion?

IZUMI: Prosecutors have discretion over who they prosecute. Now, under the court rulings, the judges also have the discretion over which felonies they want to consider as a felony under three strikes. And so what I think you're going to see is that the people who are going to be prosecuted and convicted under three strikes are now going to serve those terms, are going to be people who really do deserve it because they are the worst of the worst.

McNAMARA: Now, the fact is that about 35 percent of the people prosecuted under three strikes are prosecuted for nonviolent drug offenses. Twice as many people have been sentenced under three strikes for marijuana as for rape, murder, robbery, and all of the violent--

ROBINSON: Marijuana? What--selling it? Just the possession of small amounts.

McNAMARA: Marijuana possession, marijuana with intent to sell. But twice as many prosecuted for marijuana crimes as for rape, robbery, murder, and the violent crimes combined. So, if it was for violence, I'd say it's great. In fact, we've spread the net so far we're not paying the attention to violent crime that we should. We should do much better. There's no reason for three strikes. One strike is enough for someone who commits a terribly violent crime and shoots someone else. I don't think we have to give them two more chances before we lock them up.

ROBINSON: All right, now Joe says that three strikes legislation was badly drafted, but wasn't it the best law that could have been passed?

THE ART OF THE PASSABLE

ROBINSON: And so what I want to know is do you support the three strikes legislation in and of itself or do you support it because it's the best legislation we're likely to get as a matter of political realities?

IZUMI: Well, certainly, as a matter of political reality, yes. Because if you looked at the way the legislature in this state was operating for a number of years before the enactment of three strikes, you would find that most of the tough-on-crime legislation often died in the--at that time Democratically controlled--criminal justice committees there. So it was virtually impossible to get any tough legislation for many years out of these committees, and so I think that's one of the reasons we have an initiative system here in California is so that people can at some point say, "We're fed up. The people in Sacramento aren't doing their job, and we want to be able to do it for them."

ROBINSON: If you were dictator of California for a day, how would you revise three strikes legislation? Or would you not?

IZUMI: I don't think that I would tinker with it that much, because I think that it has now--

ROBINSON: Okay, now you're saying something pretty arresting. It is basically good legislation?

IZUMI: I think that it is basically good legislation.

ROBINSON: And you're saying that it's basically bad?

McNAMARA: Well, the California Supreme Court, which is very conservative, appointed by Governor Wilson, declared part of three strikes unconstitutional.

ROBINSON: Which bit?

McNAMARA: When a judge refused to sentence a man to life in prison for possessing, oh, about this much of heroin. Instead, he gave him four years, and the prosecutor said, "No, under three strikes you've got to give him twenty-five years to life." Well, the California Supreme Court reviewed that and they said, "Hold on! In our constitution, we have three branches of government: the executive, the legislature, and the judiciary, and part of the judiciary function is sentencing, and so you can't give all the discretion to the prosecutor. The judge has a role to play there."

ROBINSON: In that case that you've just named, do you know what the two previous felonies were? Because that's part of the point, right?

McNAMARA: The point is--I've tried to make this over and over again--just because it says this guy had a robbery conviction doesn't mean he went into a bank with an Uzi. The robbery could be that he took a basketball from other kid or some person who was afraid of him. Now, that's wrong, but I don't think you give someone life in jail because they have part of that in their background--and it could even be part of their juvenile record, and it could have taken place twenty years ago.

ROBINSON: Another criticism of three strikes: Isn't it disproportionately hard on minorities?

"NYPD BLUE (AND BLACK AND BROWN)"

ROBINSON: Sixty to seventy percent of the people sentenced under three strikes legislation are black or Hispanic. Do you have any problem with that?

IZUMI: Well, certainly, it's troubling when you see that high a percentage of convictions for any community, be it white or ethnic, and so I think that it should trouble us as Americans that that is occurring. I think that what we should try and ask, the next question to ask is: What is the implication? What are people trying to say when they bring up a statistic like that? And I think some people would like to claim is that it's because there's some kind of institutional racism within the criminal justice system that produces these sorts of statistics, that somehow the white majority is out to oppress the ethnic minorities. But if that's the case, though, then why do we see no prosecutions, for example, on Japanese Americans, the Japanese American community, or certain other Asian communities. I think that what you see, what these statistics show, is not that there's some problem with the criminal justice system, but there are certain pathologies going on in certain communities.

ROBINSON: The legislation is not racist?

IZUMI: The legislation isn't racist. I mean, when you see--

ROBINSON: (To McNamara) You find that a laughable statement?

McNAMARA: Well, his explanation sounds pretty racist to me.

ROBINSON: You'd better say why, but we'll have Lance a chance to respond.

McNAMARA: Well, because of what he just said. He said that the Japanese and other groups, whites and Japanese, are not as crime-prone as blacks and other groups, and that's putting a racial explanation on it.

IZUMI: No, no, no, but that's not true, Joe. That's not true.

McNAMARA: But that's what you said.

IZUMI: No, no, no. I'm saying that there are certain other reasons, though, that are operating.

McNAMARA: And I would agree with that. And in fact, the police chiefs of America agree with that. Three out of five police chiefs said that we should be spending more money on youth programs than on prisons. There's something wrong in inner city communities.

ROBINSON: You just made a very serious charge against Lance, and I want Lance to--

IZUMI: Right, it's a very serious charge, Joe. I mean, but what I'm saying is something that James Q. Wilson at UCLA and others have pointed out--that within certain communities, I mean, it is true that you see higher degrees of welfare dependence, higher degrees of single-parent families, illegitimacy rates and that sort of thing, which are, as Wilson has said, reasons that are connected to higher crime rates. Now that has nothing to do with being racist. Those are just simply the realities of certain communities. What we have to look at is that these high crime conviction rates are really a symptom, not the cause here. And I agree with Joe: When I did work for the governor--

ROBINSON: Which governor?

IZUMI: Governor Wilson--on making some recommendations about crime strategies with regard to juveniles, early intervention efforts, I thought, were one of the most important things we could do. And certainly where we have the highest problems in certain communities, we should definitely target scarce government resources to those areas.

ROBINSON: At some point, you say to yourself, "Well, wait a minute. I don't know about this kind of school program or that kind of outreach program, but I do think it's time to put more of these guys behind bars." Is that so irrational?

McNAMARA: Well, no--

ROBINSON: It's not?

McNAMARA: That's an accurate description of the way the public has reacted. The facts are that the government has not evaluated either the prison incarceration program or the other programs to see just how effective they are. Now, what I'm saying is that we should stop lumping all crime together. There's a big difference between someone stealing your bicycle and someone breaking into your home at night with a weapon, where you're in danger. And that's what we've got to concentrate on. All throughout the world, there's a high crime rate. The United States is not overwhelmed by crime compared to England, Australia, and other countries. Where we are overwhelmed is with violent crimes, and so we have to focus more on violent crime. Three strikes doesn't do it. Eighty percent of the people being prosecuted under three strikes are for nonviolent crimes, despite all the political rhetoric, all the stuff that sounds good, all of the stuff to the public: "Hey, we're tough on crime!" We're not tough on violent crime. We have to be tougher, and three strikes gets in the way of being tougher.

ROBINSON: And you answer that how?

IZUMI: Let me say this. Last year the Sacramento Bee did a survey of over two hundred of these three-strike convictees, and they found that virtually all of them had a past record that included violent, not serious crime, violent crimes. And so we're talking homicide, attempted homicide, seriously bodily injury during robberies, and that sort of thing. And so that the people who are being put away are not people who are just there with a gram of cocaine.

ROBINSON: Violent or nonviolent, criminals are being locked up in increasing numbers. Where are we going to put all these bad guys?

ROOM WITH NO VIEW

ROBINSON: If you're committed to three strikes legislation, as you indeed are, then you have to be committed to building more prisons, don't you? You have to examine the whole question of cost effectiveness of prison. How many more prisons do we need over the next ten years, say, in California?

IZUMI: Well, certainly, the projections are that you're going to need enough to house, you know, maybe a hundred to a couple hundred thousand more prisoners.

ROBINSON: We have about a hundred and eighty thousand in prison, in state prisons, in California now?

IZUMI: It's about hundred and thirty to hundred and fifty.

ROBINSON: So, you're saying that the population will at least double?

IZUMI: Could double, yes, within the next, let's say, ten years.

ROBINSON: So, we're talking about tens of millions of dollars, a charge against the California taxpayers to build more prisons to put these people away. And it's worth it?

IZUMI: In my view, it is worth it. I mean, it's hard to put a dollar value on somebody who is killed, who would be living had that person had a space in a prison. I think that if you look at what academicians have done in terms of balancing social costs of crime versus the prison costs, you'd find out--for example, John de Ulio of Princeton University has found that the social costs of somebody out committing crimes is three times as high as someone who is sitting in a jail.

ROBINSON: Joe? Tens of millions of dollars to double prison space in California--it's worth it?

McNAMARA: But you see what Lance has said is that he also favors youth intervention programs. But he--I take it--doesn't favor raising taxes. No one wants to raise taxes, so you can't have the prisons and the youth programs and so on. Under three strikes, the percentage of the California general fund that's going to go for prisons is going to rise from about 8 to 18 percent in a few years. That money has to be taken from some place else, from other programs. And so what we could do is balance this.

ROBINSON: If that money is used, as Lance believes it is, to cut the crime rate, what better way for the government--

McNAMARA: There's no evidence that that will cut the crime rate. The California economy--

ROBINSON: There's no evidence?

McNAMARA: Unemployment went down. The economy came back. A lot of other things are happening in American life, and the fact is that crime has been going down everywhere in other states that haven't been going to the massive incarceration--

IZUMI: They've been going down faster here in California.

McNAMARA: May I finish? May I finish? It had been going down in other states that haven't done the massive incarceration that we've done in California, so the question is: What do you want to spend your money on?

ROBINSON: Hang on. And your answer to that is?

IZUMI: My answer is that if you look at--yes, crime has gone down nationally, but it's going down faster in California than it is nationally. And part of the reason has to be that we're doing more in terms of incarcerating those real recidivist criminals who have been causing the bulk of the crimes here.

ROBINSON: Okay, so you say, if California has to spend massively more money on prisons to put these people in jail, that's money well spent, almost no matter what it pushes out of the budget?

IZUMI: I certainly think that if the Californian people decide that they want to spend this money on prisons, they're going to get bang for their buck.

ROBINSON: The crime rate will go down?

IZUMI: The crime rate will go down.

ROBINSON: They'll get what they want?

IZUMI: They'll get what they want.

ROBINSON: Which cannot be said of all government programs by the way.

McNAMARA: I think it will go up, because three strikes--

ROBINSON: Hold on. Stop the presses. Joe's making a prediction--three strikes legislation will actually cause crime to go up in this state.

McNAMARA: That's right. What you're doing, I think, is essentially unjust, un-American. It's going to make the police into the enemy in minority communities. It's going to create an increasing sense of unfairness in the minority communities. They already have no faith in the justice system now, and the people who are treated more severely when they do get out, and most of them will get out, are going to be vicious, violent, and unable to earn a living.

ROBINSON: What do you say to that argument--the prison is in effect a school for criminals? You go in bad; you come out worse.

IZUMI: Well, certainly, I do agree that the rehabilitative effect of prison isn't really going to do much for criminals.

ROBINSON: So, basically, you put them away to punish them and to keep them from committing acts against others.

MR. ROGERS HAS NEVER BEEN IN THE ´HOOD

ROBINSON: Experts criticize the law. The public praises it. What is going on? [Fade in.] On the one hand, you have public opinion. In poll after poll after poll, it is very clear that the American public in California and in every other state in the Union believes that criminals are not treated harshly enough, that the criminal justice system is a mess. Public opinion. On the other hand, you have expert opinion. I would view Lance as an exception. Expert opinion, by and large, is skeptical of imprisonment, tends to favor crime prevention, and tends to be very much more skeptical of locking people up. Now, my question is, Why this divide?

IZUMI: If you were being unkind, you would be saying that a lot of these experts don't have to live in some of these bad neighborhoods where some of this crime is going on. And so I think that it's certainly easier to say that you shouldn't put somebody away for a long, long time if you don't usually see that person every day in your life, whereas if you live in neighborhoods where you are, you know, the victim of crime, then you're going to want to have the police and the courts and the correctional system do something about these people who are causing havoc in your neighborhoods.

McNAMARA: It's simply not true. In the high-crime neighborhoods, the nonwhite people that live there feel that the criminal justice system is racist and discriminatory. They don't want to see people locked up for twenty-five years because they've got this much heroin in their pocket, and that's what three strikes does. So I think there's got to be balance here. The public is greatly influenced by a case like the Polly Klaas case, which was tragic.

ROBINSON: Explain the Polly Klaas case if you will.

McNAMARA: A little twelve-year-old girl, on October 1st of 1993--it's the case that led to the passage of three strikes legislation. She was kidnapped from her house at ten-thirty at night in Petaluma, a very low-crime city, by a man by the name of Richard Allen Davis, who was a repeat felon and whom a lot of people including myself thought should never have been out on the street. But under our system of justice, we even have to prove people like that guilty beyond a reasonable doubt, and I don't think we want to give up those rights.

ROBINSON: So, you would say that, even without three strikes legislation, the crime rate was dropping in the first place, tougher laws have already been enacted--

McNAMARA: There's no doubt about it. There's no doubt about it.

ROBINSON: So we don't need it, we don't need three strikes?

McNAMARA: I'd like to see it, but let's focus it on violence, on violence.

IZUMI: I think that three strikes by the statistics that we've seen within the last three years are proof enough that three strikes is working right now.

ROBINSON: Lance Izumi, Joe McNamara, thank you very much.