PLAYING HARDBALL: The Best Way to Fight and Deter Crime

Thursday, June 25, 1998

Fed up with crime, the public has demanded "get tough" laws, locking up more criminals, handing out longer sentences and calling for more executions. Is it working? Susan Estrich, the Robert Kingsley Professor of Law and Political Science at University of Southern California, Charles L. Hobson, Atttorney, Criminal Justice Legal Foundation and Pamela Karlan, Professor of Law at Stanford University, give a lively presentation of different approaches to stopping crime.

Recorded on Thursday, June 25, 1998

ROBINSON Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today, crime and punishment.

There was a time when penitentiaries were just that. Places to be penitent. Places where criminals atoned for their crimes. Many believe that in penitentiaries these days criminals spend less time atoning for their crimes than toning up their bodies. Weights, exercise equipment, radio, television, the idea is to rehabilitate the prisoners. In recent years there has been a growing movement to restore the old emphasis on punishment. Not this kind of weight. But this kind. The kind you use for breaking rocks.

With us today three guests. Charles Hobson is an attorney with the Criminal Justice Legal Foundation. Susan Estrich is a law professor at the University of Southern California. And Pamela Karlan is a law professor at Stanford.

We began by talking about one of the most famous or most notorious pieces of get tough on crime legislation.


Here in California we have the so-called three strikes law enacted in 1994. The way it works is that if a criminal has two felonies on his record when he is found guilty of a third felony the judge must, the judge has no choice, the judge must sentence the criminal to at least 25 years in prison. You like that law?



HOBSON Two reasons. Number one. If you commit lots of felonies, you committed felonies beforehand, you're likely to commit them again. It's a good way to get hard core felons off the street. And number two, it is just bad. And it is actually its worse to commit more and more felonies. I mean it shows you haven't learned your lesson and if you haven't learned your lesson morally there is more reason to disapprove of you.

ROBINSON You know, it make senses to me. I have to say, if you got two serious charges against you and you commit a third one, why not lock 'em up?

ESTRICH Well, but that's not how it works. Well, of course lock him up. But that's not how three strikes laws work. I mean ours happen to be particularly badly written...

ROBINSON Ours being California's.

ESTRICH California. But the two previous strikes don't have to be violent.

HOBSON Serious or violent.

ESTRICH Well, but it's serious and serious.

ROBINSON Give me an example of a felony.

ESTRICH People think the guy who steals the piece of pizza, the third strike and then his last one was a check bounce.

ROBINSON Who is the pizza thief?

ESTRICH The pizza thief is the guy in Los Angeles who literally went out with some friends and saw some people at the next table eating a pizza that looked mighty good so he, on a dare, went up and stole a piece of the pepperoni pizza.

ROBINSON He stole a slice of pepperoni pizza?


ROBINSON And that's a felony?

ESTRICH Yeah, yeah.

HOBSON In California petty larceny with a petty theft with a prior conviction of theft is a felony.

ESTRICH And he had a check bouncing ten years ago, two check bouncings, so the...

ROBINSON Bouncing a check is a felony?


KARLAN If you intentionally bounce.

ESTRICH If you intentionally bounce it.

ROBINSON Did it just get warmer in here?

ESTRICH It just got really hot in here and you came to understand something. In 99% of the prosecutors offices in America, when that guy came in with the piece of pizza and the check bouncing you would say this is garbage.

ROBINSON There's a felony missing here, though?

ESTRICH It was the first one 14 years ago. The guy is now engaged to be married.

HOBSON He had two serious...

ESTRICH ...the check bouncing, he's 36 years old, about to be married, and stolen a piece of pizza. Would you like to spend $20,000 a year for the next 30 years to lock this man up? And you put aside what you are doing to the human being's life and what he deserves. That is a really stupid way for a system of ______ resources to allocate money.

ROBINSON You're with her on this one, Pam?

KARLAN Yeah, I mean one thing that we know is people over the age 45 or 50, even if they've served 20 years in jail, are not likely to continue committing violent crimes or even really serious crimes because it's a young person's game. So you now have all these seventy year olds in New York who were locked up in the 1960's under the Rockefeller drug law, for no reason.

ESTRICH They're the only ones who get health care.

KARLAN That's right. They get health care.

ESTRICH Three squares and health care.

ROBINSON Chuck, respond.

HOBSON A couple things. First of all, crime has fallen even more than people expected with the passage of the three strikes law.

ROBINSON So it works.

HOBSON The law works. It's imperfect but it works.

ESTRICH And my prediction worked, too. When you know it was also El Niño that did it. I mean how do we know that three strikes works.

KARLAN One of the things we know...

ROBINSON Let him keep trying ...

KARLAN Because of the age distribution...

HOBSON It's incapacitation. If people are in jail, they don't commit crimes.

ESTRICH As Pam points out, it's the young man's game. By the time most criminals committed three strikes, and been convicted of them, they're already too old to get the maximum sentence for locking them up.

ROBINSON Too many old prisoners? I can think of a simple way to fix that one.


Fix #1: you put him away for 25 years or until they reach the age of 55, whichever comes first. Rewrite the statutes. That please you?

KARLAN Well, it's unfair to treat people really differently based on the age they are.

ROBINSON What do you mean? I can't get a driver's license until I'm 16. You can't vote until you're 18. We do all kinds of things on the basis of age.

KARLAN We don't discriminate, for example, between 25 year olds and 30 year olds in the way we treat.

ROBINSON This is a discrimination on the basis of age with a sound reason in fact.

KARLAN But statistics can't be used in the criminal justice system to avoid treating people individually.

ROBINSON We have a dangerous criminal society. Chuck and I come up with a three strikes law. You say, "No, no, no." We say, "Okay, fine we'll let them out when they reach a certain age." " No, no, you can't do that."

ESTRICH Well, I don't want to let out some people. There are some people I want to keep in even when they're old. Okay, you show me a three time kidnapper. I don't care what the statistics might be on people who are 40 years old generally. A three time kidnapper who has kidnaped children and committed serious injury. I want that guy locked up.

ROBINSON You trust a judge to do it.

ESTRICH I trust him more than a 24 year old prosecutor who's going to make that decision and not have it be reviewed. Look, if they decide to charge the pizza thief, then he is automatically sent to prison for life. If they decide not to charge the pizza thief, no one can do anything about it.


HOBSON A couple things. Well, first of all, prosecutors still have discretion. Actually, right now in California judges have discretion, too. It's a very limited discretion but it's a discretion, none the less, which would have worked on the case of the pizza thief. Prosecutors have limited resources. Prosecutors are not going to maximum charge every case. When you do in Los Angeles, they wind up with huge, huge backlogs and eventually the systems is going to force them to pick and choose between the cases.

ROBINSON Do you grant that the law needs to rewritten? The law as it now stands?

HOBSON The law could be reformed. It's being enforced as we speak. Prosecutors are charging in this case. They are getting convictions and people going to jail and sometimes they are not charging, and when they exercise their...

ESTRICH How do justify that difference? Why should it be that if I'm charged on the eighth floor of a certain building in Los Angeles I'll be charged with one crime and if I am charged on the sixth floor, I'll be charged with a different crime. Eighth floor, life in prison. Sixth floor, two years.

HOBSON It's inevitable. If you are charged in San Francisco, a judge might give you one sentence. If you're charged in Los Angeles or Orange County...

ESTRICH With judges giving sentencing then you can have some common law of sentencing . You have at least things done on the record. You have it subject to some review. What we have done now is taken a huge amount of discretion, handed it to prosecutors to use invisibly.

ROBINSON What do you mean by invisibly?

ESTRICH Invisibly means when he kept saying the laws being enforced. The law isn't being enforced against everybody. Decisions are being made. If they weren't the system would collapse. So who decides? Something we talked about on other shows. Who decides and on what basis and right now the decisions are invisible and the black community in this state firmly believes that the three strikes law is racist. Now you and I might not agree. But they do.

ROBINSON Chuck, is it racist? It certainly does send disproportionate numbers of blacks to prison.

HOBSON Once again, except ... also in disproportionate numbers they have multiple prior serious or violent felonies. And you always have discretion in a prosecutorial system.

ROBINSON I want to clean this up a little bit. Chuck, rewrite the statute. Would you make any changes to the statute as it stands now?

HOBSON The only one I can consider making is having the third felony a violent or serious felony.

ROBINSON That would please you?

ESTRICH I think anything that restricted the statutes application would please me, but I think the thing that would please me most is to recognize, we can't sentence by slogan, or you end up letting out dangerous people.

ROBINSON People in California have some experience... Susan says laws like three strikes send non violent offenders to prison while violent offenders walk. But as I recall, the original problem was that judges were letting offenders walk.


We had Judge Roseberg. We had judges who are violently, openly liberal. Their scepticism toward harsh penalties was open, on the record, everybody knew about it and the people of California said, "I've had enough of that." This notion of the judges as high priests to whom all decisions, all deference should be given, and the people of California said enough. Now that strikes me as pretty sound. Why do you want to restore all of this discretion to judges? Pam?

KARLAN Well, we swing back and forth in American history, back and forth between so- called determinant sentencing and indeterminate sentencing.

ROBINSON Determinant is what?

KARLAN Determinant is where the legislator says if you commit this crime, you will get 10 years.


KARLAN And that's the only sentence and the judge has to impose it ....

ROBINSON And you don't like that in general? You don't like that approach?

KARLAN No, it's not that I don't like that approach. It's that there are strengths and weaknesses to both approaches. Because indeterminate sentencing might say you know if you commit this crime, you can have anything from 0 years to 50 years. Well, under a determinant sentencing scheme the problem that you often have is the sentence doesn't exactly fit the crime. So if we had a sentence that said any theft, a 10 year sentence, and guy steals a piece of pizza. Well, that's too much for stealing a piece of pizza. Let's just say it's a first time offense. No one would say that's fair but that's the only sentence. Either you do that or you don't get charged at all.

ROBINSON The drug laws were.

KARLAN The way the mandatory drug laws. You know, if you had one joint in Texas, one marijuana joint, you went to jail for 10 years.

ROBINSON That's a pretty serious crime in Texas.

KARLAN Well, right, but, so that the problem there is sometimes the law does not fit the crime. The problem with indeterminate sentencing on the other hand where you don't know exactly what the sentence will be is that sometimes that leads to bias among judges so people in one part of the state get 10 years and the other...

ROBINSON Okay, Pam. You're saying on the one hand, on the other hand...

KARLAN No, I'm saying that there isn't a perfect system and that you should expect that we vacillate back and forth.

ROBINSON So what would you do with the three strikes? Would you strike it from the books?

KARLAN I would eliminate a three strike law altogether. Yeah.

ROBINSON That's not on the one hand, on the other hand. That's just ...

KARLAN New York state, for example, doesn't have a three strikes and you're out law. What it has is a second violent felony offenders statute. If you commit a second violent felony, 10 years, I think it is, is tacked on to what would otherwise be your sentencing.

ROBINSON Would you object to that?

HOBSON As a minimum it's a start. The California one, double the sentence. I think doubling sentence... Sometimes to 10 years will be more. California sentencing laws are very, very, very complicated. By the way, not all mandatory sentencing schemes are the same. In California, for instance, you choose a range of a lower, a middle, an upper term. In the Federal system it's more of a matrix and judges have some limited discretion within the matrix.

ROBINSON Why are you shaking your head?

ESTRICH Every judge I know hates the Federal system.

HOBSON Because they don't like losing their power.

ESTRICH Well, and because they feel it requires them to impose sentences that may be too weak in some cases, or too strong in some cases. And that's really the bottom line. I mean if you think of prison just for a minute, as a scarce resource, it's $25,000 right there, and just ask how should we as a society allocate that scarce resource. I don't think you would come up with doing it based on slogans that get passed in election years. I talked to legislators in this state about three strikes when it was up and I said you know this is unenforceable. You know it's going to transfer discretion to prosecutors. You know there are all these problems with the statute. They said we know all those things we're voting for it anyway because nobody wants that ad that says he's the one who voted to let the criminals out. I think the country and the public understands better that you have to make room for prevention in this system and you have to decide who's worse and who isn't.

ROBINSON Susan, for the record .... Academics like Susan and Pam may not like mandatory sentencing laws, but the public certainly does.


Why is it that professional or expert opinion wants discretion to judges, it tends to be much more skeptical of heavy sentences and the public wants something quite different. How come?

KARLAN The public wants safety. I don't think they care particularly. If we told people that midnight basketball was going to guarantee their safety on the streets, they wouldn't want prisons. The problem is that we failed to come up with solutions for crime and people assumed that prisons will solve it.

ROBINSON So the public impatience is justified?

KARLAN Public impatience is justified but I am not sure that locking up more people than any other country in the world would make us safe.

HOBSON There are two parts to sentencing. One is keeping us safe. There is also just moral condemnation. These are bad people, they do bad things. People want to see bad people punished.

ROBINSON Why do you get these two layers, this oil and water of opinion?

ESTRICH The Politics of crime for the last 10 or 15 years has been so thoroughly dominated by a desire on all sides not to appear tough. That most...

ROBINSON Not to appear soft.

ESTRICH Not to appear soft but instead to appear tough that most of what most people know about crime never even enters into the policy debate or the public discussion. I don't know a serious professional, conservative liberal, moderate anywhere on the spectrum who doesn't believe in prevention. Doesn't believe that it is absolutely essential to dealing with crime and yet prevention never gets discussed.

ROBINSON When you say prevention, what you mean as a liberal of long standing is another huge and expensive social program. Surely you can find lots of professionals who oppose that.

ESTRICH Oh, well, I think it is very interesting. I mean some of the ... You may not like some of the programs or I may not like them but whether it's providing help to inner city churches to work with kids, or providing help to inner city schools, there is enormous recognition that we have got to deal with prevention. There is nothing in the political debate about prevention because the political debate is about getting elected. It's about I'm for three strikes. No, he's for three strikes. All right I'm tougher than him, I'm for two strikes. Well she's for two strikes, I'll be for one strike.

ROBINSON Democracy doesn't work. So Susan and Pam will make you...

HOBSON They're trying to be judges. Crime prevention should succeed or fail on its own merits.

KARLAN But that's like saying, you know, health care. There's a limit to do we want to spend all of society's money on health care? Well, we are not willing to do that. Are we willing to spend all of society's money on locking people up? No, we are not willing to do that but there is only a certain amount of money that people are willing to pay in taxes and they are under the impression that every dollar spent locking somebody up is more effective.

ROBINSON What society is and isn't willing to do. Well, there is one punishment the public clearly is willing to inflict.


Chuck, Pam, Susan, the public wants a death penalty. This is again something that comes clearly through poll, after poll, after poll. Is the public right?


ROBINSON Why? As a deterrent? What are your grounds?

HOBSON It's a moral sanction. For sufficiently bad killings, sufficiently heinous killings, death is the appropriate sanction.

ROBINSON Hold on. I think, I want to be very clear on what you're saying. Appropriate sanction in terms of justice, sort of fitting in with the harmony of the music of the spheres, that horrible crimes require horrible...


ROBINSON Okay, so you're not going to hang this one on deterrence?

HOBSON No, I mean you can, in the sense.

ROBINSON You can? There's evidence that the death penalty is a deterrent.

HOBSON It's very difficult for any crime to determine the deterrent effect. Statistics in criminal justice are notoriously murky. Maybe the murkiest of any field. Deterrents? I don't think you can prove it one way or the other.

ROBINSON Death is called for, appropriate, and just.



KARLAN I'm against the death penalty unless and until we have a system where all defendants get adequate council and juries are more representative.

ROBINSON Hold on, in those few words you've got... let me dig out ... you're against it, "unless, or until". So you are not against it on moral grounds. You think there are circumstances in which it is justified?

KARLAN I can conceive of a society in which the death penalty would be justified. I don't think this is that society.

ROBINSON Tell me what that society looks like.

KARLAN That society is a society in which all defendants get an equal opportunity to have competent lawyers so that you don't have something like Mississippi where a lawyer gets paid $1,500.

ROBINSON Okay, so the death penalty would be justified in Sweden?

KARLAN Interestingly enough the societies that I think are closest to being the kind of societies to have a death penalty don't feel they need one.

ROBINSON Yeah, yeah, yeah. But that's not quite my point. If you have an egalitarian society, everybody gets the same shot in court. You'd be in favor of a death penalty?

KARLAN I personally would not but I wouldn't be distressed that society...

ROBINSON I want to know your personal view.

KARLAN My personal view is that one of the things that separates society and me from the kinds of people who commit murders is that we don't go around murdering the people.

ROBINSON So you do object on moral grounds. It is wrong for the state to kill citizens even if they're murderers?

KARLAN I personally do but I don't think it would be unconstitutional in a fair society for the majority of my fellow citizens to disagree with that.

ROBINSON All right. We'll let that stand. Susan. You're for it or against?

ESTRICH In that fair society...

ROBINSON Which we're talking about is Sweden now?

ESTRICH I would just go for a minimally fair society. You know Pam says everybody has equal access to resources. I don't have a philosophical problem with the death penalty. I mean I am quite clear that if, God forbid, someone did something to someone I loved, that's how I would feel and I understand that feeling and I don't think it's simply uncivilized, vengeful feeling. I think there are certain crimes that are so heinous that people should pay with their lives. I think the real question we really have to ask and this rarely gets asked, is is our criminal justice system good enough? Are lawyers available enough? Are juries fair enough? Are results good enough to justify the sentence and the finality of death? And I don't know what we're going to do....

ROBINSON My first reaction as a laymen, to " is our system good enough", is to think of all the people on death row, who have been there year after year after year, making one appeal, after another, holding up the criminal justice. If that isn't fair, if we don't bend over backwards to make sure that no one is...

ESTRICH That's the irony, of course, that we do bend over backwards and we end up spending more money keeping people alive so that we can kill them. But the problem, the reason we do that is because most of those people submitting those repeated petitions never had a good lawyer in the first place, you see.

HOBSON No, no.

ESTRICH No, that's really true...

KARLAN As of 1989 the Supreme Court found that over half of the people sentenced to death between 1976 and 1989 ultimately had their sentences or their convictions reversed by a Federal court.

HOBSON The Supreme Court didn't find that out. That was an academic who found that out. And the problem with that finding was that the Supreme Court kept changing the law of the death penalty back and forth, back and forth. Nobody...

ROBINSON But the law is pretty clear now.

HOBSON It's clear now.

ROBINSON You're allowed to fry people?

HOBSON No, no, unfortunately you have to jump through many, many hoops and actually the Supreme Court's death penalty jurisprudence...

ESTRICH Do you concede that in this system it's almost inevitable that there will be a mistake in execution. That is, someone will be executed, who had they had access to Pam as their lawyer would not have been. Now isn't that a problem?

HOBSON It's something to try to avoid obviously.

ESTRICH How do we face as a society...

HOBSON You can't expect perfect justice...

ESTRICH I know, but when you use the tool of execution how much imperfection should we have. I mean, the funny part is people will say I am disgusted with the criminal justice system, I don't trust it, I don't have faith in it, we should execute more people.

KARLAN I don't know if the state was Kentucky or Georgia but in one of those states one third of the people on death row have lawyers who within five years after the trial were disbarred for some kind of misbehavior or ineffectiveness.

ROBINSON Better representation for criminals facing the death penalty? Okay, what else do Pam and Susan want?


Give me the three reforms that would make it fine with you.

KARLAN Well, it wouldn't be fine with me under any circumstances, but....

ROBINSON Okay, stop. Give me the three reforms that would make it fine with you.

ESTRICH I think if I were confident that the criminal justice system was providing adequate representation of every stage, adequate investigation and adequate review.

ROBINSON So you could actually give a special bundle of money to lawyers who were pursuing death penalty.

ESTRICH No, but then at a certain point you have to ask yourself if that's the best place you spend your special bundle of money. I mean, if you ask me would I rather spend a big pile of money making sure we can execute two or three more people each year, or a big pile of money making sure we can save 20 or 30 kids, from lives of crime. I'll go the other way on that one.

ROBINSON You say again, you say I have no moral or philosophical objection to the death penalty. However, as a matter of practice, every time I try to give you an opportunity to institute a reform or two, that would make it fine with you, you give me a reason why, as a matter of fact, no, we couldn't have a death penalty.

I think you really don't like it. You're really uncomfortable with the notion.

ESTRICH I actually am uncomfortable with the reality of the criminal justice system that I know is very imperfect and that I have very little faith in our ability to perfect so that I had this conversation with Justice Stevens who I clerked for who had voted for the death penalty when I was a law clerk. Actually, we had gotten this case and my co-clerk and I both at the time very hostile to the death penalty, had had to drive the papers out, then he wouldn't sign them, I'll never forget the scene. And he said to me later that in his years on the Supreme Court, since a mere 20, of seeing the petitions come in and recognizing the absolute unevenness in the quality of representation at the early stages. And how almost nothing you do after that can cure it because the trial was bad that he had come himself to ask the question whether our system as it currently operates is capable of administering good enough justice from the trial level on that you could trust it with someone's life.

KARLAN In the justice for whom I clerked came out in the same basic position which is Justice Blackman voted for the death penalty in 1972, voted for the death penalty in 1976 and right before he retired said he could no longer tinker with the machinery of death because none of the tinkering made for a fundamentally fair and accurate system.

ROBINSON Did you clerk with anybody who wants the death penalty?

HOBSON I wasn't so fortunate to clerk with the Supreme Court Justice. All the problems, first of all as a constitutional matter, I see it as an open and shut case. I mean the Constitution mentions capital punishment, I think, two or three times. You can't say that capital punishment is unconstitutional.

ROBINSON But nobody here is saying that. You're saying it.

KARLAN It's administered. It's not...

HOBSON This criticism, I mean, should apply equally well to all parts of the criminal justice system. Why pick on the death penalty?

ROBINSON Because it's ultimate.

ESTRICH Because it's ultimate. Because every day we pick up the paper. And I grant you 99% of the people in prison are guilty. But everyday we pick up the paper, there was one in Orange County just the other day of somebody who had been imprisoned for x number of years for a crime they've now been cleared for and when we are talking about a penalty of death I think that society should tolerate.

ROBINSON Why doesn't the public agree with you?

ESTRICH Well, I think the public does agree with me. If you asked the question of the public, do you want to see guilty murderers executed? Yes. The answer is yes. Do I want to see guilty murderers executed? Yes. If you asked the public, do you think the criminal justice system is a good and efficient system? They would probably say no.

KARLAN How many innocent people would you see executed in order to make sure the guilty person was executed? If you ask the question that way, most people would say none.

ROBINSON We've talked about mandatory sentencing, we've talked about the death penalty. Close your eyes, meditate for a moment. If you were emperor for a day, and could make one reform to the criminal justice system, what would it be? Pam?

KARLAN If I could make one reform I think I would have better lawyers going into the criminal justice system both on the prosecutor and on the defense side.

ROBINSON You'd pay them better?

KARLAN I'd pay them better.

ROBINSON You'd have the government's taxpayers pay them better?

KARLAN Yes, I'd have the taxpayers pay them better.


KARLAN I would take first offenses much more seriously than we do now. And I would focus much more attention on prevention and recognize that it is simply cost efficient to understand that you're better off preventing crime than punishing someone for life.


HOBSON I also would substantially increase penalties for first offenses and I think I would also substantially decrease Federal intervention in prisons and make prisons less expensive to run.

ESTRICH Take away those toilets.

ROBINSON Pam, Chuck, Susan, thank you very much.

One of the points the guests agreed on is that getting tough on crime in general means locking up more prisoners and locking up more prisoners means building more prisons and prisons are expensive. Is it worth all they cost? Or are prisons a ball and chain on the American taxpayer?

I'm Peter Robinson. Thanks for joining us.