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Three Cheers for Three Strikes

Friday, November 1, 1996

Crime in California is dropping -- fast. So far, this decade looks to be the most promising for reducing crime since the state started keeping complete statistics in 1952. Although California suffered -- along with the rest of the nation -- while the crime rate nearly quadrupled between 1960 and 1980, California is now recording some of the largest crime reductions of any state.

          Preliminary crime statistics for 1995 show that the overall crime rate in California fell 8.5 percent; violent crimes dropped 5.5 percent and property crimes fell 10.1 percent. If the trend holds, California will record a third straight year of falling crime in 1996, including a marked acceleration in the last two years. The hard evidence points to historic decreases in all categories of crime in the state. California is about to set state records for:

  • The largest one-year drop in state history in the rate and number of crimes;
  • The largest two-year decline in the number of crimes;
  • The first two-year drop in all major categories of crime (homicide, rape, robbery, aggravated assault, burglary, and motor vehicle theft);
  • The largest one-year drop in the number of violent crimes;
  • The largest one-year drop in the rate and number of property crimes;
  • The largest one-year drop in the number of burglaries;
  • The largest one-year drop in the number of motor-vehicle thefts.

Crime in California fell by 9 percent last year now that criminals are kept in jail


          What accounts for these astonishing numbers? I would suggest it is in large part due to California's passage of a "three strikes and you're out" law, which has done more to stop revolving-door justice than any other measure in state or federal law. Enacted in 1994 by both popular initiative and legislative action, the law requires a defendant convicted of a felony to serve an indeterminate life sentence when it is proved that he has committed two or more previous felonies defined as "violent" or "serious." Offenders given a life sentence become eligible for parole only after serving 25 years or three times the term that the current conviction would ordinarily warrant, whichever is greater. A "two strikes" provision, part of the same law, requires that when a defendant is convicted of a felony, and has been previously convicted of one "serious or violent" felony, the term of imprisonment is twice the usual sentence provided for the second felony conviction.

          In June 1996, the California Supreme Court held in People v. Romero that, notwithstanding the ostensible mandatory language of the "three strikes" law, judges retain the discretion to strike or dismiss prior felony convictions; the court's judgement relied on statutory interpretation and the separation of powers. Thus, the state of the law is that while judges have discretion to strike a prior conviction, our district attorneys will still prove prior felony convictions and state courts will still sentence offenders under "three strikes." I have sponsored legislation to narrowly define and restrict the discretion that judges will have in these cases.

Accountability for Criminal Choices

          As written and applied, "three strikes" is a model of strict and even-handed justice. It demands accountability, reflects common sense, presents a clear and certain penalty, and uncompromisingly invests in public safety. I like to reflect on former Chief Justice Warren Burger's comments made before an American Bar Association meeting in 1981: "A far greater factor is the deterrent effect of swift and certain consequences: swift arrest, prompt trial, certain penalty and -- at some point -- finality of judgment." Can anybody believe otherwise? The quotation reflects the chief justice's fundamental understanding that the rule of law affords the complementary blessings of both freedom and responsibility and provides the governing framework in which individual citizens make their individual decisions. The rule of law protects our free will from arbitrary constraints; at the same time, it provides consistency and impartiality to the life of the state and its citizens. What seems obvious in this formula is that as individuals exercise their individual, personal liberties in living their lives and in interacting with others, they also become personally accountable for the choices they make -- choices from which clear consequences arise.

          Yet, many opponents of "three strikes" disagree with the notion of strict personal accountability. Of course, while most of the self-proclaimed experts in criminal justice state their objections on other grounds -- they call "three strikes" draconian, ineffective, too broad, too tough, and too expensive - the real theme that resounds in their criticism is that "three strikes" "re-victimizes" persons who already have been "victimized" by the forces of an unfriendly society and an adversarial government. In short, their view is that the targets of "three strikes" are not accountable for their conduct because "complex" forces extrinsic to the individual are the principal causes of criminal activity: poor education, unemployment, a detrimental social situation, or even the law enforcement system. Further, these critics have employed this philosophy to demand that sentencing for convicted criminals be made in light of "mitigating circumstances" and that incarceration should be for "rehabilitative purposes" to redress what society "did" to the inmate.

          The voters of California have rejected this nonsense. And the record shows "three strikes" is doing precisely what the voters demanded when they overwhelmingly passed the initiative, by 72 percent to 28. The career criminal with multiple serious or violent felony convictions is being forced to make what should be an easy decision: Either stop committing felonies and live the remainder of your life in freedom, or spend 25 years to life in prison the next time you are caught and convicted of a felony. The career criminal will be held personally accountable for his decisions. Imagine that! When the voters rejected revolving-door justice, they rejected the arguments of apologists that we can divorce negative personal conduct from individual accountability.

Proportional Punishment

          The second criticism against "three strikes" by criminal apologists is that the law does not furnish proportionate punishment. These critics focus on the cases in which a habitual felon is charged with a "minor" property or drug offense that qualifies as a third strike. They allege it is wholly improper to impose an indeterminate life sentence for a "minor" crime and that instead the offender should be given special consideration or more lenient treatment. The philosophical approach advocated here is that criminal conduct should be viewed in isolation of past history and surrounding circumstances. If a habitual felon currently commits a crime that is classified as a felony under California law, and he has convictions for two previous "serious" felonies, is it any surprise that Californians want a tougher punishment for the current felony?

          Let's examine what constitutes a "serious or violent felony" for a "three strikes" prior conviction: murder or voluntary manslaughter; mayhem; rape; sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; oral copulation by force, violence, duress, et cetera; lewd or lascivious acts on children; felonies with personal use of firearm; attempted murder; assault with intent to commit rape or robbery; assault with deadly weapon; arson; kidnapping; selling drugs to minors; and many others. If these are not "serious" enough, I would like to know which ones should be dropped as insufficiently serious. When the third strike is but a "minor" felony, such as grand theft or possession of certain drugs for sale, why should society ignore the habitual criminal activity of this offender when sentencing him?

          Common sense dictates the answer to this question. First, society does not view crime in a vacuum. As Princeton professor John DiIulio recently wrote, "Most Americans rightly think in terms of total criminality -- the full social and moral weight of an offender's acts against life, liberty, and property. They reject the criminological equivalent of grade inflation -- judging plea-bargained-gorged prisoners by their last conviction rather than their overall criminal grade-point average, adult and juvenile." Second, an offender who has committed a series of violent or serious crimes is likely to commit additional crimes of the same nature; wisdom demands that an offender's criminal record be the starting point for determining punishment. Finally, the rule of law demands a response to a lifestyle of destruction and violence. There is nothing disproportionate about giving a harsh sentence to a felon who has not learned from having committed two serious felonies before.

Deterrence Effect

          There has been a marked split of opinion, at least in academia, as to how best to prevent crime. On the one hand, some argue that habitual criminal activity can be "cured" by placing offenders in correctional programs that renounce retributive goals and instead stress the redemptive value of education, vocational instruction, and even group therapy. Another school of thought centers on the positive behavioral effects of a system of clear and certain consequences for destructive and criminal behavior. Unfortunately, many in the "redemptive programs" group reject outright the legitimacy of deterrence. The causes of criminal behavior are far too complex, they say, to permit any generalizations about whether individuals will consider legal prohibitions or sanctions when they act and interact in society -- especially when they are hungry, ill-housed, under-educated, or emotionally neglected.

          The value of deterrence, however, is grossly underestimated by these "experts," who have devised no way to prove or disprove its effects. I believe certainty of incarceration, for a long and inevitable period, nonetheless has a dramatic effect on the behavior of individuals. Consider the statement of a veteran homicide detective in the Sacramento police department as to the law's impact: "You hear [the criminals] talking about it all the time. These guys are really squirming. They know what's going on. . . . I've flipped 100 percent," Gregory Gaines told a Sacramento Bee reporter. Gaines had just been released from Folsom State Prison with two serious or violent felony convictions -- two "strikes" -- and told the reporter that many other inmates have decided to heed the warnings of the "three strikes" law. "It's a brand-new me, mainly because of the law. It's going to keep me working, keep my attitude adjusted."

          Perhaps the most interesting statistics track the migratory patterns of felons on parole in California. In the last year before "three strikes" became law in 1994, 226 more paroled felons chose to move to California than moved out. After "three strikes" took effect, the flow reversed: 1,335 more paroled felons chose to leave California in 1995 than to enter. We've gone from being a net importer of paroled felons to a net exporter! Coincidence? Hardly.

          Another school of thought seeks to explain the reduction in crime in California solely as a function of social or demographic trends. They argue that a troubled economy breeds more crime. (This ignores that in 1992, 1993, and 1994, overall crime in California dropped even as the state's economy endured one of the worst economic recessions in its history.) They argue that the crime rate falls naturally when the proportion of males in the crime-prone age groups declines. (While this may be part of the explanation, no study we have found supports the notion that "demographic changes" alone drive the crime rate up or down.) Without admitting it, this side in the debate, like some of those in the "redemptive programs" community, believes that tough incarcerative penalties for criminals and tough law-enforcement strategies do not work. In short, they deny the obvious value of deterring crime as a means of preventing it.

          Consider the historical experience of no deterrence. California has about 138,000 inmates in its prisons today. When we began our push for a tougher response to crime in the early 1980s -- establishing punishment and social incapacitation as the priorities of our penal system -- the total inmate population was only 25,000, even though the crime rate reached an all-time high in 1980-81. Our prisons had revolving doors through which career criminals cycled, undeterred by the prospect of a short prison stint. Many California inmates viewed a stay in prison as a chance to receive neglected medical and dental care, and to beef up their muscles in the weight yard in preparation for the next "recess" on the outside. "Three strikes" and other tougher laws have begun to change that.

          Under the leadership of governors Deukmejian and Wilson and the state's vocal (and often overlooked) victims of crime, California embarked on an active prison building program in conjunction with tougher crime laws and more conservative judges. So where are we now? Today we have 138,000 felons incarcerated in state prisons. Unless you believe that releasing those additional 113,000 felons from our prisons tomorrow would have no effect on the number of crimes committed and that our laws, policies, and promise of punishments have no effect on the number of criminals on our streets and the amount of crime suffered by our state, it is clear that we are beginning to win the fight.


"Three strikes" demands accountability, reflects common sense, presents a clear penalty, and uncompromisingly invests in public safety


          But what if we had not changed our incarceration policies so dramatically? What level of crime might California be suffering from today if the runaway trend of upward crime rates of the 1960s and 1970s had continued unabated? In 1994, California's overall crime rate was 3,147 crimes per 100,000 people. The rate would have reached 4,403 per 100,000 had the trend of the 1970s continued. In just the last two years -- the "three strikes" years -- we can estimate the level of crime victimization that would have occurred had our pre-"three strikes" crime rate remained unchanged. In the last two years, California would have had 907 additional murders, 2,015 additional rapes, 37,256 additional robberies, 11,602 additional aggravated assaults, 92,727 additional burglaries, and 56,991 additional motor vehicle thefts. A recent RAND Corp. study estimated that rigorous enforcement of "three strikes" will reduce serious felonies committed by adults in California between 22 and 34 percent below what would have occurred had the previous law remained in effect. The authors emphasized that about a third of the felonies eliminated will be violent crimes such as murder, rape, and assaults causing great bodily injury. The other two-thirds will be less violent, but still serious, felonies, including less-injurious assaults, most robberies, and burglaries.

Cost to Society

          The critics of "three strikes" also miss another obvious truth: A criminal in prison cannot commit crimes against the general public. In fact, the cost of crimes committed against our citizens is higher than the cost of incarcerating them. The critics are warning that "three strikes" -- and all our tougher laws -- will cost too much to implement. Yet, according to a 1992 U.S. Department of Justice report on justice expenditures and employment, only three cents of every tax dollar goes to public safety such as police, courts, prisons, jails, and related activities. Perhaps we should question why our priorities have been so backwards. I submit that, strictly analyzed in a cost-benefit perspective, the tough approach to crime is financially sound.

          A 1996 recent study by the National Institute for Justice assessed the costs to society of murders, rapes, robberies, aggravated assaults, and burglaries. The costs included both tangible and intangible costs to the victims, their families, and society, from lost income and medical expenses to pain and suffering and risk of death. The federal study's calculations did not include direct costs to the criminal-justice system, such as police, jail, prosecution, courts, prisons, and the like. The costs to society and victims for each crime range from $2,940,000 for each murder to $1,400 for each burglary. Using these base figures, had California not experienced the post-"three strikes" drop in crime in 1994 and 1995, it would have cost us:

  • $2.66 billion for the additional murders;
  • $174.3 million for the additional rapes;
  • $707.9 million for the additional robberies;
  • $108.5 million for the additional aggravated assaults;
  • $129.9 million for the additional burglaries.

          Clearly, the costs to society of a return to the lenient approach, even in purely fiscal terms (which is obviously not the primary consideration when paired with the human costs of crime) are astronomical. Other approaches to preventing crime have value that I, for one, do not dispute. The move toward community-oriented policing must continue and thrive. California leads the nation in community-oriented policing, a philosophy that enables police officers to work more intensively with citizens in their neighborhoods, rather than scurrying from one 911 call to the next. It, too, costs money, but the investment is worth the up-front costs.


Once a net importer of paroled felons, California is now a net exporter. Last year, 1,335 more parolees left than arrived


          In fact, some critics of "three strikes" argue that the example of New York City, which has enjoyed a steep drop in crime without the benefit of state laws similar to California's, undercuts the case for "three strikes" policies. New York City, however, invested in a comprehensive community-oriented policing program along with a "zero tolerance" policy that requires officers to strictly enforce every possible violation. Like "three strikes," New York City's program costs money -- and it works. (New York City has added 7,000 officers since 1990. The entire Los Angeles Police Department totals 8,737; New York City 37,800.) Ironically, it is deterrence again at work in New York City -- the criminals in the city know the police are there and change their behavior accordingly.

          Unfortunately, we are told that a proportionally large group of young males, currently in their pre-teen years, will soon move into their "crime-prone" years. We should refuse to accept the notion that a high rate of crime will be committed by these youths. A juvenile crime wave is not inevitable, just as our high crime rates of the past were not inevitable. As a society we have to confront the conditions that exacerbate levels of juvenile crime and violence. Our challenge is to implement juvenile crime laws and policies which will deter as many as possible from a life of crime while still incarcerating those teenagers who commit serious violence on our citizens. There is an important place for prevention and intervention programs for our young.

          Although "three strikes" will incarcerate more habitual criminals, the costs are justified. The price of allowing these offenders to return to a lifestyle of victimizing citizens is too high. "Three strikes" incapacitates active criminals, who can no longer commit crimes against the public. "Three strikes" removes from our streets the harmful role models these offenders present to our youth and to gang "wannabes." "Three strikes" re-introduces into our collective consciousness a moral imperative that criminal activity should not be tolerated in any way. Most importantly, "three strikes" reduces crime by providing a solid and unquestionable deterrent to criminal behavior. California's sharp decline in crime in the last two years may be attributable to numerous, complex factors, but it is indisputable that "three strikes" has played a major role in reshaping public safety in California, both for law-abiding citizens and for would-be criminals.

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