'Three-strikes' laws proving more show than go.

Politicians pitching "three-strikes-and-you're-out" laws have bedazzled much of the voting public with the laws, apparent potential to reduce crime. But a national survey of the effects of these measures -- and interviews with attorneys, corrections officials, and criminal justice advocates -- indicates that the laws may have produced more balk than bite.

Only nine people have been sentenced under the federal law, which was included as part of the 1994 Omnibus Crime Bill. Another A federal cases are pending, according to a survey released by the Campaign for an Effective Crime Policy, a Washington, D.C.-based coalition of criminal justice officials.

Despite the national attention focused on the federal law, the reality is that less than -- percent of violent felonies are resolved in the federal courts, so the new law's long-term impact is expected to be minimal, according to the survey.

But n states have passed their own three-strikes laws, beginning with Washington in 1993. Sentencing and parole eligibility vary considerably from state to state, as do the numbers and types of crimes that qualify as a strike.

With the exception of California, the laws have been used infrequently, according to the survey. In several states, including Colorado, New Mexico, North Carolina, and Tennessee, the laws have never been used. Wisconsin has applied its three-strikes law only once. Indiana has sentenced 10 offenders under its law, while Georgia has sentenced only 5.

"Three strikes is a bumper-sticker approach to fighting crime," said Walter Dickey, who conducted the survey. Dickey is a University of Wisconsin law professor and a former corrections commissioner in that state.

According to Dickey, few habitual criminals have been sentenced under the laws, primarily because many prosecutors and judges prefer to use existing repeat-offender statutes, which usually give them more flexibility than the three-strikes laws. Also, some laws were so narrowly written that they are difficult to apply.

In dramatic contrast, Dickey said, is California's law, which was written with a broad brush. It doubles the sentence for second offenses, or strikes, and is broadly inclusive. The law counts any of the state's 500 felonies as a strike and imposes a mandatory prison sentence of 25 years to life for a third conviction.

The result. More than 15,000 offenders have been sentenced under the law for second or third strikes.

Despite these number -- which proponents tout as proof of the California law's crime-fighting effectiveness -- Dickey found that the crime-reducing impact of the law is still unproven.

He noted that more than twice as many criminals have been sentenced under the three-strikes law for marijuana possession than for murder, rape, or kidnapping. Eighty-five percent of second- and third-strike convictions have been for nonviolent offenses, such as drug possession and petty theft.

Since the California law's inception, its broad parameters have engendered controversy. Last June, the state supreme court ruled that judges may ignore this law when they believe the mandatory jail time imposed does not fit the crime. (People v. Superior Court (Romero), 917 P.2d 628 (1996).) Legislation to circumvent that decision has stalled in the California Senate. (Fox Butterfield, 'Three Strikes' Rarely Invoked in Courtrooms, N.Y., Times, Sept. 10, 1996, at Al.)

"Before policymakers jump on the three-strikes bandwagon, they should consider whether these policies are being adopted because they represent good crime control or good politics," Dickey said.

Chase Riveland, secretary of Washington state's Department of Corrections, is no fan of that state's three-strikes law, which is much narrower in scope than California's. While he stressed that he agrees with the laws ultimate goal -- "targeting repeat violent offenders and giving them hard time for hard crime" -- he believes it adds little to existing repeat-offender laws.

To qualify for three strikes under Washington law, each offense must be for a violent felony like murder, rape, or armed robbery, Riveland said. He pointed out that adopted by referendum, "making it a clear choice of the people.

"Our three-strikes law passed by about 70 percent, so it is very popular," Riveland said. But ifs a placebo that somehow makes citizens think they are safer when they are not, and it keeps them from dealing with the issues of crime and violence in responsible ways."

Disparate impact 

An analysis of California correctional statistics by the Center on Juvenile and Criminal Justice cited in the survey found a marked racial disparity in sentencing, under the three-strikes law, with African Americans being sent to prison more than 13 times as often as whites. In fact, 43 percent of third-strike inmates were African Americans, although they represent only 7 percent of the states total prison population and account for only 20 percent of all felony arrests.

The survey noted that the disparity likely stems from the racially disproportionate impact of the war on drugs, which has concentrated enforcement resources in innercity communities with larger minority populations." While the exchange of powder cocaine in white neighborhoods is likely to occur behind closed doors, Dickey said, street dealing of rock cocaine in African American communities is more likely to come under police scrutiny. The likelihood of prior convictions also makes African Americans more susceptible to third-strike convictions, he said.

Riveland said Dickey's analysis holds true for Washington, where a disproportionate number of the 71 people sentenced under the three-strikes law are African American. He ticked off the breakdown: 39 whites, 28 African Americans, 2 Native Americans, 1 Hispanic, and I Asian American. Only 2 were women. African Americans account for about 13 percent of the states population, Riverland said.

Opportunity costs 

California's law is increasing court backlogs for both civil and criminal cases since many three-strikes defendants choose to go to trial. In Los Angeles, 25 percent of these cases go to trial, compared with just 4 percent of other felonies. Three-strikes cases are plea-bargained 45 percent of the time. Riveland said similar numbers apply to three-strikes cases in Washington.

Because three-strikes defendants are often unable to post bail, the California law has crowded local jails, detention centers, and state prisons. Dickey's survey found that the state will have to build 15 new prisons in the next five years at a cost of $4.5 billion just to keep up with the influx of people convicted under the new law.

Another impact of the laws involves health care costs. The survey found that incarcerating older prisoners costs three times more than the $20,000-a-year average. California Attorney General Dan Lungren has even expressed a willingness to consider "geriatric release" at age 65 to reduce medical costs to the prison system, the survey noted.

Safety concerns

Police, judges, bailiffs, and defense attorneys have all reported being at higher risk of assault because of the laws.

For example, the survey reported that Fresno, California, police reported as percent increase in assaults on officers. And Seattle police attributed an increase in armed confrontations to Washington's three-strikes law. While the risk may be difficult to quantify, logic would seem to suggest that the laws can encourage offenders to avoid capture at any cost, Dickey said.

Once offenders are part of the three-strikes system, the ball game can become even more dangerous. Just ask Alameda County, California, Deputy Public Defender Joseph McGrew. Last September, McGrew and his three-strikes client, Randy Wayne Abenth, were seated in the courtroom waiting for the judge to take the stand.

Abenth, a two-strikes burglar, asked the attorney to file a last-minute motion to delay. When McGrew refused, Abenth exploded in anger, hurling racial epithets, head-butting McGrew, and lunging toward him with a seven-inch plastic jail-made knife, or "shank," fashioned from a broken mop handle. "And he was cuffed and shackled at the waist at the time," McGrew said. He pulled it out of his pants pocket."

When the judge in the case entered the courtroom to quell the commotion, he and a nearby bailiff were verbally threatened. Three deputies eventually subdued Abenth with pepper spray. (Alex Roth, Attorneys Facing Increased Hostility from Three-Strikers, L.A. Daily J., Nov. 8, 1996, at 1.)

McGrew said several factors contributed to the assault, including racism. Abenth is white and has swastika tattoos. McGrew is black.

Beyond any underlying racial tension, McGrew believes the altercation was a "desperate attempt on the part of my client to postpone his fate a little longer. He knew the system well enough to know that if he assaulted his lawyer, he would receive another four- or five-month delay," McGrew said. "As defense counsel for three-strikers, we represent the final frontier, which can be a scary proposition - for them and for us."

Copies of the national three-strikes survey are available for $5. Requests may be made by writing to the Campaign for an Effective Crime Policy, 918 F St., N.W, Ste. 505, Washington, DC 20004, or by calling [phone].