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The right three strikes.

In October 1, 1993, Richard Allen Davis broke into the suburban Petaluma, California home where 12-year-old Polly Klaas was having a slumber party with two of her friends. While Polly's mother slept in the next room, Davis tied up the girls at knife point, and kidnapped Polly. After an agonizing two-month search that drew international attention, police found the girl's body in a ditch only 35 miles from her home. She had been strangled to death.

There was no explanation, no apparent motive. But what made the crime most frightening, what made this nightmare-come-to-life resonate so powerfully throughout the country, was that it seemed there was no longer anywhere to go to escape the violence. Predatory crime had moved to the suburbs.

When his daughter's body was found, Marc Klaas thanked the country for its concern and said he took comfort in the fact that Polly had become "America's child." Davis, then, became the man who killed America's child, and he had a profile worthy of the distinction. The 39-year-old had been arrested 17 times, including three times for kidnapping and sexual abuse. His history of violence stretched back to his adolescence, when he would set cats on fire for fun. "Because of the obvious threat to the community," his probation officer wrote in 1977 after an attempted kidnapping conviction, "it is believed there is no alternative but imprisonment." Less than five years later, Davis was paroled. But it took him only a year to be arrested again, this time for burglary and contributing to the delinquency of a minor. This was the pattern of his adult life. Of the 18 years prior to the Polly Klaas murder, Davis had spent 14 behind bars. On his release, it took him an average of less than five months to be rearrested. There could be no better symbol of the spread of violence in America and of the failure of the criminal justice system to stop it.

In response to the country's fear and desperation, politicians began touting "three strikes and you're out" as the solution to the problem of violence. The proposal had been floating around California for about a year, slowly gaining support, primarily among conservatives. But when proponents of the bill correctly claimed that "three strikes and you're out" would have prevented Polly Klaas' murder, the idea took wing across the country. In Washington state elections last November, for example, 76 percent of voters approved the state's version of "three strikes and you're out." On March 3, the California State Senate approved the bill 29 to 7 in the face of overwhelming public support. State Senator Newton Russel said at the time, "I don't think we have any choice."

It was a feeling many state legislators began to share. In the 11 months since Polly Klaas was abducted from her home, eight states added repeat offender laws and over 20 more are now considering such bills in their legislatures. The new federal crime bill includes "three strikes" as a central way, in the words of Vice President Gore, to put "a huge dent" in violent crime, despite projections that it will affect only 500 federal cases per year. In his State of the Union address, President Clinton also hyped "three strikes," saying it offered the country a way to be "tough and smart" about crime.

But unexpected problems are already cropping up in the states that have "three strikes" laws. Take the case of Steven Drake Gordon, who holds the dubious distinction of being the first person in Sacramento to be prosecuted under "three strikes and you're out." Addicted to drugs and homeless for the past nine years, Gordon had a record typical of small-time crooks: a few charges of drug possession, disturbing the peace, resisting arrest, and two convictions for theft. In 1986, Gordon took $200 out of the cash register of a fast food joint in New York. Five years later, Gordon stole a woman's purse in Sacramento. In neither crime did Gordon act violently in any way.

But on March 8, the morning after Governor Pete Wilson signed "three strikes and you're out" into California law, Gordon stole a wallet that contained $100 from a bicyclist. He had struck out. Under the new law, Gordon, as a three-time felon, faced 25 years to life in prison: roughly three times the sentence a convicted murderer would serve.

Suddenly "three strikes and you're out" didn't look as fail-safe as Californians had thought. Gordon's victim, Karl Alexander, a 34-year-old hotel worker, stated publicly that Gordon's crime didn't merit the harsh sentence. Seven of the jurors who convicted him, who were unaware the crime was Gordon's third strike until they read it in the newspaper, sent letters to the judge saying Gordon deserved to be punished, but not as if he were a murderer.

Gordon got lucky. Sympathetic to the appeals of the victim and the jurors, Judge Peter Smith found a loophole by reducing the classification of Gordon's cash register heist down to a misdemeanor. In a rare act of judicial discretion, Smith sentenced Gordon to four to 10 years in prison.

Many others have not had Gordon's luck. In Seattle, Larry Lee Fisher was recently sentenced to life in prison for his third strike, the theft of $100 from a sandwich shop. Fisher's previous two felonies were thefts of $100 from a pizza parlor, and $390 from his grandfather. Under normal circumstances, Fisher would be sentenced to about two years in prison. Thanks to "three strikes," he will die behind bars. And Fisher and Gordon are typical of what many strike-out victims will look like.

Yet another problem with "three strikes" is how the laws are overcrowding already overcrowded American prisons. The average American prison system already operates at 15.4 percent over capacity. Forty-two state prison systems are under court order to relieve prison overcrowding. The federal system is one of the worst of all, operating at 38 percent over capacity, with all but one of its prisons under court order to reduce their number of inmates. "Three strikes" should further stretch prison rolls. By 2028, California expects to spend $21 billion building additional prisons. But even with the new prisons, California will not be able to adequately house the nearly 300,000 prisoners "three strikes" is expected to affect - which is more than all of Western Europe imprisons today.

Many voters have begun to feel as if they have been hoodwinked, but perhaps none more than Marc Klaas, who has turned the Polly Klaas Foundation against the law it helped establish. In an interview, Klaas said "three strikes" advocates, eager to attach the Klaas name to their cause, understated the bill's reach. "The bill was misrepresented to us. Supporters of |three strikes' came to us right after we got my daughter back and said, |We can put these people away for life before this kind of thing happens.' It sounded great to us." But as Klaas realized the breadth of California's "three strikes" law, he began to see something he didn't like. "I don't think anyone wants to put these small-time crooks away for life. We intended for the law to nail the Richard Allen Davises, that type of character," Klaas said.

The difference between Davis' crimes and those of Gordon and Fisher are clear. One is an unrepentantly violent man who targets individuals. The others are penny ante crooks out for an easy score. Giving non-violent small-timers the same sentence as someone like Davis is absurd.

The key to crafting truly smart and tough "three strikes and you're out" bills is to remember Polly Klaas, the young girl whose murder got the country thinking about "three strikes" to begin with. So ask yourself: What kind of law would have kept Richard Allen Davis out of her neighborhood? The answer is a law that targets only truly violent criminals who, pose the greatest threat to society. Property criminals such as thieves are best left to the discretion of judges. Marking the difference between crimes against property and violence against people separates the good "three strikes" laws from the bad. Virginia, Connecticut, and Florida all ensure that only violent felons will face the full force of the law. But their wisdom is not pandemic. California, Washington, and Wisconsin are among those states that include some property and drug offenses. The federal crime bill requires that the third strike be either violent or drug-related, but the first two counts can be simple property crimes.

As usual, the details that would make "three strikes" an intelligent response to America's problem of violence have been lost in the partisan noise of Washington and state capitals, with liberals and conservatives sticking to their ideological scripts without really thinking about how to make this work. Former Attorney General Edwin Meese, in The Washington Times, wrote that "three strikes and you're out" would "materially increase public safety and improve our citizens' confidence in the criminal justice system." In the other comer, Rep. Charles Rangel said: "It's a knee-jerk political response to a very, very serious problem. We ought to see what we can do to keep these people out of jail."

The simplicity of "three strikes and you're out," which liberals attack as shortsighted, betrays the fact that, in some cases, it makes a great deal of sense. Those criminals who prove themselves incorrigible by committing three violent felonies would be sentenced to life in prison without hope of parole. Criminologists and psychiatrists agree that there are sociopaths with no care for the harm they inflict or fear of punishment they might receive. For these people, the Richard Allen Davises of the world, banishment is the only rational solution. Prison cells, though, are a limited commodity. With prison building budgets already shooting through the roof, legislators crafting their "three strikes" laws need to make hard choices about who warrants extended and expensive prison stays, and who does not.

The consequences of indiscriminate sentencing go far beyond the economic. Given the fact of overcrowding, prison officials must make room for every new prisoner by releasing another. The decision to lock one person up means someone else must be released. The logical choice for early release would be the criminal who has no history of violence. Most parole boards try to identify the prisoners who would pose the least threat to society, but sometimes they have no choice but to release violent criminals to make room for the non-violent.

Donald Clark and Kenneth Stinnett were part of one such exchange in Florida. Clark was a typical, dime-a-dozen crook. His 15 convictions included an assortment of thefts and forgeries, but no violence of any kind. After being convicted of stealing a rib roast from a grocery store, Clark was sentenced to 12 years in state prison under Florida's repeat offender law. Stinnett, on the other hand, broke into a woman's apartment one afternoon and raped her while holding a screwdriver to her neck. He was sentenced to 15 years in prison. But on the day Clark began his sentence, Stinnett was released after having served only five and a half years. Accompanying Stinnett that day were three other rapists, two killers, and a kidnapper, each granted early parole as a result of the squeeze put on prisons.

In this way, "three strikes and you're out" has the potential to become a self-fulfilling prophecy. By keeping non-violent prisoners behind bars for lengthy sentences, more first- and second-time violent offenders will be pushed out on the street, and given the opportunity to strike out.

An immediate way to prevent "three strikes" from replacing violent criminals with non-violent ones behind bars would be to eliminate both federal and state mandatory minimum sentences for non-violent drug crimes such as possession or setting up a small drug deal between two people. The Monthly has long argued that drugs should be legalized, but if criminalization remains the law of the land, then common sense dictates that precious prison space should be devoted not to the occasional user or the smalltime dealer (such as the inner-city kid who sells a few drugs on the street comer) but only to big-time dealers. Even sillier than having "three strikes" apply to small-time dealers is having "three-strikes" apply to non-violent addicts who commit larcenies and other crimes to feed their habit. In New York, for example, mandatory sentencing (similar to the worst-case scenario under "three strikes") means such non-violent addicts serve anywhere from two to nine years in prison at a cost to state taxpayers of up to $58,000 per year and comprise one-eighth of the state's prison population. Imprisoning addicted criminals for long sentences, however, shows no effect in preventing recidivism among them or reducing the overall rate of crimes they commit. Overall, treatment shows a higher success rate at a much lower cost. And more importantly, it reserves the prison cells for truly violent criminals - and for the big-time drug dealers.

Some states have shrewdly taken a more direct route to ensure violent offenders don't get early releases. Connecticut, in fact, gives prosecutors the discretion to seek a life sentence if they determine that a two-time violent offender poses a continued threat to society. "The police and prosecutors know who the bad guys are," said State Senator George Jepsen. "We thought it better to give them the opportunity to get violent criminals off the street before they get a chance to strike a third time." Georgia Governor Zell Miller, too, has shown he is not bound by the baseball metaphor, proposing a "two strikes, you're gone" law aimed at truly violent criminals (murderers, armed robbers, aggravated assailants, rapists, etc.) that will be on the Georgia ballot in November. Says Miller, "If you want three strikes in Georgia, you'd better join a baseball team."

Another way some "three strikes" laws do not make sense is in keeping many of those convicted under the statutes in prison late into their lives. There is considerable evidence that once someone passes age 65, the likelihood of his breaking the law plummets and the costs of jailing him skyrockets. The average 65-year-old, for example, is as likely to commit a violent crime as a nine-year-old boy, and as he gets older, this probability decreases to nil. Figuring in the increasing costs of health care, keeping an elderly convict in prison past 65 could cost up to $100,000 per year. Several states' and the federal government's "three strikes" laws provide for geriatric release when it becomes clear that an ex-con poses no further threat to society. In fact, one of the few positive aspects of the California law is that it imposes 25-years-to-life sentences, instead of mandatory life without parole. It is important to remember that the primary reason behind "three strikes" is the protection of society from violence. With a few exceptions made for the perpetrators of the most heinous crimes - had they not been executed, we still should have kept Ted Bundy and John Wayne Gacy behind bars the rest of their lives - mandatory life sentences should be rejected. But once more typical criminals no longer represent a threat of violence, it's an enormous waste of money to keep them locked up, whether they were convicted under "three strikes" or not.

Tightening the proverbial noose around violent criminals' necks requires more safeguards than most "three strikes" laws allow. Judge Peter Smith, who presided over Gordon's trial, displayed the most effective check against unfair sentencing: judicial discretion. Too often in practice, the prosecutor assumes the powers normally held by the judge, leading to mistakes like Fisher. Because the law mandates the sentence, the criminal's punishment entirely depends on whether the prosecutor decides to try the defendant under "three strikes" or not. But all judges should be given the power to do what Smith did. Where statutes remain imperfect, judges should be given wide discretion to overturn sentences imposed by "three strikes" when they are not appropriate.

Such a case occurred in Sonoma County, California. Jeffrey Dean Missamore, already in jail for one year for petty theft (a misdemeanor), was caught in prison with two marijuana joints, which is a felony. Because Missamore had already been convicted in 1986 of another felony the drug possession constituted his second felony strike and mandated imposing twice the normal sentence for the crime. Missamore would have faced a minimum of eight years in prison had not Judge Lawrence Antolini, a self-described conservative, ruled that the sentence violated the Eighth Amendment and sentenced Missamore to probation.

Both Connecticut and Indiana wisely give the final power in sentencing to those who are best qualified to hold it: the judges. If a judge rules that a life sentence is unfairly harsh or unnecessary, he may revert to the sentencing guidelines. If "three strikes" is written with enough specificity, this should happen only rarely, because only the truly violent and unrepentant criminals will be prosecuted under the law.

Unless states and the feds note the shortcomings of the California and Washington laws, they too will begin filling prisons with criminals like Fisher and Gordon. Legislators must get the laws right from the first step. Unlike criminals, they do not have a strike to spare.
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Title Annotation:three strikes and out law
Author:Franklin, Daniel
Publication:Washington Monthly
Date:Sep 1, 1994
Previous Article:Guerrillas in the mist.
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