Are “three strikes” laws the solution?

By Edward Stern J.D.
December 1st, 2012

Ensuring the safety of its citizens is one of society’s most important functions.

However, everyone does not agree on how to achieve this outcome. One school of thought is based on the concept of deterrence. There are two types: general and specific. Both types are based on the idea that if punishment is severe enough, a person will not want to be caught and punished for committing a crime and therefore will be deterred from doing the crime. Another argument in favor of lengthy punishment is that the punishment (incarceration) will isolate the perpetrator from law-abiding citizens, thereby protecting society.

A different position toward punishment is based on a concept of treatment. The underlying idea is that through reform or rehabilitation, offenders can be reintegrated into society.

These theories are too complicated to be discussed at length in this format. A true discussion of these theories could include studies and outcomes of different types of punishment, a philosophical discussion about how a society wishes to define itself and its treatment of members of the society and a debate on the meaning of freedom including the differences between the rights of individuals and the desire to feel collectively safe.

The ultimate discussion in any of these debates comes down to a question of whether or not there is ever a time when a society should decide that “enough is enough” and a perpetrator cannot be returned to society. Related issues include whether “man” is basically good or evil and whether or not there is a possibility of redemption. These discussions revolve around issues of capital punishment or extended incarceration including but not limited to life imprisonment without the possibility of parole.

The concept of a “three strikes law” is important to consider.

The name “three strikes” law comes from baseball and the fact that a batter is “out” if he gets “three strikes.” In law, “three strikes” by a convicted criminal has become a justification for lengthy incarceration. Some states have passed laws with a similar concept called “habitual offender” laws. Further, there are many ways to think about extended punishment. Generally, there are two sets of circumstances that tend to provoke punishment. The first is the commission of a “heinous” act which offends society. Some examples are murder, rape, arson, burglary, robbery and kidnapping. In each of these cases, there can be circumstances that could modify the punishment such as self-defense, insanity, accident, youth, etc.

The second provoking factor is persistence in illegal activity, the type of conduct that the “three strikes” law is trying to curtail.

Those who believe they will be victims find these laws attractive. But a number of questions are hidden within the debate. Which crimes are of sufficient concern to be included in a “three strikes” law? Should the crimes be limited to felonies? Does only the third crime or one crime need to be a felony? Should the crimes be limited to violent offenders? Should the crimes include juvenile offenses? Will these laws only catch the people for whom they were intended? Will these laws fill up the prisons and spend vastly beyond present budgets of the costs of incarceration?

Massachusetts recently enacted such a law and has tried to balance these issues by limiting the law to violent offenders while reducing some of the penalties on drug offenders. Vermont has had a different “three strikes” law on its books since 1995. Twenty-seven of the 50 states have tried some form of “three strikes” law.

Some concern exists that legislatures with the mandate of severe penalties have taken too much discretion away from judges with the use of “three strikes” laws. The result could sometimes be injustice in individual cases. If “three strikes” laws stay in effect for many years, what will prisons need to do to maintain a growing elderly population?

Data indicates that crime has statistically fallen over the past 20 years. It is probably appropriate to study “three strikes” laws to see if they are a factor in this change or perhaps are putting an undue burden on particular groups in the general population and a great burden on tax revenues without the anticipated results.

Edward M. Stern, J.D., has a private law practice in Newtonville, Mass., Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

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