Two Strikes and You're Violent?

Two Strikes and You're Violent?

Two Strikes and You're Violent?

Slate's blog on legal issues.
March 22 2008 10:50 AM

Two Strikes and You're Violent?

Columbia business professor Ray Fisman has a fascinating column in Slate on the economics of California's "three strikes" law -- a subject near to my heart because I wrote my undergraduate thesis on it.  Researchers at RAND have done some work on the costs, benefits and efficacy of the law, but Fisman writes that a new study by the National Bureau of Economic Research contains some disturbing findings:

. . . [The study] finds that three-strikes laws like California's, while discouraging criminals from doing things like smoking pot or shoplifting, may push those who do continue in a life of crime to commit more violent offenses. The study's author, Radha Iyengar, argues that this is because under such laws, felons with a pair of strikes against them have little to lose (and often much to gain) by committing serious crimes rather than minor offenses.

Why would stiffer penalties increase violent crime? To understand this seeming paradox, you first need to understand the nature of California's three-strikes law. Not just any offense gets you a first strike. It must be a so-called "record-aggravating" offense, which includes violent crimes like assault and rape as well as serious nonviolent crimes such as burglary or drug sales to minors. But after strike one, strikes two and three can come from any felony, including minor offenses like possession of marijuana or even stealing golf clubs or videotapes . A third strike carries with it a mandatory sentence of at least 25 years in prison.

Now, put yourself in the shoes of a two-strike criminal. The prospect of 25 years behind bars for a third offense is likely to give even a hardened criminal pause before he or she crosses the street against the lights. So we'd expect two-strike felons to commit fewer crimes. But suppose you've already decided to break the law—maybe you need to make a quick buck. Are you going to lift a few golf clubs from the local pro shop? Or are you going to hold up a bank? The potential haul from a bank robbery is obviously much greater, and the penalty is the same: Bank robbery will get you decades in the slammer, but if it's your third offense, so will shoplifting.

Even if you don't quite have the chutzpah to pull off a bank job, you still might end up committing a more violent crime if you're in a 0-2 hole. Let's say you opt for the golf club caper, but as you're making your getaway, you're cornered by a store security guard. Do you surrender quietly or pull out a gun? If strike three is looming, it's all the same to you whether you end up on trial for shoplifting or armed assault, so why not try to shoot your way out of an arrest?

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The Supreme Court upheld California's three strikes law a few years ago.  And in the aggregate, the law has helped reduce crime by putting away a lot of criminals (albeit at staggering cost for the state of California).  But I don't think that's the end of the discussion.  It's one thing to ask whether a law is Constitutional; it's quite another to ask whether the law is effective, or a prudent public policy.  I'm curious about what my Convictions  colleagues think.  Do sentencing laws like "three strikes" work?  Or are there better, cheaper, more effective alternatives?  And if the law's unintended consequence has been to make 2nd strike criminals more violent, what can we do about it?