The 1990s were dominated by get-tough-on-crime measures, dramatically increasing the nation’s prison population and the length of prison sentences. Those measures culminated with the enactment of "three strikes" legislation around the nation. Beginning with Washington State in 1993, by the end of the decade, the federal government and over half of all states had enacted some form of a "three strikes" law. Roughly contemporaneous with these measures, crime rates have declined nationwide. Advocates of severe incarceration policies have claimed that "three strikes" laws are responsible for that decline.
Nowhere in the nation are the stakes higher than in California. Called "the biggest penal experiment of its kind in modern American history," due to its distinctive provisions, California’s "three strikes" law accounts for the vast majority of "three strikes" cases nationwide. Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California at 22 (2001). Its sentence enhancements include not just the widely advertised twenty-five-year-to-life terms for third-strike felons, but also a doubling of the nominal sentence for many second-strike offenders. Further, its provisions include residential burglary as a possible qualifying strike. Finally, the third strike, triggering the twenty-five-year-to-life term of imprisonment, may be any felony. As a result, California accounts for over 90 percent of all "three strikes" sentences nationwide.
"Three strikes" advocates in California point to dramatic declines in crime rates since its passage and claim victory. For example, former Attorney General Dan Lungren’s office reported that "[s]ince the passage of ‘Three Strikes,’ . . . the violent crime rate in California has dropped 26.9 percent with a 30.8 percent drop in the six major crime categories." Office of the Attorney Gen., Cal. Dep’t of Justice, "Three Strikes and You’re Out—Its Impact on the California Criminal Justice System After Four Years 3 (1998)." Secretary of State Bill Jones, who sponsored the "three strikes" legislation as an assemblyman, has suggested that three strikes is responsible for most, if not all, of that drop in crime. Justice James Ardaiz, who assisted in drafting the original bill, is even more explicit: "Crime in California has declined dramatically since 1993. The only things that are different are more police, tougher laws, and Three Strikes. . . . [W]here there are a number of explanations for a given result, the simplest explanation is usually correct. The Three Strikes Law is that explanation." James A. Ardaiz, California’s Three Strikes Law: History, Expectations, Consequences, 32 McGeorge L. Rev. 1, 35-36. Jones points to additional support for the beneficial role of "three strikes": while crime rates declined across the nation, the decline in California significantly outstripped that in the rest of the nation. For example, over a six-month period in 1995, crime declined only 1 percent nationwide while it dropped 7 percent in California. Jones, Why the Three Strikes Law Is Working in California, 11 Stan. L. & Pol’y Rev. 23, 24 (1999).
While commentators disagree about whether the law is theoretically justified, much of the debate focuses on empirical data. If "three strikes" accounts for the dramatic decline in crime, theoretical objections, including moral concerns about its fairness, are not likely to move legislators or the public. And as indicated above, "three strikes" supporters argue that empirical data support their position.
However, despite the claims of "three strikes" supporters, the data on which they rely do not withstand close scrutiny. More recent empirical research supports many of the claims of "three strikes" critics that the law simply cannot deliver on its promises and insofar as it may have some marginal deterrent effect, it comes at too high a cost.
Comparing California’s decline in crime with the national average, as Secretary of State Jones does when he asserts that "three strikes" accounts for California exceeding the decline in crime nationwide, cuts both ways. New York, not California, showed the sharpest decline in crime during the time in question. While some of New York’s policing policies have raised serious civil rights concerns, it was not one of the states that adopted a "three strikes" law during the 1990s. Hence, its decline in crime cannot be attributed to such legislation.
A number of recently published studies also raise doubts about the true effectiveness of "three strikes" laws in lowering California’s crime rate. For example, within California, counties that aggressively enforce the law "had no greater declines in crime than did counties that used it far more sparingly." See Crime States Capture Both Arguments, Contra Costa Times, Feb. 27, 2000, at A1. One study found that crime dropped by 21.3 percent in the six most lenient "three strikes" counties, compared to a 12.7 percent drop in the toughest counties.
A recently published book, Punishment and Democracy: Three Strikes and You’re Out in California, reports the results of the most comprehensive study of "three strikes" to date. The authors’ findings suggest that, prior to "three strikes," crime rates were declining already and, after "three strikes" they continued to decline at about the same rate, suggesting that whatever effect "three strikes" had, it was small at best. The book also notes that, partly because "three strikes" casts such a broad net, the offenders arrested under its provisions were no more likely to be high-rate offenders than non-"three strikes" arrestees. Nor were they more likely to commit violent offenses.
Although its proponents originally explained that "three strikes" would work because it would incapacitate high-rate offenders, the decline in the crime rate came too early to be explained on that basis—"three strikes" is a sentence enhancement provision and the enhancements do not kick in immediately, whereas the decline in the crime rate occurred immediately. As a result, "three strikes" proponents were forced to shift their explanation—the law deterred potential offenders.
The authors of Punishment and Democracy attempted to measure the law’s deterrent effect. In certain instances, depending on which method the authors used, they did find a marginal deterrent effect. But the effect was extremely small and cannot explain the significant overall decline in the crime rate. Punishment and Democracy also addressed the claim of the law’s proponents that a sharp decline in the crime rate followed passage of the law. Contrary to this claim, the authors found that the decline in the crime rate preceded passage of the law. Further, were "three strikes" the cause of a significant part of the decline, the rate of decline should have increased after its passage. Instead, the rate of decline remained constant, suggesting that the causes of the decline that were operating prior to the passage of the law continued to be the primary reason for the drop in crime rates.
Empirical studies suggest that California would have experienced virtually all of its decline in crime without "three strikes." At the same time, "three strikes" will have a significant cumulative effect on the size of the prison population, an expense that will grow over time. One effect will be to increase the number of older prisoners, a group that represents a low social risk because most offenders become less criminally active as they age. Not only are older prisoners not likely to commit crimes if set free, but they cost the state much more to keep incarcerated than younger, healthier offenders.
None of this comes as a surprise to many commentators who doubted the wisdom of "three strikes," certainly as it was enacted in California. But none of us who opposed "three strikes" can take much comfort in knowing that our concerns were borne out. The important policy question is how can we reform the law to avoid its excesses?