The insidious underbelly of three strikes laws and zero tolerance
Today’s Courant has this powerful piece by Richard Rapaport about the zero tolerance and three-strike frenzy whipping through Connecticut.
Welcome to ZT Connecticut. “ZT,” if you don’t know, stands for zero tolerance. It is a philosophy and mindset invoked to justify actions ranging from the expulsion of students for bringing alcohol-based mouthwash to school, to campaigns to pass “three strikes” laws in response to last month’s heinous murders in Cheshire.
Culled from the engineering lexicon, the slogan “zero tolerance” was trotted out in 1973 as Watergate’s noose tightened and Nixon Justice Department officials needed a tough-sounding anti-crime slogan. In the ’80s, the Navy adopted ZT to add rhetorical muscle to a purge of seagoing potheads.
From there, ZT entered civilian drug enforcement and then locked its tentacles around the justice system in the guise of “zero tolerance for crime.”
This same ZT sub-species has been roused from slumber this summer in Connecticut to induce normally even-keeled citizens to jump on the “three strikes” bandwagon, and to create a platform for those who see no shame in advancing their own social agenda in the face of the tragedy in Cheshire.
So I did a simple search for three strikes laws on Google and found the following:
- This law review article entitled “A problem in emotive Due Process: California’s Three Strikes Law” authored by Prof. Samuel Pillsbury, which states its goal as: “I do not purport to present here a full legal argument that lawyers or courts might use to overturn California’s three Strikes law or other similar statutes. The essay does not attempt the extended historical and doctrinal analysis necessary for such a legal brief. Instead it presents a part—albeit an important part—of this argument, asserting that Three Strikes represents a radical and unwise departure from traditional sentencing procedures that provide important emotive safeguards against penal excess.
- This report from the Maryland State Commission on Criminal Sentencing Policy authored by Greg Jones, Michael Connelly, Ph.D., and Kate Wagner in 2001, which concludes
- This report by prison policy titled “Three Strikes Laws: Five Years Later” which concludes:
- This ABA publication.
- This research brief from the Rand Corporation on California’s three strikes law.
“According to experts “three strikes” laws have not had a significant impact on reducing crime. Many studies have shown that reduced crime rates cannot be significantly attributed to the “three strikes” laws (Beres & Griffith, 1998; Stolzenberg and D’Alessio, 1997; Turner, S., 2000). To understand the entire picture, you must take into account other changes that have been occurring including an improved economy, changing drug markers, demographic changes, and strategic policing (King & Mauer, 2001).
In terms of deterrence, the evidence suggests that “three strikes” policy has had modest to little effects. The main objective of this policy, to incarcerate violent offenders, has been neglected for the most part. Most offenders receiving sentences under three strikes have been drug, property, or other non-violent types of offenders. In California, the DOC reported that 57.9% of third strike cases involved non-violent offenses as were 69% of second strike cases (King & Mauer, 2001).
So the question remains is “three strikes” a sensible policy? The majority of the research presents a negative view of the policy, however, some researchers point out that it is difficult to determine because of the downward crime trend occurring nationally and other economic changes taking place since the early 1990s. One consistent projection is that “three strikes” laws will contribute substantially to the aging of the prison system. This poses a serious threat to the correctional system in future years, being that elderly inmates, those 50 and over, require more expenditures for health care and other special needs than a younger prisoner. Current estimates are that it will cost $1.5 million to incarcerate an elderly prisoner for the minimum 25 years, which is the sentence given if convicted on third strike (King & Mauer, 2001).”
The implementation, costs and consequences of three strikes legislation deserve careful ongoing evaluation of the law’s opportunity costs as well as its effects on crime, racial disparity, legal process, fairness in application, prosecution practices, judicial discretion and impact on jail and prison populations. Of concern is whether the law is reducing public safety rather than enhancing it because of the burdens placed on crowded jails and because increased prison costs divert funds from education and social programs that may be more effective in preventing crime in the long run.
Protecting communities from repeat violent offenders may be the most emotionally and politically charged challenge to the justice system today. It is properly among the highest priorities of government. Proposed solutions to the problem of violent crime must take into account the efficient use of public resources and take care to avoid creating harmful distortions in the justice system. No single law will be a panacea for violent crime. An overriding problem with three strikes is that catchy slogans divert attention from a serious discussion of how reducing crime and violence must involve a comprehensive range of social, educational, health and justice system interventions.
I sincerely hope that when the Judiciary Committee meets next month, co-chairs Rep. Mike Lawlor and Sen. Andrew McDonald (who, thankfully, seems to be acting rationally about this – see quote below) will take a look at these reports (or others) and consider them in deciding what route they want to pursue.
“I think the challenge will be to do it in a deliberate and methodical way so we have a better public policy at the end, rather than a hurried and rushed way to react to some of the more strident calls,” McDonald said.
“You’re going to have thousands of additional inmates who would need to be not only incarcerated but staffed,” McDonald said. “It’s $40,000 to $45,000 a year to keep a prisoner in a correction facility. . . . Part of the problem with quick and undisciplined proposals is that they have vast, unintended consequences that create other problems down the road.”
“With all due respect to my friends in the Fourth Estate, a lot of this information has been filtered through the media and I think there’s a lot of misconceptions about not only what happened but what existing law in Connecticut already says,” McDonald said.
It is also worth repeating that neither of the two accused would have been subject to a three-strikes law.
Knee-jerk reactions do not make good law. We should know this by now.
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about 4 years ago
Knee-jerk reactions don’t make for good law, but lessons learned do. And I do agree that buzzwords like “zero tolerance” often mask lunacies that only bureaucrats admire.
However, the Petit murders do show that Connecticut is far to lenient on home invaders, and it’s a good thing that will change. The elected representatives whining about costs need to think about the fact that when career criminals are locked up, a lot of crimes never happen that would have.
By the way, I was in the Navy (a very junior enlisted man when “zero tolerance” came out). The reason for zero tolance of drugs in the Navy was that autopsies showed that of a bunch of guys killed in an aviation mishap were on dope. The Navy decided that it had had enough–and rightfully so.
As for three-strikes, it’s possible that some injustices will pop up here and there, but three-time losers with a serious felony on their rap sheet should go bye bye.
about 4 years ago
Just for the record, “tolerance” is an engineering concept, but “zero tolerance” is not. Or at least it’s not a good concept. That’s because in engineering, the greater the tolerance, the better.
For example, the power supply in your computer might tolerate an input of 100-130 volts. That’s a good thing, because your house’s electrical system is probably providing somewhere between 115 and 125 volts.
However, if your computer has a narrower tolerance, say 118-122, there’s a pretty good chance it won’t work at all in your house. You’d have to spend money on power conditioning equipment. That’s the problem with tight tolerances: They impose compliance costs on other parts of the system.
I don’t think you can draw any conclusions from this about the kind of tolerance you’re talking about. The word just doesn’t have the same meaning in both contexts.
about 4 years ago
[quote comment="4314"]Just for the record, “tolerance” is an engineering concept, but “zero tolerance” is not. Or at least it’s not a good concept. That’s because in engineering, the greater the tolerance, the better.
For example, the power supply in your computer might tolerate an input of 100-130 volts. That’s a good thing, because your house’s electrical system is probably providing somewhere between 115 and 125 volts.
However, if your computer has a narrower tolerance, say 118-122, there’s a pretty good chance it won’t work at all in your house. You’d have to spend money on power conditioning equipment. That’s the problem with tight tolerances: They impose compliance costs on other parts of the system.
I don’t think you can draw any conclusions from this about the kind of tolerance you’re talking about. The word just doesn’t have the same meaning in both contexts.[/quote]
You lost me there….
about 4 years ago
Ah, it doesn’t matter. Sometimes I just like the look of my own writing… I was trying to respond to Rapaport’s assertion that “zero tolerance” was “culled from the engineering lexicon” by pointing out that “zero tolerance” isn’t something any engineer would want to deal with, and I got a little lost along the way.
about 4 years ago
[quote comment="4336"]Ah, it doesn’t matter. Sometimes I just like the look of my own writing… I was trying to respond to Rapaport’s assertion that “zero tolerance” was “culled from the engineering lexicon” by pointing out that “zero tolerance” isn’t something any engineer would want to deal with, and I got a little lost along the way.[/quote]
Oh okay, that makes sense.
about 4 years ago
Just to begin with, the piece in the Courant makes no distinction between two concepts: zero tolerance and three strikes and you’re out. But there is a distinction. A zero tolerance law would not permit a second crime without severe penalties. Laws themselves, since sanctions are attached to them, assume zero tolerance. The bank robber may expect to be punished if caught.
A three strikes and you’re out rule applied to burglary certainly is not irrational; it may be more expensive than, shall we say, non prosecution or prosecution without punishment. I don’t know what the poll figures would say about either possibility, but I assume neither would be wildly popular.
Poll research done on the question of “Three Strikes and You’re Out” legislation probably would yield soft results for the reasons you mention – but also because some quiddities are non-measurable. As a result of “Three Strikes and You’re Out” legislation, criminal A decides not to rob a home in January; how is such a datum to be collected?
All this brings us back to sweet reason. Is reasonable to think that the enforcement of sanctions makes reasonable people afraid to break the law? Those who answer this question affirmatively are not being unreasonable, are they?
about 4 years ago
[quote comment="4353"]Just to begin with, the piece in the Courant makes no distinction between two concepts: zero tolerance and three strikes and you’re out. But there is a distinction. A zero tolerance law would not permit a second crime without severe penalties. Laws themselves, since sanctions are attached to them, assume zero tolerance. The bank robber may expect to be punished if caught.
A three strikes and you’re out rule applied to burglary certainly is not irrational; it may be more expensive than, shall we say, non prosecution or prosecution without punishment. I don’t know what the poll figures would say about either possibility, but I assume neither would be wildly popular.
Poll research done on the question of “Three Strikes and You’re Out” legislation probably would yield soft results for the reasons you mention – but also because some quiddities are non-measurable. As a result of “Three Strikes and You’re Out” legislation, criminal A decides not to rob a home in January; how is such a datum to be collected?
All this brings us back to sweet reason. Is reasonable to think that the enforcement of sanctions makes reasonable people afraid to break the law? Those who answer this question affirmatively are not being unreasonable, are they?[/quote]
But that’s exactly what some studies show – that the existence of these laws do not result in a decrease in crime. So while there may be one or two people who decide not to rob or burgle – we don’t know why they decided not to do that. It may be just as likely that they would have decided otherwise even if the three strikes law was not in existence.
What the tangible data does show is that these crimes are committed at the same rate with three strikes laws as without three strikes laws.
There are plenty of sanctions on the books already. Has crime dropped to zero?
about 4 years ago
Gideon,
I’m glad we both agree that the polls are indecisive. They are simply indicative, and everyone is free to draw his own conclusion — preferably from other data.
about 4 years ago
[quote comment="4357"]Gideon,
I’m glad we both agree that the polls are indecisive. They are simply indicative, and everyone is free to draw his own conclusion — preferably from other data.[/quote]
I didn’t say they were indecisive. In fact, they show that three strikes laws have little or no impact on crime.
about 4 years ago
Pity. I thought we could agree on something. They are merely indicative, you know. There is no way of measuring intentions by polls. If criminal A has decided he doses not wish to rob house B because he is weary of inmprisonment, there is no poll carefully calibrated enough to measure his intention.
about 4 years ago
[quote comment="4361"]Pity. I thought we could agree on something. They are merely indicative, you know. There is no way of measuring intentions by polls. If criminal A has decided he doses not wish to rob house B because he is weary of inmprisonment, there is no poll carefully calibrated enough to measure his intention.[/quote]
Where do you find a poll?
These are studies that look at two sets of data: 1) Crime before three strikes laws and 2) Crimes after three strikes laws.
If the number of crimes in both sets of data are the same, what should that tell you?
about 4 years ago
It tells me that the variables involved are too variable to achieve an accurate reading in any poll on the subject. I hoped we could agree on this. Perhaps something said by Will Rogers would be appropriate: “Is our court procedure broken down, lame, or limping? Something sure is cuckoo. It looks like after a person’s guilt in this country is established, why, then the battle as to whether he should be punished is the real test of the court. It seems if he is lucky enough to get convicted, or confesses, why he has a great chance of going free.”
I think if you took a poll and asked people whether they agreed with that sentiment, you would find they agree most heartily. And that poll would be infinately more accurate than the ones you are citing.
about 4 years ago
I’m not citing any polls…..
I’m citing studies that look at data…oh forget it.
about 4 years ago
Great. Then we do agree on the polls.
about 4 years ago
I am using the word “polling” throughout to mean imformation gathering. I do not think the information gathered in the study necessarily points to the conclusion you’ve reached.
The study shows that after the introduction of “Three Strikes And You’re Out” laws crime statistics remain the same. From this data you conclude that such laws are ineffective in preventing the crimes they are designed to reduce. However, other variables enter into this that are not accounted for in the study. But to conclude that such laws are not effective in preventing crimes we should have to know other information discounted, for good reasons, in the study. What we want to know is this: How many criminals and potential criminals DID NOT COMMIT CRIMES during the period under study because the “Three Strikes and You’re Out” laws disuaded them. Those numbers are not included in the study because they cannot be measured though what I call polling, information ghathering. The study therefore is indicative because a) other variables not contemplated in the study may be have shaped the conclusion, and b) the study cannot take into account crimes that had not been committed.
about 4 years ago
Sigh.
Dom (and others) – perhaps you should take a step back and consider that not all crimes are equal and so not all strikes are equal.
Scenario 1:
Burglary – Someone breaking into a grandmother’s retirement cottage with the intent to make off with the TV and perhaps kill anyone who gets in their way.
This is who we’d like to think we’re deterring under a three strikes rule – the rational “bad actor” of so much television drama.
Scenario #2
Burglary – Someone opening a latched cubicle on the side of a street food-vendor’s vehicle because they’re filching a bottle of water in the recent heat wave.
This is who we actually end up penalizing. No joke. I saw this case brought recently (although not under a 3 strikes rule.)
So.
Are these “equal” strikes? What if #2 is a disabled homeless guy of marginal intelligence? Is that *kind* of guy going to be “deterred” in any significant way?
Which polls capture this kind of data? I’m not sure. But you should spend some time in jails and prisons if you want to see just who the system “captures.”
Scoplaw
about 4 years ago
Scoplaw,
I agree that ponishment should fit the crime. We do not cut off the hands of thieves who steal. Will you agree that the punishment should be progressively more severe the more the criminal engages in criminal activity? If so, we are on our way. Will you agree that a house full of lawyers ought to be able to write legislation with these contingencies in mind? The three strikes and you’re out legislation could be tailored to certain kinds of crimes (home burglaries, for instance), in which case the guy who steals a crust of bread from a vendor because he is hungry would not spend the rest of his life in jail, as he should not. But these things cannot be discussed at all so long as data collectors are shoving their in our faces studies that are not convincing. If we, as a society, have concluded that punishmnets, however severe, do not deter crime, the logical course of action would be to give up punishing people. But, for some reason, that is a conclusion that the reasonable folk on your side of the aisle do not reach. Why not?
about 4 years ago
[quote comment="4399"]Scoplaw,
I agree that ponishment should fit the crime. We do not cut off the hands of thieves who steal. Will you agree that the punishment should be progressively more severe the more the criminal engages in criminal activity? If so, we are on our way. Will you agree that a house full of lawyers ought to be able to write legislation with these contingencies in mind? The three strikes and you’re out legislation could be tailored to certain kinds of crimes (home burglaries, for instance), in which case the guy who steals a crust of bread from a vendor because he is hungry would not spend the rest of his life in jail, as he should not. But these things cannot be discussed at all so long as data collectors are shoving their in our faces studies that are not convincing. If we, as a society, have concluded that punishmnets, however severe, do not deter crime, the logical course of action would be to give up punishing people. But, for some reason, that is a conclusion that the reasonable folk on your side of the aisle do not reach. Why not?[/quote]
That’s not the conclusion, however. The conclusion is that these additional penalties do not deter crime. They deter crime at the same rate as existing penalties.
So the extra cost in implementing these additional penalties is not justified.
about 4 years ago
We need to quit messing with the law. As often as it changes, the people can’t keep up with it. It takes two lawyers and a judge to figure out if someone actually did something wrong. The problem with that is that the people are supposed to know what two lawyers and a judge are required to decide.
about 4 years ago
Scoplaw,
Fine, but it really is an inference drawn from partial facts. In the good Old USA, we are all entitled to our inferences.
about 4 years ago
Gideon,
I have to be brutally honest with you. Sorry about that. If some bored academic tomorrow should produce a study showing that the application of punishments to grapefruits that break jaywalking laws do not deter jaywalking among grapefruits, I should not be surprised at all. But I would want to raise the question: Do grapefruits jaywalk?
You are citing a study that shows that the application of a just punishment to a convicted criminal on the criminal’s THIRD CRIME will not deter the crime. If that is the case, I think we are entitled to conclude one of two things: 1) that the study you point to is tendentious; 2) that punishments simply do not deter criminal activity. If punishment does not deter criminal activity on the third try, why should we conclude that it will have a salubrious effect on the first try?
If 1) is true, we should discount the academic study and get on with our lives. If 2) is true, we should stop punishing people.
There is no doubt in my mind that somewhere, gathering dust in some academic library, there is a study that concludes – convincingly if one accepts the data included in the study – that criminal activity is the result of chemical imbalances in the human vial and punishments therefore do not deter crime. If that study were true, I would conclude that the entire justice system is an expensive and unnecessary waste that ought to be got rid of instantly. Tough for the lawyers here; they will be out of jobs.
But I need not reach that conclusion because I know – without the advantage of a study – that crime is not a disease. This is good news for lawyers.
How do I know this?
I’ve lived a full life, most of it with my eyes open. I know that the person who steals is not a prisoner of his chemical makeup; free will is still a major player in the law.
How do I know that punishment deters criminal activity?
I’ve lived a full life and am proof against studies of this kind, because I went to school in the third grade with Sister Matilda, an adherent of the rule that while mercy may overlook a human failing once – and even twice – it stops short at the third offence, bringing a sharp and just response from Sister Matilda.
I suspect her system would not have worked so well if it were erratically applied – which is the case with Connecticut’s pale and ineffective “third strike and you’re out” so called law.
If the study you cite drew data from Connecticut’s version of “three strikes and you’re out,” it has been polluted with false data because Connecticut’s law, as it has been applied here, is discretionary.
about 4 years ago
Hi Don,
You asked, “Will you agree that the punishment should be progressively more severe the more the criminal engages in criminal activity?”
And honestly, my response must be “no.”
Why should punishment actually be progressively more severe?
And just what is “criminal activity?” Suppose someone has a “bad youth” and then reforms and becomes a priest for 30 years. In year 31, he has a minor screw up, a mistake in personal judgment, the kind we’re all entitled to in the course of our lives. Should our priest be sentenced as someone who “engages in criminal activity?”