A liberal think tank released a report today that casts doubts on California's three-strike mandatory sentencing law. After a Spencer Michels background report, Elizabeth Farnsworth discusses the impact of the law with Marc Mauer and Gordon Spencer.
SPENCER MICHELS: Three strikes and they're out. They are not baseball players; they're criminals convicted of felonies at least three times. And they aren't out; they're in prison. Half of all states now mandate increased sentences for repeat offenders under laws called three strikes, though only a few use them extensively. The first state to enact such a law was Washington. Since 1993, anyone convicted of three separate violent crimes has been automatically condemned to life in prison without parole. California's three-strikes law came a year later. It doubles the minimum penalty for a second felony conviction, and mandates a sentence of 25 years to life for a third, if the first two offenses were serious, like a burglary, or violent. The third offense does not have to involve violence. It could be, for example, petty larceny. So far, more than 50,000 criminals have been sentenced under the new law. That's nearly one-fourth of the state's prison population and far more than any other state. Commenting on the new legislation on the NewsHour in 1994, the director of corrections for Washington State explained his objections.
CHASE RIVELAND: I think we're making proposals that may be emotionally satisfying and politically satisfying, but indeed are not really dealing with the violence on our streets. And I have great concern that we walk away after passing such an initiative and that we think we've solved something. And quite honestly, we've changed very little at all.
SPENCER MICHELS: Dan Lungren, then California's attorney general, argued the other side.
DAN LUNGREN: In terms of dealing with the problem of the repeat offenders, in fact, incarceration does work. The philosophical question or public policy question is whether you wait until this person who has proven by his history that he commits serious felonies-i.e., violent felonies by definition in California law, in the State of Washington-- whether you wait until he commits a classified serious felony the third time around, or whether you believe that based on his history, the third time he commits a felony, that's sufficient reason for us to believe he hasn't learned a lesson.
SPENCER MICHELS: Judges in California complained that the law denied them discretion in setting prison terms, and in 1996, the state Supreme Court agreed. It ruled that judges could, in the interests of justice, throw out prior convictions in determining three strikes. Advocates of three strikes credit the laws with plummeting crime rates. But critics argue that crime rates have also declined in states that don't have or don't enforce the three strikes laws. The Sentencing Project, a nonprofit advocacy group which has opposed three strikes, produced a report today analyzing the impact of the California law. Among the findings: The three- strikes law has had little impact on the crime rate in the state; it has resulted in disproportionate sentencing, and has led to an older prison population, because felons are spending more time in prison.
RAY SUAREZ: And Elizabeth Farnsworth takes it from there.
ELIZABETH FARNSWORTH: Now, two views on the impact of the California law. Marc Mauer is a co-author of the Sentencing Project report released today. He is the assistant director of the project, which advocates criminal justice policy reform and alternative sentencing programs. Gordon Spencer is the district attorney for Merced County, California, and President of the California District Attorneys Association. Mr. Mauer, let's get specific. What's your evidence for saying that there's been little impact on the crime rate?
MARC MAUER: Well, California has had a substantial decline in crime since three strikes was enacted, but in many ways it mirrors what's happening nationally. If we look more carefully at it, during the 1990s California had a declining crime rate for several years prior to three strikes and this has continued after three strikes. Now most criminologists would agree there were a host of factors that were changing: changes in the economy, changes in policing, changes in the drug trade, and, yes, increases in incarceration as well. The trends don't seem to change very much, though, in California. The other thing that we see in California as well is that if we want to assume that somehow three strikes had a deterrent impact on people who are eligible for its very severe penalties, then we should have seen more of a decline in crime among those people eligible for three strikes with two prior serious offenses. In fact, we don't see anything like that at all. The decline of the three strikes eligible crime-committing group is no different than the population at large. So whatever is going on in California to reduce crime rates doesn't seem to be terribly affected by the three strikes policy.
ELIZABETH FARNSWORTH: Gordon Spencer, what's your response to that?
GORDON SPENCER: Well, we have reviewed the study and it's very clear to us that this was done not in an environment that we deal with every day. This was done with numbers and statistics and calculators. I wish that there would be a study in which they would go out to prosecutors throughout the state and say, "can you show me how this has had a deterrence on crime?" And I would be willing not just to talk, but to show you files where I could demonstrate that if we had had a three strikes law in 1991 or 1992, very violent crime that occurred in 1996 wouldn't have occurred. Instead -- and that person would have been in prison because we would have applied the three strikes law previously. There are a number of other criticisms of the report. First of all, that it doesn't primarily note that California's three strikes law really only applies to people who are the worst of the worst, who have committed crimes of a violent and serious nature. There's a long list, but they're really society's worst crimes, and we may argue about the inclusion of a burglary for instance. But by and large, we're talking about people with prior convictions of rape and robbery and manslaughter and murder.
ELIZABETH FARNSWORTH: Let me interrupt you there. What about the charge in your report that there is disproportionate sentencing? One of the examples given is of a man who had two prior convictions for residential burglary, but who was then sentenced for 25 to life for stealing a pair of sneakers. That does happen and that the third crime doesn't have to be a violent crime, right?
GORDON SPENCER: Well, it can happen. But remember, as the study doesn't point out, remember that in California both prosecutors and judges have the discretion to look at a particular sentence and decide if that sentence based on the case, based on the defendant and based on his priors is an appropriate one. All the three strikes law really does is provide an enhanced menu of options that are available to a sentencing judge. And he can do the full course and send the guy to prison for 25 years, or he can toss out priors and he can say it's not appropriate to do that in this case, it's not in the interest of justice. So this isn't zero tolerance, this isn't mandatory sentencing. These are sentencing options that are given first to the prosecutor to be reviewed by the court.
ELIZABETH FARNSWORTH: Mr. Mauer, first on disproportionate sentencing and then on whether there is discretion.
MARC MAUER: Well, certainly, when the law was adopted in 1994, that was not how it was portrayed, as one that allowed discretion. It was portrayed as if you commit three serious crimes, we're going to send you away for 25 to life, we're going to get tough on crime. That was the message that came across. And the underlying message was also that this is the most serious offenders. A case this year involved a man whose third strike was stealing an umbrella and two bottles of liquor with a value of $43. Did he have some prior offenses? Yes, he did. He had some convictions for robbery and armed robbery. The problem is he's been sentenced for those crimes, he's served his time, now he's out on the street; he's now doing 25 to life. The taxpayers in California are spending roughly a half million dollars to keep him locked up. It's a real question whether this is a very wise use of public safety funds for California residents.
ELIZABETH FARNSWORTH: Mr. Spencer, give us some examples of how you've used your discretion?
GORDON SPENCER: Well, if we have some residential burglaries, where a 20- or 22-year-old has gone into a residence, and this is what we call a cold burglary where no one is there, and five or eight years later he comes up with a possession of narcotics charge, we generally in those cases don't file any strikes. I think it's important to note from the study that only 1,200 people in all of California each year get the full menu of three strikes treatment and are sent to prison. And this is in a state with 34 million people where we file 200,000 felonies a year. So really three strikes is only used to its full and absolute degree in one out of every 150 felony cases that we file.
ELIZABETH FARNSWORTH: Mr. Mauer? Mr. Mauer?
MARC MAUER: Well... The discretion is part of the criminal justice system. I know many prosecutors use it wisely and thoughtfully and all that. The problem is when you have a system that's based on discretion with such exaggerated terms possible, you can get enormous disparities. The prosecutor in San Francisco is not particularly fond of the three strikes law and uses it only rarely, prosecutors in other parts of the state use it quite frequently. So you've got Offender A in one county who may be prosecuted and do two or three years in prison, Offender B in the same offense, same history, is doing 25 to life from a different county. I think this really calls into question the fairness and appropriateness when you have such wide ranges possible, and prosecutors making these decisions behind closed doors, it's very hard to know what goes into the decision, whether this is really an appropriate one in terms of fairness and justice.
ELIZABETH FARNSWORTH: Mr. Spencer, what about the differences between districts - and various districts?
GORDON SPENCER: Well, there are differences, and each prosecutor in 58 counties of California is elected. And the voters of that particular district have a right to decide what they want in a prosecutor. Recently there was a large contested election for district attorney in Los Angeles, and one of the big issues in that race was the application of the three strikes law. So the public in that particular jurisdiction had an opportunity to hear what both candidates thought about that, and vote accordingly. So, I mean, unless you want to have a statewide standard for the entire population of California, which I don't think is advisable, you need to have discretion invested in prosecutors, and please don't forget that it's also invested in judges. Mr. Mauer says it's behind closed doors. What happens in court isn't behind closed doors, it's open, there's a record made, and the judges also look at what we do and they have the discretion to say "appropriate" or "not appropriate."
ELIZABETH FARNSWORTH: Mr. Mauer, I want to move onto another charge in the report. Your charge that this law has produced a ticking time bomb, that the number of elderly offenders is increasing and there is a misallocation of crime fighting resources because of that. Explain.
MARC MAUER: We've heard there are only 1,200 offenders sentenced each year to 25 to life. When the law is fully implemented 25 years from now, that translates into 30,000 prisoners in California doing 25 to life. We estimate conservatively a cost of $750 million for the taxpayers. Now, what are the implications of that in terms of crime control? 80% of those people will be over the age of 40, many of them, 50, 55 years old. Now, we know from all sorts of crime demographics over many years that the aging process is one best reduction... ways of reducing crime. People over the age of 50 are far less likely to commit a crime than somebody at the age of 25. So if you think of how to use crime control dollars, California will be investing enormous resources into a group of offenders who are on the sort of down side of the criminal career, if you want to think of it that way. Meanwhile, you've got a group of younger offenders for whom we could be investing in families and communities, prevention programs, sentencing alternatives, the dollars are finite. Every dollar will not go into housing an elderly offender is not going to go into prevention programs for potentially younger offenders, and I think that's real misallocation of how you want to approach the crime problem.
ELIZABETH FARNSWORTH: Mr. Spencer, do you think there's a misallocation?
GORDON SPENCER: No, I don't think so. I think you need to remember that people can commit crimes at any age; certainly there's likelihood that an elderly person is going to do that. But we have recently prosecuted a 60-year-old child molester; our most recent bank robbery, which included cops being shot at was by a 43-year-old career bank robber who fired fifteen or twenty shots at police officers. So while there's only a 5% chance that he might commit a crime because he's over 40, that doesn't make his bullets 95% less lethal. So remember also that these are people who have built up a large resume of committing the worst of California's crimes. That's what is in their background. And they know, criminals know about their Miranda rights and they know about three strikes, and if they elect to commit a new crime knowing that they have strikes and knowing what's available to them, then I think it's only appropriate that they be held responsible by being placed in prison for the crimes against Californians.
ELIZABETH FARNSWORTH: Mr. Mauer, what's your goal with this report, why did you come out with it now? Is there a reason?
MARC MAUER: Well, you know, one of the problems in developing crime policy is that it's a very emotional subject; it's become very politicized. There was a period of time in 1994 when this three strikes was all the rage, and there was a great deal of discussion. I think personally it was unfortunate that we took a baseball slogan and tried to translate that into crime policy. It became very popular, it became very sexy and had this image of serious violent offenders and people were concerned about crime, wanted to do something. The problem is we often forget about these policies once they're enacted. Here we are seven years later, the results are in, I don't think the results are encouraging. Now, the implications for the rest of the country essentially are if you want to do something about crime policy, you can put every shoplifter away for the rest of his life and yes he won't commit a crime, but that would not be very wise. Similarly, we need to look at all offenders, how we use prison, how we use alternatives, how we invest in communities differently.
ELIZABETH FARNSWORTH: And, Mr. Spencer, what do you say, what lesson should people in the rest of the country take from California's experience?
GORDON SPENCER: Well, I would just invite them to examine this report and make a judgment in their own mind about whether the people studying this issue went out and talked to the people who are administering this law every day, because as I said, if Mr. Mauer would like to come to my office, I can pull files and show him that this is a wonderful tool that if available to us earlier, a crime that occurred, for instance, in 1996, a vicious rape, wouldn't have occurred because that person would have been put in prison a long time before with application of the three strikes law. So please examine the report and see if it's just numbers and statistics, or see if there is in fact an honest and straight forward going out and seeking the opinions and the cases that make the case that the three strikes law has made California a safer place to live. And there are 2,000 more people alive each year since three strikes was passed.
ELIZABETH FARNSWORTH: Gordon Spencer and Marc Mauer, thanks a lot.