Three Strikes Was the Right Call
John J. DiIulio, Jr.
Jerome H. Skolnick's essay on crime policy ("Wild Pitch: `Three Strikes, You're Out' And Other Bad Calls on Crime," Spring 1994), omitted some important facts and ignored several valid arguments.
Echoing the anti-incarceration consensus within criminology, Skolnick asserts that life without parole for thrice-convicted violent felons is a bad policy idea, a "wild pitch." Actually, it's more of an underhanded lob to career criminals, most of whom would hardly be affected by it. In 1991 there were about 35,000 new court commitments to federal prisons. Less than 6 percent of federal prisoners were sentenced for violent crimes. About 30 percent of the 142,000 persons committed to state prisons were sentenced for violent crimes. If 10 percent of all prisoners sentenced for violent crimes were on their "third strike," then the law would have affected some 4,500 persons in a corrections population of nearly 4.5 million. Love it or hate it, "three strikes" would have little impact on the size of prison populations, and would do nothing to plug the worm's hole of phoney "mandatory minimum" laws. These laws have put about three-quarters of all convicts -- over 3 million criminals -- on the streets under "supervision" that in most cases means a monthly chat with an overworked, underpaid probation or parole agent.
Millions of crimes are committed each year by convicted offenders whom the system didn't keep behind bars. Within three years of their release, persons convicted of property crimes are about as likely to commit a violent crime as persons convicted of violent crimes in the first place. And please, no more nonsense about "intermediate sanctions." Recent studies show that fully half of all probationers don't even comply with the basic terms of their sentences (pay fines, do community service, accept drug treatment) before being released from custody, and only one-fifth of the violators are ever disciplined in any way. Meanwhile, repeat criminals who beat the system inflict hundreds of billions of dollars in damages on their victims and society each year.
Skolnick may think the Polly Klass tragedy is mere sensationalism, but all the data show that the system routinely permits known predatory criminals to plea bargain their way to lesser charges at the front end, only to give them numerous get-out-of-jail-free cards at the back end. In 1991 thirty-four states released more than 325,000 prisoners combined, 90 percent of them to community-based supervision. About half of these offenders had served a year or less in prison before their releases. On average, they served 35 percent of their time in confinement. This average held pretty well for all types of offenders. Thus, murderers received a maximum sentence of 20 years but served under 8 years (below 40 percent of their sentences) in prison, while drug traffickers (organized traffickers, not mere possessors) received an average of 4 years and served about 14 months (35 percent of their sentence) before release. The state-level data paint the same bleak picture in finer detail. In New Jersey, for example, the typical prisoner had 9 arrests, and 6 convictions, committed over a dozen serious crimes (excluding all drug crimes) in the year prior to his incarceration, had about a 50-50 chance of victimizing again after his release, and was most likely to victimize poor and minority citizens.
No Americans suffer more from permissive penal practices than the law-abiding minority citizens of inner city neighborhoods. Middle-class and affluent Americans are spending record amounts on private security devices, rent-a-cops, and other measures intended to make the environments in which they live relatively impervious to crime. That spending, in conjunction with now commonplace danger-avoidance behaviors (don't walk alone or ride the subway at night, don't drive through "bad neighborhoods"), help explain the recent decrease in crime rates nationally. But poor folks can't afford private security measures. Instead, they rely mainly on a "justice system" that virtually invites the criminally deviant to prey upon the truly disadvantaged.
Like most criminologists, Skolnick obscures the public protection value of imprisonment behind criminologically de rigueur rhetoric about the steep increase in the rate of incarceration, the U.S. having the highest incarceration rate in the world, etc. But he doesn't mention that the rate increase in community-based supervision has been even steeper. Nor does he note that only 6 percent of state prisoners are non-violent first-time offenders. The federal system, in which prisoners must serve at least 85 percent of their time behind bars, consists largely of "non-violent" drug dealers with multiple convictions. My Princeton colleague, Ethan Nadelmann, has made a number of powerful arguments for decriminalizing drugs. He's persuaded me on some points, but not all, and not on the bottom line of legalization. But most criminologists who balk at mandatory prison terms for drug merchants lack the courage of their criminological convictions. Rather than asserting that we're locking up too many harmless people for too long, criminologists ought to get specificþidentify these people, and tell us, on a jurisdiction-by-jurisdiction basis, precisely what classes of criminals they would like to let out sooner.
I agree with Skolnick that it is irrational to wait until career criminals are drifting into their less crime-prone years before slapping them with long sentences. James Q. Wilson and others made that case years ago. But there are at least four other considerations. First, the differences among the criminal classes in prison today are not that wide. We're not talking about criminals -- we're talking about plea-bargain-gorged convicted and imprisoned criminals -- the vast majority of whom cary a criminal portfolio featuring multiple property crimes, multiple violent crimes, or both.
Second, it's true that older criminals commit fewer and less serious crimes than do younger criminals. But less crime isn't no crime and we don't have any reliable way of predicting which prisoners are harmless "geriatric inmates" and which are still dangerous. (Ask the Massachusetts authorities who recently got burnt by a 61-year-old released prisoner who murdered again.)
Third, if we're really so concerned about waiting too long before hammering repeat criminals with heavy sentences, why not support "two strikes" laws that incarcerate them while they're hot -- if not for life, then for 15- to 20-years with no good time and no parole? California and dozens of other states are moving in this direction. Godspeed to them. Of course, when pressed most criminologists want only "violent" crimes to count as a "strike" -- major drug felonies, carjacking at knifepoint, etc. aren't supposed to count. These folks have to stop decriminalizing things without admitting it, and without telling the rest of us why. This goes especially for all their hypocritical cheers for gun control. New Jersey, like many states, has dozens of tough gun laws. But the penalties for gun law violations aren't strictly enforced. Would those who want more restrictions on guns also favor making serious gun-law violations a "strike"? I would.
Fourth, society has a right not only to protect itself from convicted criminals but to express its moral outrage at their acts by, among other things, keeping them behind bars. For example, what is the right moral posture when it comes to cases like the 73-year-old man recently sentenced to life without parole for the 1963 murder of civil rights worker Medgar Evers? In my view, the public and their elected leaders have a better grasp of the moral and empirical issues at stake than do most of our country's criminologists.
Skolnick and most other criminologists are sure that prison is not the answer. But what, precisely, is the question? If the question's how to solve America's crime problem, plus all the rest of its urban problems, then prison is no answer. But if the question is what can protect the public from violent and repeat criminals, then prison is a very good answer indeed. Professionally, criminologists should not ignore the data on how little time most violent and repeat criminals spend behind bars. Morally, they should not ignore the pleas of a majority of Americans of every demographic description. Nor should they belittle the lived experiences of the Klass family and others that, like my own, have suffered the murder of a loved one at the hands of a released repeat criminal, or had their lives and property trifled with or ruined by thugs whom the system let loose. We can forgive the public, which has become so frustrated with America's revolving door justice that it applauds Singapore's institutionalized canings.
As Skolnick noted, the "100,000 cops" provision of the crime bill would actually mean about 10,000 around-the-clock cops distributed by Congress among hundreds of jurisdictions. The federal bucks are just seed dollars that will dry up in a half-decade, leaving the states and cities to bite the bullet. Still, with artful administration by the Office of Justice Programs (read: not the 1970's saga of the Law Enforcement Assistance Administration revisited), there is still the chance that the community policing provisions of the bill could be married to its manpower provisions. At least that's what the academics (including David Bayley, author of the 10-for-1 rule cited by Skolnick) and government officials who joined me at Brookings for a session with the Justice Department hope will happen.
In the 1980s Skolnick and other criminologists made excellent arguments for community policing. But community policing was oversold as a do-more-with- less strategy. You can't just retrain cops and put more of them on foot patrol. Many big city police forces have contracted. The thin blue line is stretched too thin, especially in the underserved inner city where crime is out of control. Community policing should be embraced for what it is--a do better with more strategy. The cheap talk's over, the bill's due, and it includes more money for more cops. The public is willing to pay; criminologists should belly up to the bar, too, and endorse more police.
Skolnick has cited my January 1994 op-ed on crime for The Wall Street Journal, which had also recently run pieces on crime by syndicated columnist Ben Wattenberg, historian Paul Johnson, and several others. In that op-ed, I supported what President Clinton said on crime in his State of the Union address, and condemned Attorney General Reno and other liberal elites who respond with doublespeak to the public's legitimate calls for tougher anti-crime measures. Skolnick compares this op-ed to a 1990 article I published in The American Prospect , and a 1991 article I co-authored for The Brookings Review. Finding my "message" to be "more tempered" in these essays than it was in the op-ed, he writes that the "hardness of DiIulio's line seems to depend on his forum." He concludes by asking, "Does DiIulio read DiIulio?"
For the record, my TAP article was mainly about prison rehabilitation programs, including drug treatment. I have continued to write on that issue, done what I could to encourage Senate Republicans and others not to throw the drug treatment baby out with the crime bill bath water, and accepted a public tribute on that score from Democratic Congressman Charles Schumer of New York. I'm for more prisons, stiffer and enforced sentences, and whatever rehabilitation programs work to cut costs and reduce recidivism. But there's no need to genuflect at the prisoner rehabilitation altar in an op-ed that calls for tougher sentencing.
Whether or not imprisoning Peter keeps Paul honest, with Peter locked up, society saves itself from the crimes he might have continued to commit. And by keeping him behind bars for all or most of his term, society spares itself the crimes that might have followed his early release. For example, between 1987 and 1991 Florida parollees committed some 25,000 new crimes, including 5000 violent crimes and 346 murders. The Brookings Review article referenced by Skolnick was a cost-benefit analysis of imprisonment based on official criminal records and prisoner self-report data, which revealed that in the year prior to incarceration, the typical prisoner committed about a dozen serious offenses, excluding all drug crimes. The study found that for most prisoners "prison pays" (i.e., the social benefits of incarceration are nearly 1.4 times the social costs).
Last year I completed another major prisoner self-report survey. The results, which will be published this year, indicate that the benefits of imprisonment are even greater than reported in the Brookings study. Still, as I wrote in the first study, "the relationship between imprisonment rates and crime rates is ambiguous." Finding that prison pays at the margin does "not mean that it is cost-effective to imprison every convicted felon."
Amazingly, however, Skolnick and other criminologists have repeatedly cited those obvious cautions and ignored the major finding of the study -- namely, that contrary to all their assertions, prison pays. Incarcerating a greater fraction of convicted felons would yield positive social benefits, and quite dramatic ones if we factored in even a small deterrence benefit and included even a tiny fraction of all drug crimes.
Skolnick notes that the Journal tagged my January 1994 article "Let 'em Rot." As I made clear in my blistering top-of-the-letters-page response, the Journal editors' title has everything to do with the casual callousness of some conservative elites and nothing to do with either the public's concerns about crime or my views, backed by extensive research, on the practical attainability and moral necessity of humane (not luxurious) prison administration. Still, Skolnick asserted that my "message" in the piece was as "draconian" as the title.
If criminologists like Skolnick think it's þdraconianþ to want most violent and repeat criminals to spend most of their time behind bars, to be fed up with fake get-tough measures, to condemn liberal elites who just don't get it, and to want what majorities of every demographic group in America wants in the way of effective justice, then so be it. That says more about the perversity of the criminologists' message (prisons are teeming with petty criminals, Americans are a punitive people, voters are fools, politicians are weathervanes, drugs ought to be decriminalized, and the "experts" always know best) than it does about any venue-sensitive changes in my writing. And since Skolnick liked tarring me with a title against which I had publicly protested, let me note that last November I wrote an op-ed for, if I may imitate Skolnick -- where else? -- The New York Times. My loud, clear, and on-the-record "message" on prisons (more!) was exactly the same there as in the criminologically incorrect Journal piece. But the Times billed the article "Save the Children."
Jerome H. Skolnick Replies
John DiIulio's response is shot through with overheated generalizations. His first paragraph contains his first big -- no, colossal -- error, namely that three strikes "would have little impact on the size of prison populations." That's not true in California, the nation's most populous state, where three strikes is currently on the books.
DiIulio assumes that only "violent" felonies count as "strikes," but the California law itemizes "serious" felonies as well. Consequently, California is expected to imprison an additional 3,850 as a result of the Three Strikes law next year.
DiIulio estimates that three strikes will affect a total of only 4,500 felons in all state prisons in a given year based on 1991 estimates of prison population. Subtract 3,850 from 4,500 and you have only 650 additional felons incarcerated for life, in a given year, as a result of the three strikes laws impending in other states. That's not believable.
DiIulio's point would be better made as follows: the impact of three strikes laws on the size of prison populations will depend on how legislatures define third offenses that count as "strikes." DiIulio himself doesn't see much difference between property offenders and violent offenders. He mistrusts intermediate sanctions as well, although he fails to mention how starved parole and probation services are in comparison to prisons. DiIulio disavows "Let 'em rot" as his maxim, but "Lock 'em up" seems to be advised.
California's legislature has plenty of DiIulio-like thinkers. Consequently, the Department of Corrections expects significant increases in prison population as a result of three strikes, and so will other states if they follow California's lead. Moreover, since these are life sentences, their impact on prison population increases with time.
Even before three strikes legislation passed in California, the Department of Corrections predicted that its 1999 population would be more than seven times what it was in 1980. The CDC now predicts that three strikes will enlarge this number by more than half again.
The CDC estimates that three strikes will require at least 20 new prisons, in addition to the dozen already under construction. Eventually, in 2027-28, California is expected to incarcerate 272,438 criminals -- the equivalent of building an electric fence around the city of Anaheim.
Interestingly, nobody, including three strikes supporters such as Governor Pete Wilson, disputes these figures. What they warrant instead is that prisons save money.
In New Jersey, where the Senate unanimously approved a three strikes law on May 12, Louis F. Kosco, the bill's sponsor, echoed this theme to a New York Times reporter who questioned how cash-strapped governments will cover the cost of booming prison populations. "Each time they go through the revolving door, repeat offenders cost the state a great deal in legal and parole expenses," he said. "And we must take into account the economic and social costs . . ." George Romero, Chief Economist of the California Governor's Office of Planning and Research, issued a report in late February which estimates the amount of these savings. The average criminal, he says, hits the rest of us up for around $200,000 a year.
Consequently, although Californians will spend $383 million to imprison an estimated additional 3,580 under the three strikes law now in effect, the state will save, Romero computes, $716 million. California will really strike it rich in 2027, when the state can count on imprisoning 272,438 at a whopping savings of $54 billion compared to a measly $6.3 billion in prison costs. But three false assumptions undermine the report's conclusions:
First, the report assumes a finite group of criminals. If we keep them locked up for life or close to it, crime, the report assumes, will tumble significantly. The fallacy is this: serious violent crime is committed primarily by 15-24 year old males. The rate declines when they move into their thirties, as DiIulio acknowledges.
As Gottfredson and Hirschi assert convincingly in their recent A General Theory of Crime, the serious, predatory offenses said to be associated with career criminals are actually committed by young people "some of whom go on committing them for awhile, but most of whom spend their . . . late twenties running afoul of the authorities over alcohol, drugs and family squabbles." Even Sheldon and Eleanor Glueck, after a lifetime of research, report a substantial reduction in serious criminality in the 25-31 age range. If we lock them up for life, as three strikes demands, they will be replaced by younger criminals. Geriatric cases will fill the prisons, while offenders will remain youthful. In the end, the public is no safer.
Second, there is no such animal as "the average criminal" or an "average murderer." The eight-year figure supplied by DiIulio includes premeditated murderers, and those who kill accidentally while driving under the influence. Both deserve punishment, but criminal law sensibly distinguishes their respective moral culpability. Sensible public policy should not penalize all felons, even violent felons, with equal, mandated, discretionless severity. Three strikes laws, and Romero's analysis, tend to treat all felons equally. This is neither morally justified nor fiscally sound.
Finally, prison costs are certain while savings are speculative. While shelling out for the five-fold increase in corrections since 1980, Californians have had to sacrifice other services in education, health and welfare. California's public schools, which once ranked near the top, now rank near the bottom, close to Mississippi's. Its higher education system has been ravaged by the need to offer a generous retirement package to many of its most distinguished faculty because it can no longer afford to pay them without firing twice as many junior faculty.
Three strikes will shift the budget balance sharply in favor of prisons and away from educational and social services, in the absence of which teenage crime will flourish. Vast "savings" from expanded prisons are the 1994 crime control version of voodoo economics.
Even without three strikes legislation, California is already the nation's biggest jailer, with one out of eight American prisoners occupying its cells. California's prison system has grown twice as much as the systems in the next three largest states (New York, Texas, and Florida) and four times as much as Western Europe's.
If high rates of imprisonment (recall DiIulio wants "more prisons, stiffer and enforced sentences") lead to feelings of public safety, Californians should feel twice as safe as New Yorkers, Texans and Floridians and four times as safe as citizens of France. They don't. As Joan Petersilia and Peter Reuter conclude in their RAND book Urban America: Policy Choices for Los Angeles and the Nation, California locks up too many people, often for the wrong offenses (drug offenders accounted for 26 percent of California prisoners in 1990, up from 11 percent in 1980) and has too little to show for it in enhanced public safety.
As reports of these facts are filtering through, the public and the press are beginning to reconsider. For example, a 70-year-old San Francisco woman refused to testify against an addict-burglar who had broken into her car. She didn't think he deserved a life sentence and called the Three Strikes law "a holocaust for the poor" in a local newspaper.
Even the Klaas family has come out against the current law, saying they were bamboozled into supporting it in a time of grief. They support a more moderate bill that eliminates household burglaries as strikes. The California three strikes law is tough and dumb, and anyone remotely familiar with the criminal justice system understands that.
According to DiIulio, I and other criminologists are out of touch with the concerns of middle class Americans. This is hyperbolic nonsense. Granted, most criminologists are skeptical that expanding imprisonment by mandating life sentences is a solution to America's crime problem. But we are skeptical for the very reason that DiIulio is: "If the question's how to solve America's crime problem . . . then prison is no answer." If we starve education and social services to pay for excessively long prison sentences, if we concentrate on building prisons at the expense of schools, crime will increase and public safety will suffer.
The criminal sanction is both an expression of moral outrage and a method of controlling crime. Unfortunately, the two goals are not always in sync. The call for long, mandated prison sentences is a response to moral outrage. Some criminals should be locked up for decades, even for life, to protect the public. For that goal we need more, rather than less, discretion from judges and parole boards.
Likewise, it makes no sense to mandate five year sentences for an 18-year-old caught selling drugs, unless we simply want to express moral outrage. Someone else will almost certainly take his place. (See Daniel Feldman, "Imprisoner's Dilemma," TAP, Summer 1993).
Yes, time served for violent felonies has decreased in the last ten years. Two trends are responsible. We've been sending more nonviolent offenders to state prison because local jails are overcrowded, and we've been locking up parolees who flunk their drug tests. The latter account for about 25 percent of California's prison population.
DiIulio's rantings about criminologists as "elitists" belie a central truth. Criminologists are deeply concerned with controlling crime, especially in communities of disadvantage. I didn't write, as DiIulio claims, that the Polly Klaas tragedy is "mere sensationalism." I did say that had supposedly "soft-on-crime" indeterminate sentencing been in effect, Richard Allen Davis would not have been released.
I also tried to account for the fact that at a time when crime rates are flat or declining in California (and the nation), crime has become America's number one concern. Klaas's murder, plus a number of other highly publicized crimes, I wrote, "have sent a scary message to the majority of Americans who do not live in the inner city." Polly was an especially lovely, vivacious girl with a winning smile. And she was white and became "America's daughter." But the fact remains, a teenager's chances of being murdered in east Oakland or southeast Washington D.C. are considerably higher than in Petaluma, a bucolic northern California suburb.
What most criminologists question are policies directing funds away from crime prevention measures in disadvantaged communities and toward the expensive financing of mandated life sentences, especially for those convicted of nonviolent felonies. If crime control is the issue, criminologists have a lot to contribute. If moral outrage is what it's all about, the ranters and ravers will win the day.
Nor are criminologists opposed to appropriate, just, and effective incapacitation. When thoughtfully applied, it can protect the public against repeatedly violent criminals. True, we will make mistakes. The answer, however, is not to eliminate discretion, but to use it wisely, as is done in Minnesota's widely acclaimed sentencing guideline system.
Even DiIulio agrees imprisoning criminals for decades when they are beyond their high crime years makes no sense. He wants to hammer them while they're hot. The issue then becomes what does it mean to hammer, for which offenses, and how hot?
I agree that prosecuters will soften the impact of three strikes in California and other states. Prosecutors are the most powerful actors in the criminal justice system. They can and will bargain, no matter what the legislation says. Even so, California and other states that follow its model will experience a vast expansion of imprisonment.
Let me conclude on a personal note. This business of argument by "elite" name calling (including Janet Reno in that category, no less) scarcely advances the debate. Besides, how can a Princeton professor and contributor to the Brookings Review and The American Prospect classify others as elites and himself as an ordinary working stiff? C'mon, let's be real. If the cultural revolution were to come to America, John DiIulio and I would be sentenced to plow the fields together, side by side.
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