What if you received two 25 to life jail sentences for shoplifting? It surely sounds like a ridiculous practice that may occur in some distant authoritarian regime but has no place in the United States judicial system. However, that is a sad possibility under the three strikes legal provisions originating from California and currently implemented in almost half of the US states. Also known as habitual offender laws, they direct courts to give harsher sentences to those who have been already convicted of serious offenses twice before – a seemingly valuable but inherently flawed practice. While the three-strikes laws have the potential to deter recidivists from committing crimes, they do so at the cost of prison overpopulation, additional expenses to the justice system, and unfair treatment of minorities.
The three-strikes laws belong to the “get tough” approach to justice, together with other measures that concentrate on punishment rather than rehabilitation or crime prevention. It has been the dominating approach in the US justice system for over 40 years (Andrews & Bonta, 2011, p. 40). As crimes became more frequent and the public became more aware of them because of the new media channels, public tolerance toward repeated offenders wore thin. California was the first state to introduce a three-strikes law in the early 1990s, and the policy rapidly proliferated across the country, even with certain variations in different states (Lynch, 2011, p. 686). The results were disconcerting, as some states were quick to incarcerate many felons under these provisions, with California alone imprisoning more than 40,000 criminals in the first eight years of the policy implementation (Schiraldi, Colburn, & Lotke as cited in Lynch, 2011, p. 686). Thus, the three-strikes laws, together with other “get tough” approaches such as mandatory minimums, have led to mass incarceration and have resulted in unnecessarily large government expenses (Durlauf, 2011; Lynch, 2011). Mass incarceration refers to the contemporary phenomenon in the US justice system whereby the number of prisoners against the total population is quickly growing (Lynch, 2011, p. 673). Currently, approximately 2.4 million Americans are imprisoned, and this number accounts for 25% of the total incarcerations in the world (Sabol, West, & Cooper as cited in Cullen, Johnson, & Nagin, 2011, p. 49S). Maintenance of such extensive prison networks requires significant financial investment on the part of local and federal governments. Not only mass imprisonment is an economic burden, but it is also based on a narrow understanding of how to prevent crimes. The money that goes to cover the costs of imprisonment could be used more efficiently on proactive “situational crime prevention programs” and intervention strategies (Cullen et al., 2011, p. 61S).
Punitive justice practices, apart from causing an imprisonment boom, have also been found to disproportionally affect particular ethnic and socioeconomic groups (Hetey & Eberhardt, 2014, p. 1949). About 40% of all inmates in the US are African Americans, even though they only make up about one-tenth of the US population (Pew Center on the States as cited in Cullen et al., 2011, p.49S; Hetey & Eberhardt, 2014, p. 1949). Three strikes laws have been found to contribute to this disparity. In California, African Americans represent less than 7% of the state population, but they account for 45% of the inmates convicted under the three strikes provisions (Ehlers, Schiraldi, & Ziedenberg as cited in Hetey & Eberhardt, 2014, p. 1949). Even though the outcomes of the punitive practices are disproportionate, there is little public support to amend or abolish such laws because of the existing preconceived notions and stereotypes. The study conducted by Hetty and Eberhardt has found that, when people become aware of the current racial disparities in the judicial system, instead of expressing concern about this inequality, they tend to experience more intense feelings of fear of crimes and thus become more accepting of the policies that produce such inequality. Policy-makers should, therefore, be aware that “institutionalized [racial] disparities can be self-perpetuating” (Hetey & Eberhardt, 2014, p. 1952). While it may be indeed true that some types of crimes are committed by representatives of certain ethnical groups more often, there is nevertheless accumulating evidence of an existing bias against African Americans in the US judicial system.
It is only fair to acknowledge that the effectiveness of the three-strikes laws has been closely investigated by several scholars, whose evaluations of the policy differ depending on the methodology they use. However, there seems to be a shared understanding that the three-strikes laws are capable of reducing the number of crimes, thanks to either their incapacitation or deterrence effects. Incapacitation refers to the loss of freedom by criminally active individuals: while they still may be willing to commit crimes, they are unable to do so because they are confined within the prison walls (Durlauf & Nagin, 2011, p. 19). The incapacitation effects are fairly straightforward and thus rarely disputed; deterrence effects, on the other hand, are much more controversial. Perhaps, the most significant study has been conducted by Helland and Tabarrok, who attempted to isolate the deterrence-related factors to measure their effectiveness in preventing crime. The scholars found that California’s three-strikes laws reduce recidivist crimes by 17% to 20% (Helland & Tabarrok, 2007, p.328). While these findings are quite significant, they nevertheless do not justify the necessity of the three-strikes laws, at least in their present form. First of all, the current application of these laws often results in puzzling convictions, such as a 27-year sentence for trying to steal an item worth less than a hundred dollars (Austin, Clark, Hardyman & Henry as cited in Andrews & Bonta, 2011, p. 42). Surely, these actions still constitute a crime, but a punishment for it should be, above all, proportionate. Moreover, scholars claim that other crime prevention practices, such as rehabilitation, are more cost-effective and more beneficial to society in the long run, as they target the root of the problem rather than deal with its consequences (Andrews & Bonta, 2010; Durlauf & Nagin, 2011).
Like any other public policy, the three-strikes laws present a trade-off to policymakers: sacrifices, at the very least financial, are necessary to achieve the desired goal. It is then up to the legislators to establish the boundaries of what is acceptable in their society. Surely, implementation of the three-strikes laws does produce the desired outcome, at least to a certain degree, when it comes to preventing crimes. However, research indicates that these outcomes come at a price that should not be acceptable in American society: not only has the system become a financial burden to the government, but it also contributes to the mass incarceration of American citizens and disproportionately affects the country’s minority groups. Thus, the three-strikes laws need to be at the very least revisited and, hopefully, supplemented with other crime prevention measures that do not have such a devastating effect on society and its members.
Andrews, D.A., & Bonta, J. (2010). Rehabilitating criminal justice policy and practice. Psychology, Public Policy, and Law, 16(1), 39-55.
Cullen, F.T., Johnson C.L., & Nagin, D.S. (2011). Prisons do not reduce recidivism: The high cost of ignoring science. The Prison Journal, 91(3), 48S-65S.
Durlauf, S.N., & Nagin, D.S. (2011). Imprisonment and crime. Can both be reduced? Criminology & Public Policy, 10(1), 13-54.
Helland, E., & Tabarrok, A. (2007). Does three strikes deter? A nonparametric estimation. Journal of Human Resources, 42, 309-330.
Hetey, R.C., & Eberhardt, J.L. (2014). Racial disparities in incarceration increase acceptance of punitive politics. Psychological Science, 25(10), 1949-1954.
Lynch, M. (2011). Mass incarceration, legal change, and locale: Understanding and remediating American penal overindulgence. Criminology & Public Policy, 10(3), 673-698.