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An American Civil Liberties Union BRIEFER 
 
The American public is alarmed about crime, and with good reason.  
Our crime rate is unacceptably high, and many Americans feel like 
prisoners in their own homes, afraid to venture out for fear of 
becoming another statistic.  
 
For more than past 20 years, state and federal crime control policies 
have been based on the belief that harsh sentencing laws will deter 
people from committing crimes.  But today, with more than one million 
people behind bars, and state budgets depleted by the huge costs of 
prison construction, we are no safer than before.  New approaches to 
the problem of crime are needed, but instead, our political leaders 
keep serving up the same old strategies. 
 
Take the so-called "3 Strikes, You're Out" law, for example.  
Embraced by state legislators, Congress and the President himself, 
this law imposes a mandatory life sentence without parole on 
offenders convicted of certain crimes.  Despite its catchy baseball 
metaphor, this law is a loser, for the following reasons. 
 
1. "3 Strikes" Is An Old Law Dressed Up In New Clothes 
 
Although its supporters act as if it is something new, "3 Strikes" is 
really just a variation on an old theme.  States have had habitual 
offender laws and recidivist statutes for years.  All of these laws 
impose stiff penalties, up to and including life s entences, on 
repeat offenders.  The 1987 Federal Sentencing Guidelines and 
mandatory minimum sentencing laws in most states are also very tough 
on repeaters.  The government may be justified in punishing a repeat 
offender more severely than a first offender, but "3 Strikes" laws 
are overkill. 
 
2. "3 Strikes" Laws Won't Deter Most Violent Crimes 
 
Its supporters claim that "3 Strikes" laws will have a deterrent 
effect on violent crime.  But these laws will probably not stop many 
criminals from committing violent acts.  For one thing, most violent 
crimes are not premeditated.  They are committed in anger, in the 
heat of passion or under the influence of alcohol.  The prospect of a 
life s entence is not going to stop people who are acting 
impulsively, without thought to the likely consequences of their 
actions. 
 
Another reason why repeat offenders do not consider the penalties 
they face before acting is because they do not anticipate being c 
aught, and they are right.  According to the American Bar 
Association, out of the approximately 34 million serious crimes 
committed each year in the U.S., only 3 million result in arrests.  
 
3. "3 Strikes" Laws Could Lead To An Increase In Violence 
 
Many law enforcement professionals oppose the "3 Strikes" law out of 
fear such laws would spur a dramatic increase in violence against 
police, corrections officers and the public.  A criminal facing the 
prospect of a mandatory life sentence will be far more likely to 
resist arrest, to kill witnesses or to attempt a prison escape.  Dave 
Paul, a corrections officer from Milwaukee, Oregon, wrote in a 
newspaper article: "Imagine a law enforcement officer trying to 
arrest a twice-convicted felon who has nothing to lose by using any 
means necessary to escape.  Expect assaults on police and 
correctional officers to rise precipitously."  (Portland Oregonian, 
3/94).  Ironically, these laws may cause more, not less, loss of 
life.  
 
4. "3 Strikes" Laws Will Clog The Courts 
 
The criminal courts already suffer from serious backlogs.  The 
extraordinarily high arrest rates resulting from the "war on drugs" 
have placed enormous burdens on prosecutors, defense lawyers and 
judges, whose caseloads have grown exponentially over the past 
decade.  "Three strikes" laws will make a bad situation even worse.  
Faced with a mandatory life sentence, repeat offenders will demand 
costly and time-consuming trials rather than submit to plea 
bargaining.  Normal felonies resolved by a plea bargain cost $600 to 
defend, while a full blown criminal trial costs as much as $50,000.  
Since most of the defendants will be indigent and require public 
defenders, the expense of their defense will be borne by taxpayers. 
 
5. "3 Strikes" Laws Will Take All Sentencing Discretion Away From 
Judges 
 
The "3 Strikes" proposals differ from most habitual offender laws in 
that they make life sentences without parole mandatory.  Thus, they 
tie the hands of judges who have traditionally been responsible for 
weighing both mitigating and aggravating circumstances before 
imposing sentence.  Judicial discretion in sentencing, which is 
admired all over the world for treating people as individuals, is one 
of the hallmarks of our justice system.  But the rigid formula 
imposed by "3 Strikes"  renders the role of sentencing judges almost 
superfluous. 
 
Eliminating the possibility of parole ignores the fact that even the 
most incorrigible offenders can be transformed while in prison.  
Countless examples are on record of convicts who have reformed 
themselves through study, good works, religious conversion or other 
efforts during years spent behind bars.  Such people ought deserve a 
second chance that "3 Strikes" laws make impossible.  
 
6. The Cost of Imprisoning 3-Time Losers For Life Will Be 
Prohibitively High 
 
The passage of "3 Strikes" laws will lead to a significant increase 
in the nation's already swollen prison population, at enormous cost 
to taxpayers.  Today, it costs about $20,000 per year to confine a 
young, physically fit offender.  But "3 Strikes" laws would create a 
huge, geriatric prison population that would be far more expensive to 
care for.  The estimated cost of maintaining an older prisoner is 
three times that required for a younger prisoner -- about $60,000 per 
year. 
 
The cost might be worth it if older prisoners represented a danger to 
society.  But experts tell us that age is the most powerful crime 
reducer.  Most crimes are committed by men between the ages of 15 and 
24.  Only one percent of all serious crimes are committed by people 
over age 60.  
 
7. "3 Strikes" Will Have a Disproportionate Impact On Minority 
Offenders 
 
Racial bias in the criminal justice system is rampant.  African 
American men, in particular, are overrepresented in all criminal 
justice statistics: arrests, victimizations, incarceration and 
executions.  
 
This imbalance is largely the result of the "war on drugs." 
Although studies show that drug use among blacks and whites is 
comparable, many more blacks than whites are arrested on drug 
charges.  Why? because the police find it easier to concentrate their 
forces in inner city neighborhoods, where drug dealing tends to take 
place on the streets, than to mount more costly and demanding 
investigations in the suburbs, where drug dealing generally occurs 
behind closed doors.  Today, one in four young black men is are under 
some form of criminal sanction, be it incarceration, probation or 
parole. 
 
Because many of these laws include drug offenses as prior "strikes," 
more black than white offenders will be subject to life sentences 
under a "3 Strikes" law. 
 
8. "3 Strikes" Laws Will Impose Life Sentences on Offenders Whose 
Crimes Don't Warrant Such Harsh Punishment 
 
Although "3 Strikes" sponsors claim that their purpose is to protect 
society from only the most dangerous felons, many of the "3 Strikes" 
proposals encompass a broad range of criminal conduct, from rape to 
minor assaults. In an open letter to the Washington State voters, 
more than 20 current and former prosecutors urged the public to vote 
against the "3 Strikes" proposal.  To explain why they opposed the 
law's passage, they described the following scenario:  
 
"An 18-year old high school senior pushes a classmate down to steal 
his Michael Jordan $150 sneakers -- Strike One; he gets out of jail 
and shoplifts a jacket from the Bon Marche, pushing aside the clerk 
as he runs out of the store -- Strik e Two; he gets out of jail, 
straightens out, and nine years later gets in a fight in a bar and 
intentionally hits someone, breaking his nose -- criminal behavior, 
to be sure, but hardly the crime of the century, yet it is Strike 
Three.  He is sent to prison for the rest of his life."  
 
9. Let the Punishment Fit the Crime -- A Constitutional Principle 
 
Under our system of criminal justice, the punishment must fit the 
crime.  Individuals should not be executed for burglarizing a house 
nor incarcerated for life for committing relatively minor offenses, 
even when they commit several of them.  This principle, known as 
"proportionality," is expressed in the Eighth Amendment to the Bill 
of Rights:  
 
"Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted." 
 
Many of the "3 Strikes" proposals depart sharply from the 
proportionality rule by failing to take into consideration the 
gravity of the offense.  Pennsylvania's proposed law treats 
prostitution and burglary as "strikes" for purposes of imposing a 
life s entence without parole.  Several California proposals provide 
that the first two felonies must be "violent," but that the third 
offense can be any felony, even a non-violent crime like petty theft.  
Such laws offend our constitutional traditions.  
 
10. "3 Strikes" Laws Are Not A Serious Response To Crime 
 
The "3 Strikes" proposals are based on the mistaken belief that 
focusing on an offender after the crime has been committed, which 
harsh sentencing schemes do, will lead to a reduction in the crime 
rate.  But if 34 million serious crimes are committed each year in 
the U.S., and only 3 million result in arrest, something must be done 
to prevent those crimes from happening in the first place.  
 
Today, the U.S. has the dubious distinction of leading the 
industrialized world in per capita prison population, with more than 
one million men and women behind bars.  The typical inmate in our 
prisons is minority, male, young and uneducated.  More than 40 
percent of inmates are illiterate; one-third were unemployed when 
arrested.  This profile should tell us something important about the 
link between crime and lack of opportunity, between crime and lack of 
hope. 
 
Only when we begin to deal with the conditions that cause so many of 
our young people to turn to crime and violence will we begin to 
realize a less crime ridden society.