Three Strikes and We’re All Out
Walker’s assertion that the three strikes idea has been “almost universally condemned by criminologists and other experts on sentencing” is disturbing. What it seems to really mean is that the idea of three strikes has been universally condemned by those who think like Walker. There is debate, in most disciplines, on a great deal of topics. The statement that it is almost universally condemned really means that there is a substantial group that supports the measures. Walker claims that few support it, but neglects to mention that among those who do support it are listed some of the preeminent names in the field – Hirschi, Gottfreedson, Biller, etc. By marginalizing those who agree with the three strikes proposition, Walker use rhetorical tricks and misdirection to enforce his point of view.
The phraseology of Walker’s support politicizes the debate. Walker cites Zimring, who calls it the “voodoo economics of California crime” (1). The phrase, voodoo economics, inserts a distinct political tone in to what should be a scholarly debate. Walker quotes Skolnick, who compares three strikes to the values of the “dark ages” (1). The phrase, dark ages, conjures up a vision of medieval dungeons, torture chambers, theological trials and heretic burning. A devout opposition to the policy, instead of being presented calmly, resorts to the excessive use of hyperbole.
Walker cites DiIulio’s support for the three strikes idea. According to Walker’s summation of support, those who favor the three strikes laws desire to express society’s “moral outrage” (1) at criminals by keeping them behind bars. This is but another rhetorical trick. Having Walker present this argument is analogous to using Karl Marx to present the good of capitalism, or tasking Adolph Hitler with expressing the ideas of the rainbow coalition. How fair of a presentation would Rev. Jackson get if his ideas were being presented by David Duke? This rhetorical trick is called the straw man. By summarizing one’s opponent’s argument in the weakest possible way, one makes it easier to rebut that argument. Rhetors do not call this a trick, though. Rhetors refer to this practice as an argumentative fallacy.
Walker does ask some valid questions. According to Walker, students reading the book this was excerpted from have been asking three critical questions. The questions are “First, will a law in fact be implemented or simply evaded by the courtroom work group? Second, assuming it is implemented, what impact will it have on the criminal justice system? Third, will it reduce serious crime?” (1).
In answer to the first question, Walker mentions that only California and Georgia have used their “three strikes” laws. In most states, local prosecutors do not file the necessary charges, or the law simply becomes a plea bargaining tool. Walker claims that the law gives the prosecutor a powerful tool with which to secure guilty pleas to misdemeanors. I certainly agree that the law is a powerful tool, but Walker fails to show why having a powerful tool which enables a prosecutor to secure guilty pleas is a bad thing. Walker seems scandalized that there were charge reductions in 67 percent of eligible cases in Sacramento, CA. I think that this is an appropriate use of the law. I feel that there should be both prosecutorial and judicial discretion. If a crime can be defined as a misdemeanor, then that is how it should be prosecuted. If a guilty party chooses to plea instead of going to trial, then that is beneficial to the system. Nowhere does Walker allege that innocent people are pleading guilty to misdemeanors in order to avoid being tried as felons. On the other hand, Walker seems elated that officials in San Francisco will not use it in certain types of trials. Should I feel scandalized? No, this is a wonderful example of the benefits of home rule.
Walker’s second question deals with the impact of the law on the local criminal justice system. According to Walker, the effect of the three strikes laws has “rippled through the local criminal justice system” (2). More defendants are demanding jury trials instead of pleading to third strike offenses. Earlier in the article, Walker came across as condemning the increase in guilty pleadings, and now is condemning the increase in jury trials. Walker seems to think that increase in jury trials is bad because of the cost. Cost is not, and can not be, the bottom line of the criminal justice system. Article III of the United States Constitution, and the sixth amendment to the same, guarantee the right to a trial by a jury. I guess, if it becomes too expensive, we could just not arrest anyone. That would do away with both plea bargains and trials. Or, perhaps, we could revive vigilante justice and lynching. That would be cheaper yet.
In addition to the costs of trials, the entire cost of the law’s full implementation would cost California an extra 5.5 billion a year over a 25 year period. This increased cost is mostly in the form of prison construction and operation. In addition to construction and operation, cost will rise because of the increase in the number of life sentences. Elderly inmates are more expensive to maintain than are younger inmates. This portion of the debate cannot be limited to the three strikes framework. A person who supports three strikes for violent offenders might not support any imprisonment for the use and possession of marijuana. The actual debate regarding elderly prisoners is best conducted outside of the three strikes framework.
Along with cost, Walker raises the issue of over crowding. Over crowding has led to some interesting phenomena. The increase in the number of defendants has actually led to shorter sentences. Before the law, prisoners sentenced to one year did an average of 200 days. After the law’s implementation, prisoners served an average of 71 days. This provides more discretion for the system. It is just one more instance where someone gets to decide if another person goes to or remains in jail. As I have previously stated, I believe there should exist a certain amount of judicial and prosecutorial discretion. In answer to Walker’s second question, regarding the impact on the local level, my answer is that it affects the local criminal justice system exactly as much as the local criminal justice system desires to be affected.
Walker’s third question, will it reduce serious crime, is the basis for a larger debate. Again, Walker claims “most” (2) criminologists are on his side. His biggest critique in this area is that the laws are highly unselective, not taking into account the “full dimension of an offender’s criminal career or propensity to commit crime in the future” (2). Walker argues that the three strikes implementation will likely only catch those who are beyond the peak years for committing crime. If I understand the argument on this, the people who will be caught committing crimes under this legislation will be those who have aged out of criminal activity. If they are caught committing crimes, how can it be said that they have aged out?
Walker accuses proponents of the three strikes laws of exaggerating the amount of crime committed by persons under these laws. Walker cites Zimring saying that persons eligible under the three strikes laws only commit 11 percent of the felonies in California. Walker uses this as evidence that the net effect on crime if the law were fully implemented would be negligible. A proponent of the law would say that California either has a huge percentage (89%) of felonies being committed by first time offenders, or that there are too many loopholes in the law. Walker does not deal at all with people who are outside the scope of the law. Ignoring this obvious implication is equivalent to putting one’s head in the sand.
There are many valid critiques of the three strikes laws. In order to critique this from any particular theory it is first necessary to understand that theory. Before a person can fairly critique three strikes laws from a conservative framework, that person must first understand the conservative framework. Before one can understand a framework, that person must either intuitively and correctly grasp the framework or have it explained, correctly, by a person that correctly understands the theory. In other words, before understanding the conservative framework, it is necessary to be taught the conservative framework – preferably by someone who ascribes to that framework. We’re back to asking Hitler to correctly and impartially explain the ideas behind the rainbow coalition.
According to the assignment sheet, the critique should deal with predictability, efficiency, calculability and control. Yet, according to what we’ve learned thus far in lecture, conservative theory focuses on the individual offender pathology. Conservative theory focuses on rational choice, and that crime is committed by bad people who have decided to be bad. This article, in fact, criticizes three strikes proponents for ignoring individual choice or the “full dimensions of an offender’s criminal career”(2). There are many valid critiques of conservative theory, and in fact the implementation of three strikes laws may be an indictment of conservative theory itself, but three strikes laws seem internally consistent with what we have to date learned of conservative theory. If there is any inconsistency brought out by the Walker article, it is Walker’s own reliance on rhetorical tricks to make his argument work
