Three Strikes Against "Three Strikes"
As Oprah-esque as it sounds to say this, I think there were really just a handful of teachers who really influenced the way I now view the world. And one of them was Gary Wolfram, in his Public Choice class at Hillsdale College.
I am still amazed at Wolfram’s abilities. If my memory serves, he had to give an opening lecture in the big auditorium to the incoming freshmen class. And not only was he hilarious, but he was hilarious in the midst of giving a lecture on political economy. In particular, he pointed out the crazy, unintended consequences of government measures.
For example, seatbelt laws can actually do little to reduce traffic injuries, while they definitely put bicyclists and pedestrians in more danger. (I leave the proof as an exercise to the reader.)
But my favorite example of the night, was his discussion of “three strikes and you’re out,” some feel-bad (get it?) law-and-order gimmick that had recently been put into effect. This was a while ago, but I think I have the details right: Under this new rule, a federal judge had to automatically give life in prison to anyone convicted of his third felony. At first that sounds OK, but then somebody informs you that a high school senior was charged with a felony for bringing a smokebomb to school. I found that story after 45 seconds of googling.
Do you really think it’s right to take away all discretion from judges during sentencing, if someone has committed the equivalent of three smokebomb pranks? Is it really just that that person gets life in prison? Because that’s what will happen, if “three strikes” is in place. You can’t hope that “oh they’d override the rule” to prevent that outcome. That’s the whole point; you’re taking away the judges’ ability to use commonsense, to realize that the statutes as written were not intended to yield this massive punishment on this particular defendant, and so the judge will ignore the sentencing guidelines. “Three strikes” takes away this power, so as to keep those effete liberal justices from legislating from the bench. “Three strikes” removes yet another buffer between the people and the raw, arbitrary actions of the federal government. I feel much better knowing that the mandates coming from the 535 members of Congress first get refracted through the prism of scores of “activist” judges who don’t do as they’re told. Yes, in a free judicial market, where judges competed for clients who wanted to have cases heard in a reputable court, the judges would likely be extremely fastidious and could back up every decision with precedent. Their reputations–and hence livelihood–would depend on it. But when the federal government has a monopoly on the entire judicial system in the country, I’m not sure that you want the people applying the rules to do what their told.
But I digress. Wolfram’s main argument against “three strikes” was that it gives the guy with two felony convictions an incentive to kill all the witnesses if he decides to hold up a liquor store. That person knows that if he gets arrested again, he’s spending life in prison. So he’s going to make darn sure he does what he can to prevent that. The marginal cost, if you will, of killing an additional person is zero, at least in a state with no death penalty.
So even from a purely pragmatic viewpoint, if the goal is to minimize “crime,” we have to realize that the deterrence effect may indeed reduce the commission of many types of felonies. But it will probably push up the number of homicides. It’s not clear, a priori, whether “three strikes” actually decreases crime. When you throw on all the injustices that it will occur in terms of harsh penalties, it seems an obviously bad policy.
And just to round out the title of this post, let’s not forget that if you lock someone up for life, then you have to siphon yet more money from the taxpayers, to keep the slave, er, prisoner, alive. The third and final strike against “three strikes.”
