In 1983, a young man named Michael was brought before a Pennsylvania court on a charge of armed robbery: he stole $50 from a taxi driver using a toy gun. A few days later he was arrested and was subsequently convicted. Although the trial judge sentenced Michael to 6 months in prison and required that he repay the $50, the prosecutor demanded the 5 year minimum sentence required by state law. The trial judge ruled the mandatory sentencing law unconstitutional, and Michael served his prison time and repaid the money. Four years later, the state supreme court ordered the trial judge to sentence Michael to 5 years in prison. The trial judge refused and resigned. The judge to whom the case was reassigned permitted Michael to remain free pending another appeal to the state supreme court. Michael realized the futility of his cause in court and quietly disappeared, and he remains at large today.
Recently, one of the most popular proposals in the effort to get tough on crime has been the "three-strikes-and-you're-out" proposal. This law, which is already in effect in Washington state and California, requires that offenders convicted of three violent crimes be sentenced to life in prison without parole. This proposal has received broad-based support from federal and state politicians including President Bill Clinton, Senator Bob Dole, and Governor Mario Cuomo. The law is based on the idea that the majority of felonies are committed by 6% of "hard core" criminals, and that crime can be reduced by getting these criminals off the streets. Unfortunately, the proposal fails to take into account several major flaws in the law and its implementation.
The first problem the proposal is its principle of removing judicial discretion, severely hindering a judge's ability to make the punishment fit the crime. One man in Washington is faced with life in prison if convicted of his third felony: stealing $120 from a sandwich shop by putting his finger in his pocket and pretending to have a gun. His prior two convictions were for similar crimes. While it is certainly true that some incorrigible felons deserve life in prison, it is patently unfair to create a sweeping standard that would force the courts to sentence offenders to life imprisonment for relatively minor crimes. The three-strikes law gives a judge no discretion in cases like that of the Washington man, or Michael.
Even for more serious crimes, removing all discretion from sentencing denies many prisoners the chance to turn their lives around. Mimi Silbert, president of the Delancey Street Foundation, a half- way home for prisoners, tells the story of Albert. Albert was sent to San Quentin Prison at age 19; by then he had committed 27 armed robberies. Under three-strikes-and-you're-out, he would still be in prison. Instead, he was released; at age 36, he cares for his children, works as a plumber and a substitute teacher, and has led a drug-free, crime-free life. A three-strikes law would deny this chance to Albert and to many others like him. Felons are capable of reform, but this law would deny them that chance. In 23 years, the Delancey Street Foundation has helped more than 10,000 felons turn their lives around and become happy, productive citizens. The cost of three-strikes not only includes the expense of keeping these felons in prison for life, it also deprives society of the contribution made by people like Albert.
The assumption that all three-time offenders are incorrigible criminals who can never hope to become law-abiding citizens is a gross oversimplification of a complex problem. Three-strikes is based on this assumption that a few extreme cases are representative of all criminals, and is therefore divorced from reality. Mimi Silbert points out that "Our justice system works in extremes. Either we excuse the criminal...or we give up on him, lock him up, and throw away the key. As with any extremes, these...