Tough on Crime. So What?

Attorney General Eric Holder has announced he will seek to get rid of mandatory minimum sentences for some low-level drug offenders. This is welcome but how effective will it be?

Over the past thirty-five years, notions of retribution and deterrence have dominated the criminal justice policy, by removing offenders from society. The rhetoric of “getting tough on crime” exercises a powerful hold on American society. The prison population of US exceeds two million, the highest rate in the world now and approximately one quarter of all people imprisoned in the world.

Since early 1990s, various pieces of legislation have been introduced in various states, basing a sentencing system on the principle of “three strikes and you’re out.” i.e. on the third felony conviction, there will be a long prison sentence.

The law was first introduced in Washington State but the most influential was in 1994 in California. Under the Jones Law, strikes one and two must be for serious felonies, usually involving violence or a threat of violence, but strike three is for any felony at all. The sentence for such third conviction is a mandatory twenty-five years with 20% remission for good behaviour. Subsequently, forty states have introduced the law of lengthier sentences for repeat offences, with a majority of states having some form of the three strikes law. However, California is the only state where a twenty five-year sentence is automatic.

And here lies the problem for Holder. If offenders are prosecuted under federal law, their sentences might be more lenient should the Holder reforms be passed. However, if perpetrators are prosecuted by a state which has a three strikes law, the federal rules will not apply.

Why has “three strikes” enjoyed support? Public concerns about violent crime are high and the media emphasises violent crime in its reporting, as well as raising fears of victimisation. In California, the high profile of the child murder of Polly Klaas raised public outrage. The murder of Klaas was committed by a repeat offender. Had the three-strike law been in place, he would have been incapacitated and unable to commit the crime.  

Some years ago, the three-strike law was reviewed by the Supreme Court. In the case of Leandro Andrade, his third offence was for shoplifting. The US Appeals Court ruled the sentence unconstitutional because it breached the 8^th Amendment, in that the punishment was cruel and unusual. The Supreme Court disagreed. The 10^th Amendment and states rights were found to be the dominating factor.

America’s jails are populated by repeat drug offenders who have no crimes of violence on their sheets. They are also populated now with elderly men suffering from physical and mental health problems. Why are these circumstances helpful to American society?

I am also troubled by the obvious breach of separation of powers. The judiciary has been stripped of its sentencing rights. On a third strike conviction, a judge has no individual discretion in sentencing. How is this right or just?

For years, I have despaired at British politicians who emote how their policies are tough on crime, yet there is no credible evidence that punishment alone works. Why can’t these people understand that brain power is a far better option? The inequalities that lead to crime should not lead to long terms of incarceration for minor offences.

Any politician who can convince me that he will be smart on crime and truly smart on the causes of crime gets my vote.