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Mandatory sentencing is so very overkill, it's hard to believe that we're actually doing it. It's like cleaning the bathroom by torching the house. And it shows such contempt for human variety. Who wants shoes from a store called "One Size Fits All"? What were we thinking?

It's not that one doesn't understand how people feel. People feel that too many twisted sleazebags weasel their way out of the correctional system entirely uncorrected. People want these vicious criminals boxed up and stored someplace where they can't get to us. People want to show any felon who might be considering the commission of a vicious crime that said crime will not go unpunished.

Well, first off — credit where it's due: Mandatory sentences like "Three Strikes and You're Out," which impose long sentences on three time losers, have had their intended effect — they've stiffened sentences for people who can't be trusted to roam about loose.

Also, Three Strikes advocates seem fair because they're so patient. They grant that a person might screw up once — find himself roaming around in someone's house one night carrying an armload of valuables and an unregistered gun when the police come barging in: Surprise! They are even willing to imagine that the same person, at some later date, might slip up again. Having had, perhaps, one too many malt liquors, that hapless ex-con might find himself biting some sommabitch's nose clean off — another surprise. But then, say the Three Strikes advocates, two surprises of that sort are enough. Pull a stunt like that again and we're taking you to the pound.

It seems reasonable to insist that incorrigibility not go unpunished. The problem is, according to a RAND report on the subject, California's Three Strikes law doesn't target the dangerous phases of criminals' careers. Serious criminals tend to peak in their 20s and 30s, whereas they don't get busted for their third felony until, crime-wise, they're has-beens — gearing up for a few decades of intensive care on the public's dime.(1)

More: 70% of felons facing Three Strikes mandatory minimums in California were busted for nonviolent felonies. One guy is facing life in prison for stealing a pizza! He is not, by all accounts, a nice man; but still: If that's justice, we're a broccoli calzone. Needless to say, insane cases such as these are choking courts with felons who have no reason to plea bargain. Street cops worry that two-time losers will take pot-shots at police rather than submit to arrest. All this for an estimated $5 bil per year — in California alone!

The RAND researchers found that if people who commit violent crimes served their first term in full (without parole) we would prevent as much violent crime as Three Strikes for half the cost. But, they stress, even this approach, unaccompanied by measures to prevent young kids from going bad, will break many state banks. Since every dollar you spend on early child care saves two in corrections, it's the best way to go. (See DRAWING THE LINE IN THE SANDBOX)

In New York State today, under the Rockefeller drug laws, mandatory sentences for relatively small amounts of drugs have filled jails with screw-ups, patsies, wives-in-denial, dealers' dupes and victims of police entrapment. Some are serving more time for a few grams of coke than people normally serve for murder. From coast to coast, small-time drug offenders are sapping public resources that could be spent on curing addiction and organizing communities to resist decay. For nonviolent crimes like these, many experts are convinced that cheaper alternatives to prison — close supervision, community service, victim restitution — could keep thousands of people from committing crimes at a fraction of the cost.(2)

While stricter early penalties are necessary to contain career criminals, giving judges latitude in sentencing lets them distinguish between someone who has made a mistake and someone who is a mistake; between fibbing about a stupid affair and perjury. It doesn't make them smart enough to always know the difference, but at least it doesn't guarantee that the system will be too mechanical, autocratic and crude to handle society's ambiguities wisely. Unless we insist that punishment fit both the crime and the criminal our national motto will be: If the shoe fits — it's an accident!

(1) Three Strikes Legislation: evaluation at U. MD
"A recent RAND assessment of California's three-strikes legislation points to its potential for reducing serious and violent crime, but at an estimated cost of about $5.5 billion over the next 25 years. A second long-term effect on costs will be the unprecedented growth of the elderly in prisons, which will contribute to higher costs because of their health needs (expected to be double or triple that of inmates from the general population)...most of them do not represent any threat to public safety..."

(2) "The National Institute of Justice should encourage the development of alternative sentencing policies that may achieve the same crime reduction benefits as three-strikes laws at considerably less cost...Other 'lifetime sanctions,' such as intensive supervision, community service, etc., should be pursued. However, research should accompany these programs to document their effect on public safety."
(Same source as above.)

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