Baseball and Sentencing Reform: Not the Same!

Kerry Howley | March 20, 2008

Over at Slate, Ray Fisman breaks down an NBER study on three-strikes laws:

[R]ut yourself in the shoes of a two-strike criminal. The prospect of 25 years behind bars for a third offense is likely to give even a hardened criminal pause before he or she crosses the street against the lights. So we'd expect two-strike felons to commit fewer crimes. But suppose you've already decided to break the law—maybe you need to make a quick buck. Are you going to lift a few golf clubs from the local pro shop? Or are you going to hold up a bank? The potential haul from a bank robbery is obviously much greater, and the penalty is the same: Bank robbery will get you decades in the slammer, but if it's your third offense, so will shoplifting.

Three-strike-eligible criminals who actually do get arrested for a third offense commit more serious crimes. Burglars, for example, become robbers—these are both offenses that involve stealing, but robbery has the added element of force. Similarly, while thefts decline overall, assaults during thefts go up under three strikes, suggesting that an increasing number of thieves may, in desperation, be trying to muscle their way out of a third arrest. In general, arrests of three-strike-eligible felons are 20 percent more likely to be violent crimes (relative to no-strike criminals).

It's tempting to invoke the law of unintended consequences in thinking about what was perhaps a well-intentioned but flawed piece of legislation. But these consequences could have been entirely anticipated if legislators recognized that criminals, like all of us, often make decisions by rationally weighing the costs and benefits of their actions.

Not sure about that last bit--the law of unintended consequences, to the extent that it counts as a "law" at all, is not suspended just because legislators are too slow and invested in tough-on-crime talking points to consider said consequences. It's also worth remembering that prisons are full of people who wasted that last strike on pathetic little victimless crimes and were still slapped with draconian sentences. Matt Welch checked in with California's three-strikes law a few years back:

Pam Martinez...was only recently given clemency from a 25-year sentence for stealing a $30 toolbox. About 4,300 of the 7,000 third-strikers in state prisons were sent there for nonviolent felonies. Of those, The Orange County Register reports, there are "357 people convicted of petty theft, 235 of vehicle theft, 69 of forgery and 678 of drug possession."

Comments

|3.20.08 @ 11:36AM|#

Getting rid of the death penalty and imposing a three strikes rule makes the streets more not less dangerous. If I am a criminal and I know the next time I go to jail will be for life and I am in no danger of ever getting the death penalty, what incentive do I have to leave any witnesses? None. Three strikes and the absense of a death penalty also makes controling prison violence much more difficult. We have a population of prisoners that basically can't be punished anymore. We try to over come this by creating things like supermax prisons that end up being more inhumane than the death penalty. I think just killing a person is a lot less immoral or at least no less immoral than locking him up in a cell 23 hours a day with no human contact. Yet, that is the only option we have left ourselves after we get rid of the death penalty and impose three strike rules.

Fluffy|3.20.08 @ 11:40AM|#

Be careful with the data here.

It may appear that three-strikes criminals commit more serious crimes because the less serious ones are being pled down to misdemeanors by prosecutor's offices. There are some prosecutors that want to give you a third strike for shoplifting, but there are also many who don't.

So the data will make it appear that third-strike felonies are more serious because the less serious ones get whitewashed out of the record.

Episiarch|3.20.08 @ 11:42AM|#

Any minimum sentencing laws or three strikes laws remove from the judge the ability to look at each case on situational basis. This was on purpose, of course--to stop "liberal" judges from letting criminals off lightly (in the opinion of some).

And so we get people getting 25 years for shoplifting.

Again, we see our lawmakers and justice system deciding that "it is better that many innocent (or not guilty of serious crime) go to jail than one guilty person go free (or do less time)".

tarran|3.20.08 @ 11:54AM|#

I feel very sorry for the poor sods who are in effect political prisoners because they were picked up as part of the war on some drugs or, if you prefer, the war to keep black men from thinking that they are just as good as a white man.

|3.20.08 @ 12:00PM|#

Glad to see that tomorrow's American Victor Hugo won't have to resort to pure fiction to write the next "Les Misérables." Assuming, of course, one of them can escape, become a respected member of society through convolutions of RealID, and then participate in a revolution/riot in DC (maybe NYC/LA would work).

All the unbelievable parts of the novel can just be made up by the author for dramatic effect. That's to be expected.

Christopher Monnier|3.20.08 @ 12:01PM|#

In reference to the title of the post, yeah, why should we apply an arbitrary rule from a sport to the non-arbitrary phenomenon of criminal behavior? What's so magical about the number three? Is it only because the term for an unhit pitch (strike) happens to also be a violent-sounding term, so therefore let's apply the "three strikes" rule to crime?

|3.20.08 @ 12:08PM|#

Any minimum sentencing laws or three strikes laws remove from the judge the ability to look at each case on situational basis. This was on purpose, of course--to stop "liberal" judges from letting criminals off lightly (in the opinion of some).

It's swatting flies with a sledge hammer. You may get the fly, but damn, look at the house.

|3.20.08 @ 12:11PM|#

Christopher Monnier -

"Three strikes and your out" makes a very good sound bite. What more do you need when determining policy?

|3.20.08 @ 12:23PM|#

Judges are the root of this evil. Judges failed the public in the 1970s and 1980s by not locking up legitimately dangerous people. Had there not been a crime wave in the 70s and 80s and had numerous judges made the news by handing out rediculously light senteneces to dangerous people, there never would have been political support for these kinds of laws. Yes, it is using a sledge hammer sollution. But the reason why the sollution was ever adopted was because the public lost its trust and confidence in judges to do the right thing.

|3.20.08 @ 1:07PM|#

Three is ridiculous, seven should be used. No one's coming up with six. Who works out in six minutes. You won't even get your heart going, not even a hamster on a wheel. 7's the key number here. Think about it. 7-Elevens. 7 doors. 7, man, that's the number. 7 chipmunks twirlin' on a branch, eatin' lots of sunflowers on my uncle's ranch. You know that old children's tale from the sea. It's like you're dreamin' about Gorgonzola cheese when it's clearly Brie time, baby. Step into my office. ... 'Cause you're fuckin' fired!

kinnath|3.20.08 @ 1:57PM|#

Judges are the root of this evil.

This is one flavor of a problem that exists whenever public officials have discretion to make decisions and impose penalties.

We give officials a certain amount of discretion to look at the facts, make an informed decision, then impose a penalty for some bad behavior. It is inevitable that mistakes will be made since the decision-maker is human, and there will be some bad actors that abuse that discretion.

So the next step is to take discretion away and create schedules of mandatory punishments for categories of bad behavior. It is inevitable that these schedules will either result in punishments are either too harsh because the schedules don't allow for mitigating circumstances or too lenient because no one forsaw a particular set of aggravating circumstances.

I call this environment "institutionalized stupidity". It results in zero-tolerance policies in schools, mandatory sentencing guidelines, and many other unworkable systems of rendering decisions.

It is always easier to hand-cuff all public officials than to actually eliminate some officials that make bad decision through malice or incompetence.

|3.20.08 @ 2:00PM|#

"It is always easier to hand-cuff all public officials than to actually eliminate some officials that make bad decision through malice or incompetence."


True. The fact remains that the old system failed to protect the public and produced the crime wave of the 70s and 80s and we are now stuck with this lousy system. I would take the old system back and think this is an overreaction but I in no small part blame leanient judges for creating this kind of public backlash.

kinnath|3.20.08 @ 2:08PM|#

The fact remains that the old system failed to protect the public and produced the crime wave of the 70s and 80s and we are now stuck with this lousy system.

Some would argue that demographics was a key element. Those baby-boomers were teens and twenty-somethings which is the peak age for law-breaking. Then the boomers got older and crime went down.

However, there clearly was a "movement" within the judiciary to impose lower punishments that worsened the situation, resulting in a public backlash, resulting in political "oh shit -- we have to do something", resulting in instituationalized stupidity.

At some point the consequences of this stupidity becomes apparent, and the "oh shit -- we have to do something" starts going the other way.

|3.20.08 @ 2:22PM|#

John's right about how this situation was a reaction to the old system, and I agree with Fluffy about the statistical aspect. Here's one more:

In general, arrests of three-strike-eligible felons are 20 percent more likely to be violent crimes (relative to no-strike criminals).

So criminals with longer records are more likely to commit violent crimes than criminals with shorter records? Is that surprising? It doesn't sound like it has anything to do with three strikes laws.

Robert|3.20.08 @ 5:42PM|#

What if you could keep fouling balls off?

Russ 2000|3.20.08 @ 6:03PM|#

First off, the baseball rule used to be seven or eight strikes and you're out; it was shortened for entertainment purposes, not punitive purposes.

Second, even if I strike out, I get to bat again the next time my spot comes up.

A better analogy would be a 2-minute minor or a 5-minute major plus a game misconduct for instigating. But we don't wanna base our laws on a fuckin' Canadian game.

Of course, baseball is basically British in origin - cricket and rounders, so we shouldn't base law on that either.

The American sport is basketball. And that's SIX fouls and you're out. That sounds much better.