Striking Distance

Three strikes' folly


In the tough-on-crime wave of the '90s, more than 20 states passed "three strikes" legislation, which subjects repeat offenders to increasingly harsh penalties. Few enforced the law with as much zeal as California, which has slapped more than 40,000 residents with a strike or two. But thanks to perverse incentives built into the legislation, the law may encourage some of those offenders to commit more-violent crimes in the future.

California criminals receive their first strike by committing an "aggravating offense," which covers a broad range of crimes, including burglary and rape. After that first strike, any felonies count as second and third strikes, with the latter carrying three times the normal sentence. To determine how the law affects criminal behavior, Harvard economist Radha Iyengar compared criminals who had committed the same crimes in a different order. He concluded that people who commit the aggravating offense first, triggering the law, behave differently than those who commit the aggravating offense after a series of other crimes.

Iyengar found that the law had a significant deterrent effect, just as intended; criminals were less likely to reoffend after they triggered the law. But those who did reoffend, she found, were motivated to commit more-violent crimes. Criminals eligible for a third strike face the same punishment whether they simply rob a man or rob and kill him. Because the penalty for that third strike is equally severe whether a criminal commits a nonviolent or a violent crime, Iyengar hypothesizes, offenders opt for the latter.

Prosecutors might argue that the law's deterrent effect more than compensates for the violent crimes it encourages. But even if Californians are happy with the outcome, Nevadans may beg to differ. Iyengar found that criminals with prior convictions are more likely to cross state boundaries before they strike again.