Blogger Patterico (a DA in LA County and another conservative for those of you who think I only read liberal tomes) has an interesting discussion going on about a proposed amendment to California's Strike law. There is an initiative that will probably appear on California's November ballot to reform 3 strikes law to only apply to serious or violent felonies. Right now, if you have a conviction for one prior enumerated offense (I hesitate to say serious or violent offense, even though that is the title given to them, since so many of them were just incredibly minor bullshit cases that pled out for next to no time in an era before the ramifications for a conviction to these offenses became so severe), your sentence on the present felony (even if as minor as possession trace amounts of drugs or petty theft) is doubled and you have to serve 80% of your sentence before being eligible for parole. If you have 2 prior enumerated offenses, your sentence on the present case is life in prison, with no parole eligibility for 25 years.

I have long held that these laws, when broadly applied as in California, are absurd. My tongue in cheek response to this is to make everything a strike, including misdemeanors, and just stick 10 million people in prison instead. I posted a comment saying that, but some people weren't used to my sense of humor (not well conveyed in print, of course), and took humbrage to it.

My point is this: in older days (like 200 years ago), all felonies were punishable by death. At some point, society determined to make punishment a graduated affair (except in countries like Iran and Saudi Arabia, where petty thieves can have their hands chopped off, or homosexuals are beheaded). This continued for a couple of centuries, until people like Richard Nixon realized that you would not lose many elections by calling for longer punishments for crime. People don't realize this, but Martha Stewart, who people are talking about getting a year or two in prison, is actually looking at maximum of 20 or more years. Everyone says this will not happen, but this is how the crime is punished.

Now Martha Stewart is smart, and she figured early on that the penalty for her committing the crime she did was worth the risk of doing it. What if it was punished by death, or she knew she would get 25 years for doing it? There is a very good chance she wouldn't have done it. Do we assume that no one would ever do it again? Of course not, people motivated by greed or desperation (in her case, greed) will always resort to crimes of opportunity. The question is what would've happened if she did the crime and was looking at death instead? You can bet that in these run of the mill securities crimes cases, witnesses would suddenly start disappearing, murdered. When the police come in with search warrants to these cases, they may be met with guns.

This has certainly happened in California with 3 strikes. Despite a general, nationwide fall in crime (which has included California), police officers are facing even more danger all the time. Did you notice when high speed chases became so common in Los Angeles about 10 years ago, well that's when 3 strikes started. LAPD had gone many years without having an officer murdered in the line of duty. It has happened numerous times in the last decade, most recently with the killing of Officer Lizarraga in South Central last year. Why does this stuff happen so much here in California? I believe that part of it is related to 3 strikes. If people think that they are facing life in prison, they will either not commit any crimes, or make sure they get away with it if they do.

This means that perhaps you dissuade 80% of the population from committing crimes, but the 20% that commits crime will now commit ever more violent crimes. They will ensure a lack of witnesses, that they don't get caught, and things of the like. Ratchet it up even higher, and you'll stop even more people from committing crimes, but those who continue will become even more hardcore.

Imagine that speeding was punishable by life in prison. Just about everyone would stop speeding (a good thing), but those that continue speeding would be inclined to ensure they do not spend their life in prison, so they would make everything more dangerous for everyone else - witnesses, fellow drivers, police, pedestrians, etc.... Afterall, you give them no incentive not to react this way - what are going to do if they kill cops, sentence them to more life sentences? Kill them? They already accept death as a distinct possibility. Torture them? Pluck out their fingernails? Draw and quarter or impale them? Let's be reasonable, the way you discourage greater crimes is to graduate your punishment based on the crime, and not to respond with a blunt instrument like life in prison for ever more offenses.