California's widely publicized "Three Strikes” legislation was the culmination of over a decade of "get tough on crime" legislation. The story surrounding Three Strikes is symptomatic of the excesses of our nation's crime prevention policy during the 1980s and 1990s.
Despite a threefold increase in the nation's prison population between 1980 and 1994, Most Americans felt more vulnerable to violent crime than they did a decade earlier. At a time when crime rates were declining modestly, politicians in several states seized on the fear of crime as a powerful political issue. For example, in a close gubernatorial race, Governor Pete Wilson's support of Three Strikes provides a case study of sound-bite electioneering substituting for careful analysis of frustratingly complex social and penological problems.
Two years of experience with Three Strikes in California has not quieted debate about the efficacy of the law. Proponents claim victory based on lower crime rates since its passage while opponents point to widely reported cases, involving minor third trike, leading to grossly disproportionate prison terms.
While a number of jurisdictions have recently adopted multiple offender statutes, California's is the most draconian. Section II of this article examines the key elements of California's Three Strikes legislation and the events that led to its adoption. Section III then considers a significant and rapid change in penological theory that has taken place in less than a decade. During the 1960s through the mid-1980s, legislatures, judges and commentators abandoned the rehabilitative ideal of the criminal justice system. A broad political coalition oversaw a return to retribution as the justification for punishment. Renewed interest in multiple offender statutes like the Three Strikes legislation signals another dramatic shift from retribution to incapacitation and, to a lesser degree, deterrence as the primary justifications for punishment.
Incapacitation and deterrence are supported by utilitarian arguments; as such, they rest on factual premises.........
