Opinion on 3 Strikes and out law in California... other states are paying attention to this

Is state's three-strikes law really the waste that experts claim it is?

Brik McDill

Recent articles and editorials in prominent newspapers argue that California's three-strikes law is a waste of taxpayers' money and a missed opportunity to rehabilitate a criminal wrongdoer. These opinion pieces are rightly based on the annual cost of an inmate's incarceration multiplied by the number of years the inmate is to be incarcerated. The strict economic argument is straightforward, and the math of it is surely pause for concern. Missing from the experts' cost analysis, however, is an important consideration: namely the incalculable costs of the direct and indirect damage the criminals have done to society while they are out collecting their strikes. Through a series of deliberately planned and executed criminal adventures, the third-striker has done to earn his 25-to-life sentence, the hidden costs to society (outside the cost of lengthy incarceration) are typically not factored into the balance sheets.

By the time a criminal is first arrested, typically he has committed scores of unapprehended criminal acts. Moreover, before the first time a criminal is incarcerated he has been given a half-dozen second chances to stop his criminal activities, and has not. To find oneself facing a third incarceration, one has consciously, knowingly, and intentionally molded himself into a career criminal, has spurned a dozen second chances, and has committed scores of unapprehended crimes around convictions No. 1, No. 2 and No. 3. And he stands now before a judge facing a third incarceration.
Consider how much law enforcement, public safety, administration-of-justice time and money this one career criminal has burned his way through getting to his final incarceration. And then consider how much of this time and money will not be burned any more trying to deal with this criminal tucked away where he can do no more harm. Yes, it's expensive to incarcerate a thrice-convicted felon for life. But how much more expensive will it be to keep chasing, catching, arresting, prosecuting (often concurrently defending), trying, convicting and then sentencing him for crime after crime. No one thinks about these hidden costs. Add to those the costs to the victims, businesses, indemnity companies, and all those other people and entities directly (and indirectly) affected by this one criminal.

Experts also leave off the ledger that career criminals rarely change. Can they? Yes. Can rehabilitation work? Again, yes. But only when the criminal sees the need. Career offenders have deliberately chosen their lives of crime, they know the risks, they've had no shortage of second chances, they've been incarcerated twice before, and they've been counseled and warned by everyone who cares that the next strike is it.

They know the drill. Yet they gamble it all, proceed criminally, and get that third strike.

What to do? No one really knows. Not yet, anyway. But we do know that you can't help someone who doesn't want your help, and doesn't want to change.

Now let's turn the three-strikes question around: If you think the cost of incarcerating a third-striker is too great, let's consider the costs of not incarcerating him. Year after year, as described above, through state, county and city taxes, we foot the ever-mounting front- and back-end costs of his crime: law enforcement, parole agents and probation officers, crime prevention and public safety programs and activities, county jails and state prisons, the prosecutor who brings the case, the public defender who defends the criminal, pretrial proceedings, the trial itself, the judge and jury, post-trial business and the multiple thousands of unseen and unsung administrative others throughout the state who support all these efforts. How does one begin to calculate these costs?

In the broader view, $47,000 per year to incarcerate the career criminal might be the better deal, at least until we've found what reliably works in terms of criminal rehabilitation.

Brik McDill, Ph.D., of Tehachapi has spent 40 years in private practice in clinical and forensic psychology.