President Bill Clinton supports the idea in the new Crime Bill, so does the Senate and so do more than 80 per cent of Americans, according to the polls. But criminologists say 'three strikes' is an overrated sham designed by politicians to make people feel that the government is fighting crime when, in fact, more violent criminals are being freed.
Worse than that, say the critics, the rule will create injustices. In Texas, for example, a man awaits trial on his third drunk-driving charge wondering if he faces life in jail. In Washington state a man who robbed an espresso cart vendor of dollars 337 ( pounds 227) - the man's third small-time robbery - is wondering if he will spend the rest of his life behind bars.
The Crime Bill debate over three strikes is far from over, and now moves to the House of Representatives. A more reasonable policy may yet prevail.
The trend in the debate is to make the three strikes rule apply only to those who have committed violent crimes, including rape and aggravated assault. At the same time criminologists are pushing for the release of 'third timers' if they are beyond the end of what the Attorney-General, Janet Reno, calls their normal 'crime-producing' life. That usually means they are older than 55.
One of the fiercest critics of three strikes is Jonathan Turley, professor of law at George Washington University. 'The three strikes idea has been around for a decade and has been notoriously bad for the states that have implemented it,' he says. 'It is not uncommon to have people put away for life simply for bad cheques'.
Professor Turley says the basic problem is twofold: a rise in the length of sentences and prison overcrowding. In the last 20 years sentences have increased. Some of them for violent crimes, and especially for drugs, are mandatory and there is no parole. Texas, for example, has adopted new sentencing rules that increased the average sentence from 6.5 years to 9.8 in the last decade. At the same time, drug cases across the nation have mushroomed: in 1980 one out of 15 federal prisoners were drug offenders. In 1990, that ratio was one in three.
The new sentencing laws have contributed to overcrowding in the prison system to the point where 42 of the 50 states are under court order to reduce their prison populations, either by releasing prisoners or by building new prisons. Many states cannot afford to build new jails and do not want to even if they could, feeling that more prisons are not the answer to the crime wave. In New York, for example, where three strikes is being urged by Governor Mario Cuomo, the prison population has grown more than 400 per cent since 1973, from 12,500 inmates to 64,500 today. Not even the governor would say New York is a safer state than it was 20 years ago simply because it has more prisons.
Releasing prisoners early has been tried, but at the wrong end of the prison population, according to Professor Turley. Instead of releasing older prisoners who have been in jail for many years and could be considered past their active criminal life, the tendency is to release first or second-time offenders, he says. Those released are younger, and more likely to commit a crime again.
The short-term solution to overcrowding, says Professor Turley, lies in a proper use of the statistics available on recidivism. The figures show that prisoners over 55 have a recidivism rate of between four and 10 per cent, compared with younger prisoners, especially those under 30, who have rates of between 70 and 90 per cent. In a prison population that will number about 2 million by the year 2,000, there will be 125,000 prisoners aged 55 and over.
In addition to criminologists, police officers also criticise the three strikes rule, saying it has some unintended side effects. Criminals facing their third strike who have nothing to lose tend to be more violent or desperate when police try to arrest them. In the courts, prosecutors find first and second-time offenders less willing to plea bargain: admit their crimes and accept long parole terms.