A Get-Tough Policy That Failed

Remember little Polly Klaas? She was the 12-year-old Petaluma, Calif., girl whisked from a slumber party in 1993 and found murdered two months later. Her father Marc, horrified to learn that her killer was on parole and had attacked children in the past, called for laws making parole less common. He joined with others backing a "three strikes and you're out" law for California--no parole, ever, for those convicted of three felonies. Klaas went on TV, got in the papers, met the President--all within weeks after his daughter's body was found.

Then he began studying how the three-strikes law would actually work. He noticed that a nonviolent crime--burglary, for instance--could count as a third strike. "That meant you could get life for breaking into someone's garage and stealing a stereo," he says. "I've had my stereo stolen, and I've had my daughter stolen. I believe I know the difference."

Klaas began speaking against three strikes. But his daughter had already become a symbol for the crackdown on crime, and California's legislature passed the three-strikes law. It now seems politically untouchable, despite horror stories like the one about a Los Angeles 27-year-old who got 25 years to life for stealing pizza. Last year two state senators tried to limit the measure to violent crimes, but the bill didn't make it out of committee. Governor Pete Wilson vetoed a bill simply to study the effects of the law.

Wilson probably knew what the study would conclude: while three-strikes laws sound great to the public, they aren't working. A growing number of states and private groups have scrutinized these and other "mandatory-minimum laws," the generic name for statutes forcing judges to impose designated terms. The studies are finding that the laws cost enormous amounts of money, largely to lock up such nonviolent folks as teenage drug couriers, dope-starved addicts and unfortunate offenders like the Iowa man who got 10 years for stealing $30 worth of steaks from a grocery store and then struggling with a store clerk who tackled him (the struggle made it a felony).

How much are we spending? Put it this way: mandatory minimums are the reason so many prisons are booming in otherwise impoverished rural counties across America. The U.S. inmate population has more than doubled (to nearly 2 million) since the mid-'80s, when mandatory sentencing became the hot new intoxicant for politicians. New York (the first state to enact mandatory minimums) has sloshed $600 million into prison construction since 1988; not coincidentally, in the same period it has sliced $700 million from higher education. Americans will have to spend even more in the future to house and treat all the aging inmates. California has already filled its 114,000 prison beds, and double-bunks 46,000 additional inmates.

More important, mandatory minimums for nonviolent (and arguably victimless) drug crimes insult justice. Most mandatory sentences were designed as weapons in the drug war, with an awful consequence: we now live in a country where it's common to get a longer sentence for selling a neighbor a joint than for, say, sexually abusing her. (According to a 1997 federal report, those convicted of drug trafficking have served an average of almost seven years, nearly a year longer than those convicted of sexual abuse.) Several new books, including Michael Massing's The Fix, point out that the tough-on-drugs policies of the past 15 years haven't had much impact on the heart of the drug problem, abuse by long-term urban addicts. Even the usually hard-line drug czar Barry McCaffrey has written that "we can't incarcerate our way out of the drug problem." He has urged Congress to reduce mandatory minimums for crack, which are currently 100 times as heavy as those for powdered coke and impact most on minority youth.

This injustice is most palpable on city streets. In places like New York there are more black and Hispanic kids in prison than in college. That injustice may have played a role in the fate of Derrick Smith, a New York City youth who in October faced a sentence of 15 years to life for selling crack. At the sentence hearing a distraught Smith told the judge, "I'm only 19. This is terrible." He then hurled himself out of a courtroom window and fell 16 stories to his death. "He didn't kill anyone; he didn't rob anyone," says his mother. "This happened because we are black and poor."

Worst of all, mandatory minimums have done little to solve the problems for which they were crafted. Casual drug use has declined since the 1970s, but the size of the addict population has remained stable. And even conservative criminologists concede that demographics (i.e., fewer young men) and better policing are more responsible for the dropping crime rate than criminals' fear of mandatory minimums. John DiIulio Jr., the Princeton professor who wrote a 1994 defense of mandatory sentencing for the Wall Street Journal with the charming headline LET 'EM ROT, now opposes mandatory minimums for drug crimes. He points out that more and more young, nonviolent, first-time offenders are being incarcerated--"and they won't find suitable role models in prison."