Crimes which provoke outrage often lead to demands for draconian punishments from the public. This has been true down the ages. For example 18^th century England had an extreme criminal code, more draconian and less humane than even the most rabid Californian demanded in Proposition 184*. Proposition 184 was designed to inflict draconian punishments on those committing three felonies hence the nickname ‘Three strikes and you’re out’. The ‘out’ in this case is life imprisonment: the drip-drip of decades of imprisonment. Mandatory disproportional sentences may well be popular with the public but they mandate judicial barbarity. And they are expensive and useless which is the ultimate no-no amongst tax-hating Americans.

Recidivists committing heinous crimes are rightly feared and hated. Public anger in California led to a campaign for the permanent removal of such people from the streets: Proposition 184 had overwhelming support (71.8%). The proposition led to the outcome that any felony counted towards the three ‘strikes’. The table beneath illustrates the escalating punishments embedded in the Proposition**

This is a curious mixture of felonies which rate as qualifying; equating murder, intent to rob and burglary is manifestly disproportionate. Three qualifying burglaries have a mandated minimum sentence of 20 years before there is any possibility of parole. In 1996 California’s courts imposed 1700 ‘Three strikes’ sentences because of this mandatory policy. California’s judicial system, since 2010 , has undermined the ‘Three strikes’ sentencing policy by reclassifying felonies as misdemeanours***.

California has 3,000 prisoners serving a ‘Three strikes’ sentence. By European standards this is an extraordinary figure. Unsurprisingly California’s jails are full to overflowing. The Supreme Court ordered California to reduce the prison population in May 2011*** as the conditions prevailing were ‘cruel and unusual’ which breaches the constitutional rights of prisoners. Apart from creating barbaric jails they have created an elderly prison population suffering the normal illnesses associated with old age. (California’s prisons are big consumers of medical treatments (socialised medicine!) for the very worst of California’s society.)

An unintended consequence has been the development of a prison ‘industry’. Vested interests, prison staff, lawyers, prison facilities etc., all need lots of prisoners to keep the system viable. The justice system itself has been compromised****.

Any knowledge of history by Californian voters in 1994 would have urged caution in voting for Proposition 184. A criminal code which is pre-emptively disproportionate is barbaric and is rightly condemned by the international community. Such codes are also ineffective, hugely expensive and create vested interests filling prisons as profits/salaries depend on long sentences. In brief, disproportionate sentences are corrosive of society and a travesty of democracy.

* English history offers an example of where draconian punishments failed to stem criminal behaviour: there were 220 offences punishable by death in the 18^th century. These sentences appeared to cause crime and 19^th Century reforms reduced this figure to five capital offences.
**Eric Helland and Alexander Tabarrok Does Three Strikes Deter? A Non-Parametic Estimation

***Malaine Freedom and Craig Menchin Realignment’s Impact on the Public Defender and District Attorney 2012
****American Civil Liberties Union 29^th January 2015 see also http://marginalrevolution.com/marginalrevolution/2015/09/what-was-gary-beckers-biggest-mistake.html for a different take on this theme

(Chris)