Barbaric sentencing and moral panics are linked. “A moral panic is a widespread feeling of fear, often an irrational one, that some evil person or thing threatens the values, interests, or well-being of a community or society.”1 The events triggering the 1723 Black Acts, and the 1994 Three Strikes are only different in detail. Both induced panic amongst legislators.
In England there was a plausible threat from the previous monarchs, the Stuarts. The Stuarts were a threat to the government and eight years previously had promoted a rebellion. Less plausibly California reacted to a murder, by a recidivist, by introducing a barbaric sentencing regime. Both sets of legislators used sledgehammer legislation to counter these threats.2
England’s Black Acts, 1723
In 1723 England’s government passed the Black Acts. The Acts redefined many crimes and, in total, made 350 punishable by death. This was intended to be a deterrent. In a counter-intuitive outcome it led to crime escalating as criminals believed they, ‘…might as well be hung for a sheep as a lamb’.
Inflating the number of capital offences meant the punishment was devalued in its impact. It became commonplace and, because it was disproportionate, unjust. Poaching, a ‘traditional’ way of supplementing diet, became a capital offence. Poachers transformed a non-violent economic crime into one of extreme violence. They reasoned that, ‘murdering a game keeper was punishable by death and you can only be hung once’. Needless to relate the response of landowners also escalated.
California’s Proposition 184 Three Strikes, 1994
Shroud waving Californian politicians reacted to a brutal murder by a recidivist by asserting he shouldn’t have been free to murder. California’s politicians sold this mantra to the public. In Proposition 184 they achieved an overwhelming ‘victory’ for the automatic long-term incarceration of recidivists.3 Badly drafted legislation extended the definition of recidivism leading to ludicrous unforeseen outcomes. Far from heinous murderers getting 25 years to life many, “Of these people…as many as 80% will be non-violent offenders”.4 This perverted the intentions of voters who were voting on keeping violent recidivists ‘off the streets’.
The Three Strikes rubric meant criminals could get 25 years for stealing pizza.5 California’s problem is that Three Strikes focuses on, “The more extensive his criminal past is, the more likely he will get a Three Strikes sentence.”5 Juvenile crimes are taken into account in California. The racist policing of some neighbourhoods meant there’s a strong likelihood Three Strikes victims are young disadvantaged black men. Hence the possibility that a third offence of stealing a pizza would lead to a Three Strikes sentence.
An unforeseen consequence for 18th century England was that severe rural crime increased. Social relations in rural areas became hostile accelerating the move into industrial areas. The unforeseen consequence for California is financial. Incarceration costs $81,203 per prisoner per year.6,7 Remember ‘Three Strikes’ means a minimum of 25 years to life. That pizza thief will cost the taxpayers’ of California about $2,030,075 over 25 years.
Conclusion: Barbaric Sentences and Retribution
All sentences are retribution for actions which have been committed. Built into the concept is proportionality. In a recent book ‘Noise’, an example from Judge Frankel is quoted, “Two men, neither of them had a criminal record, were convicted for cashing counterfeit checks in the amounts of $58.40 and $35.20, respectively. The first man was sentenced to fifteen years, the second to 30 days.”(my emphasis) 8 This is an obnoxious example of disproportionate sentencing. Retribution is located in the notion that it should be, “proportionate to the harm caused – no more or less”.9
On this basis, sentencing a person because of a prediction is barbarism. This is especially the case in the Californian iteration of Three Strikes which makes no attempt to differentiate between heinous crimes and the rest. The English Black Acts were straight forward repression for short sighted economic reasons by aristocratic legislators.
Addendum: The Nazi Three Strikes sentencing policy
“A person convicted twice within five years to prison sentences of more than six months could be sentenced the third time to up to five years’ imprisonment, even if ‘the most recent crime is not subject to heavy penalty.’ The increased sentence could be tripled to fifteen years if the crime were punishable as a felony…”10 This is more lenient than the Californian version of Three Strikes.
2 Black Act 1723 – Wikipedia It was repealed a hundred years later in 1823. For the text of California’s Proposition 184, 1994, see California Proposition 184, Three Strikes Sentencing Initiative (1994) – Ballotpedia NB The legislation included crimes committed as a juvenile.
5 loc.cit For Black Americans experience of policing See https://marginalrevolution.com/marginalrevolution/2018/12/police-philadelphia-stealing-houses.html#comments
6 The costs of imprisonment in California. Legislative Analyst’s Office (ca.gov) For the UK see Costs per place and costs per prisoner (publishing.service.gov.uk) it costs £33,291 on average per year
7 As of 2nd July 2021 that translates into £58,843 per year pound $ exchange rates – Bing
8 Daniel Kahnman, Olivier Sibony and Cass R Sunstein Noise: a flaw in human judgment p14
9 Fondacaro, Mark R., and Megan J. O’Toole. “American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime.” New Criminal Law Review: An International and Interdisciplinary Journal, vol. 18, no. 4, 2015, pp. 477–509. JSTOR, http://www.jstor.org/stable/10.1525/nclr.2015.18.4.477. Accessed 5 July 2021. p481
10 Gotz Aly ‘Medicine against the useless’ In Gotz Aly, Peter Chroust and Christian Pross Cleansing the Fatherland: Nazi Medicine and Racial Hygiene p59