Columns

That 'three strikes you're out' law

BY JASON MCKAY

Sunday, September 16, 2018

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The 'three strikes you're out' law comes from the baseball metaphor relating to when a pitcher pitches three straight balls at the player batting, and he is unable to hit any.

The use in law speaks to offenders in particular states in the United States of America (USA) who are convicted of three offences and get a sentence of life imprisonment as a result of the third conviction.

This law exists in 28 states, each having its own variety and flavour, but essentially it says the same or similar things. An example is that in some states one of the offences has to be a felony. However, a felony in many states, California etc, can be for stealing of a set of golf clubs or an iPhone, as long as the value surpasses US$500. There are several states that require one of the crimes to be violent, whilst for others you could go to prison for life for three cases of shoplifting.

I am both a critic and supporter of the principles that created a law like this, and I am an unapologetic supporter of anything that removes those who prey on society!

However, the decision to imprison a person for life and to also make the decision to commit the resources to feed, house and take care of him is not one to be taken lightly.

First and foremost, life imprisonment is reserved for that group of persons who represent a threat to our safety by virtue of actions they have already taken, not perceived actions that they may take. A shoplifter or a person who destroys property is not necessarily a candidate to become violent or trade and possess guns, or even to sell narcotics. He may just be a person who is going through a phase — 'damn thief'!

This differs if he is a house — breaker or even a hold-up man, because those activities could cause violence.

The creators of this legislation that is growing in popularity daily believe they are being tough on crime and, like the 'broken window theory', are assuming that the vandal or shoplifter will likely kill or develop into a killer, so catch him early and get rid of him because, as they put it, he is a 'habitual offender'.

This theory is flawed and like the legislation that was enacted in the development of the crack laws in the war against crack, it uses a philosophy of imprisoning to ensure the prevention of an activity (ie the use or sale of crack).

The danger is that like the crack wars, they face the danger of impacting large sectors of poor communities mostly consists of minorities, based on the imbalance in the distribution of poverty in that country. Yes, that's right, not the distribution of wealth, the distribution of poverty.

I say this because people are kept poor not by being unable to gain wealth, but by the distribution of specific things such as inferior schools, project housing, and convenient police activity that encourages organised crime and the creation of a culture of youth criminals.

This law, however, unlike the crack war legislation, is likely to put persons in prison who have not yet demonstrated that they are a risk to society in any real way. So although both unfairly impact minorities, one is impacting those who have decided to engage in activities that could harm society and the other just may, but haven't yet.

That, simply, is not good enough. Life imprisonment is for persons who rob, break into houses, kill, rape, sell hard drugs, traffic in persons, or are found in possession of illegal firearms. Hmm… did I miss any offence? Oh yes! Kidnapping or extorting citizens… all of these — but not shoplifting, malicious destruction of property, or any act that does not demonstrate a decision to prey on society with violence or threat of violence.

Well, as I always ask, 'could it work here'? Well, firstly, not for committing three minor offences. This is not Nazi Germany or any fascist state aiming to cleanse society of persons who may represent a future risk.

In our culture, we would reserve 'straight prison' for crimes that are violent or could cause violence. We could do it for more serious crimes as per the list I mentioned earlier, but we don't need three convictions. One offence is fine for us to lose them in our prison system for a lifetime.

We would, of course, need bigger prisons, but this would have the counter-effect of a smaller police force and smaller hospitals, as it is criminals contributing to a need for these institutions at the size they are currently.

However, no matter how bad our crime becomes, let us not take decisions to punish with life imprisonment persons with the potential to be a threat to our safety. Lord knows we wouldn't want to use up a 'mattrass' or slabs of concrete that could be used to provide a bed for the tens of thousands who have already shown us what they are willing to do to us.

Jason McKay is a criminologist. Feedback: jasonmckay@gmail.com

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