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Has the Three-Strikes Law Finally Struck Out?

L.A. has become the first municipality to try to strike down a policy that’s done very little other than destroy the lives of Black and brown families

In 1994, a stunning 72 percent of California voters passed a law that deemed people who committed three serious crimes would be put away in prison for 25 years to life.

Just a year prior, a 12-year-old named Polly Klass had been abducted and murdered by a felon named Richard Allen Davis, who had just left prison on parole. The sensational news story surely weighed heavy on the electorate; it was no coincidence that the supporters of the new “three-strikes” rule claimed it would keep rapists and murderers off the street — for good. 

California wasn’t the first state to pass a “three-strikes” policy, but its interpretation was perhaps the most severe. And in such a densely populated state, it didn’t take long for the consequences to become apparent. People who hadn’t committed a violent crime received decades-long sentences for drug and burglary charges, simply because they were repeat offenders. By 2012, nearly a third of all inmates (more than 3,000 people) who were serving life sentences in California were in for nonviolent felonies. 

A sea change is unfolding in L.A., however. Since being elected as district attorney last year, George Gascón has made sweeping changes to his office’s agenda, no longer pursuing the death penalty and ending cash bail on many charges. But the heart and soul of his approach is the battle to abolish the state’s three-strike law and other sentence enhancements

Executing that change, though, has proven Sisyphean: Gascón’s own union is suing him, a judge last month rejected his three-strike reforms and now he’s the target of a citizen recall campaign (one that’s supported by the county sheriff, just to make it messier). 

Jody Armour, a longtime lawyer and criminal justice expert, isn’t too surprised. As he frames it, this an existential fight. “One that will make a defining statement about society’s willingness to rehabilitate instead of punish,” as he puts it. For Armour, Gascón’s battle is the newest conflict in a long arc of three strikes, a law that he says has destroyed countless men over multiple generations, leaving behind broken homes and more systemic poverty. The impact of this law has been disproportionate on Black and brown communities, and in hindsight, it appears to have been intended that way — even if there’s nothing explicitly racist about the text. 

Last week, Armour and I spoke about how we got here, the countless families who have been disenfranchised and why all eyes are on the biggest district attorney’s office in the country right now. 

On paper, what exactly is a three-strike policy? 

This legislation is meant to get at recidivism — repeat offenders — and impose a much greater penalty for being a repeat offender than for someone else without prior convictions who committed the same crime. So someone who is on their first offense could be looking at, say, a one- or two-year sentence, but someone who commits the same crime as their third offense would literally receive as much as 25 years to life

And it seems strange to think of now, but California was one of the first states to look at this type of policy, which has spread across the country, and implement it. 

Does any particular case stick out as an egregious example of this?

The former Los Angeles D.A. Jackie Lacey infamously prosecuted an 18-year-old Black boy earlier in her career, and I still remember when it happened. It was an 18-year-old who took a cell phone from the back seat of an unoccupied car in a parking lot, back in 1997, not long after the three-strikes law took effect. He had two prior incidents of purse-snatching from when he was 16. And for taking that cell phone from that unoccupied car as his third incident, Lacey and the prosecutors were able to secure 25 years to life. 

You have to remember, this policy was a creature of a time in this country when there was hysteria about crime. Even though the 1990s and 2000s saw a crime rate that was falling, including homicides and violent crimes, many laws were being enacted as a result of politicians fear-mongering and winding people up into a state of anxiety about crime rising. You hear it in Hillary Clinton’s comments about young “superpredators” that came back to haunt her in the 2016 election. But frankly, as critical as I am of that, Hillary wasn’t the anomaly. There were a lot of people, including Black people, saying that about Black youth in the 1990s. 

Research suggests the law did nothing, statistically, to make us safer. So why does this law, and the narrative to support it, persist?

Two things come to mind: One, when you survey Americans, they consistently grossly overestimate how much crime is in their community. They’ll give estimates that are wildly off. So there’s a disconnect between the social perception many Americans have of crime, and the reality of it. 

As I said, through the 1990s and 2000s, crime was going way down in lots of places, and yet, incarceration rates were going way up. You would expect that if crime’s going down, there would be some leveling incarceration rates. But politicians realized that crime, and being tough on it, would always move voters. The 1994 crime bill that Joe Biden was the architect of, that was a result of the hysteria that came after Willie Horton assaulted a woman while on furlough from prison. After that, and its impact on the 1988 election, politicians for both parties started running more and more tough-on-crime bills. Even the journalism fell in line behind that mindset. 

So two, the problem was that a lot of people found a lot of social currency in blaming and punishing Black people. That’s partly what the protests in 2020 were trying to shed light on — that being “tough on crime” was, and is, a political dog whistle for being tough on Black people. And this was a bipartisan whistle. 

The most disturbing element of the legacy of three-strikes might just be how many men and women it disenfranchised. How would you describe the impact of this on Black and brown families?

It’s been devastating. It has toppled two generations of Black and brown folk. We think of family separation as something that happened during the Trump administration at the border, when in reality, not only has that been going on under Obama and other presidents, but it’s been happening in the heartland of America for decades now. 

Many, many, many times, when we’ve thrown a Black man in a cell, we’ve not only locked them in as individuals, we’ve locked up their families, too. We’ve been confining their families to a kind of vicarious suffering and trauma that they experience, knowing their loved one is in a cage for a crime that simply doesn’t seem worth it. 

When my own dad was given 22 to 55 years for possession and sale of marijuana, we went from a middle-class, almost Cosby-kid existence, if you will, to… crumbs, roaches and rats almost overnight. To this day, that trauma is a routine part of the experience in communities that are affected by disproportionate incarceration. This is the hidden cost of mass incarceration, and so many people don’t count those costs when they talk up big plans to ratchet up punishment and create new sentence enhancements. 

It’s relatively easy for people to see the negative costs of criminal justice policy changes, but the stories about the positive outcomes often go unheard. Let’s go back to Willie Horton — Horton got out on prison furlough and did something heinous, atrocious, monstrous while out in the world. But what about the 99 percent of people on furlough who did nothing wrong? Are we going to have a knee-jerk reaction and punish people with new policies every time something goes awry?

We don’t hear enough stories about how criminal justice reform reunited a dad with his son, or a son with his mother, or brought back an uncle who kept the family together. Change is going to require a revolution in consciousness by a lot of people. It’s a move from retribution, retaliation and revenge as their guiding conception of justice toward restoration, rehabilitation and redemption. They’re very different conceptions of justice, and history has proven that a lot of people embrace the retribution, retaliation and revenge conception of justice when it comes to Black people… and not so much when it comes to white people.

People are finally understanding mass incarceration not as a policy and crime issue, but a civil rights issue. Crime policy can’t control everything — so can we come up with a system that’s fair and just and minimizes the punitive nature of our response to broad social problems? Are we going to invest in the front end and increase our collective safety by addressing conditions like chronic poverty that give rise to crime? Or will we just keep throwing people in prison and breaking up families for it? 

Why does this shift in California matter to the rest of the country? 

As I always tell my classes, California is a bellwether state when it comes to legal matters. Other jurisdictions look to California to see how experiments unfold, and if they work, those approaches become hugely influential in other parts of the country. 

So it’s huge for the largest D.A. office in the nation, with more than 1,200 deputies and a history of tough-on-crime policies, to shift to an agenda like Gascón’s. It just shows how much the Overton window has shifted in the last five to 10 years. Last year, the voters chose a truly progressive D.A. Gascón isn’t perfect, and he still has progressive detractors, but it cannot be denied that he walked into the role and made profound changes. So much so that his own rank-and-file attorneys turned on him and brought legal action in court. They thought he went too far, but he’s trying to make good on campaign promises — namely, a more humane form of blame and punishment. 

But it’s not a surprise that he’s running into resistance from old-guard prosecutors and judges who were former prosecutors. What Gascón’s change is basically saying to them is, “You were committed to the wrong values, and it was a racist and morally obtuse approach.” 

And so, they’re going to resist. It’s real, radical social change they’re confronting. Hopefully, in time, people will also realize that there are a lot of things that don’t need to be criminalized at all. 

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