Question

One of the assumptions underpinning economics is that rational, self-interested people respond to positive and negative incentives to make decisions. Take your everyday lives. You have a negative incentive to speed in your car — costly ticket and higher cost insurance — but a positive incentive (reward) for staying under the speed limit.

Suppose Maryland implemented a “three strikes and you’re out” law for extreme forms of polluting the Chesapeake Bay. A defendant with prior convictions for two offenses would face a mandatory life sentence for conviction of a third offense. Suppose someone is in the act of committing a third offense, and a police officer tries to make an arrest.

What effect does the “three strikes and you’re out” law have on the marginal cost to the person of attempting to escape? What is this person likely to do, and why?

Answer 1

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According to the pundits, the polls, and the politicians, violent crime is now America's number one problem. If the problem were properly defined and the lessons of past efforts were fully absorbed, this could be an opportunity to set national crime policy on a positive course. Instead, it is a dangerous moment. Intuition is driving the country toward desperate and ineffectual responses that will drive up prison costs, divert tax dollars from other vital purposes, and leave the public as insecure and dissatisfied as ever.

The pressures pushing federal and state politicians to vie for the distinction of being toughest on crime do not come only from apprehensive voters and the tabloid press. Some of the leading organs of elite opinion, notably the Wall Street Journal, have celebrated gut-level, impulsive reactions. In one Journal column ("Crime Solution: Lock 'em Up"), Ben J. Wattenberg writes that criminologists don't know what works. What works is what everyone intuitively knows: "A thug in prison cannot shoot your sister." In another Journal column ("The People Want Revenge"), the conservative intellectual Paul Johnson argues that government is failing ordinary people by ignoring their retributive wishes. Ordinary people, he writes, want neither to understand criminals nor to reform them. "They want them punished as severely and cheaply as possible."

Johnson is partly right and mostly wrong. Ordinary people want more than anything to walk the streets safely and to protect their families and their homes. Intuitively, like Wattenberg, many believe that more prisons and longer sentences offer safety along with punishment. But, especially in dealing with crime, intuition isn't always a sound basis for judgment.

The United States already has the highest rate of imprisonment of any major nation. The prisons have expanded enormously in recent years in part because of get-tough measures sending low-level drug offenders to jail. Intuitions were wrong: the available evidence does not suggest that imprisoning those offenders has made the public safer.

The current symbol of the intuitive lock-'em-up response is "three strikes and you're out"--life sentences for criminals convicted of three violent or serious felonies. The catchy slogan appears to have mesmerized politicians from one coast to the other and across party lines. Three-strikes fever began in the fall of 1993 in the wake of the intense media coverage of the abduction and murder of a 12-year-old California girl, Polly Klaas, who was the victim, according to police, of a criminal with a long and violent record. California's Republican Governor Pete Wilson took up the call for three strikes, and on March 7 the California legislature overwhelmingly approved the proposal. Even New York Governor Mario Cuomo endorsed a three strikes measure. The U.S. Senate has passed a crime bill that adopts three strikes as well as a major expansion of the federal role in financing state prisons and stiffening state sentencing policy. In his 1994 State of the Union address, President Clinton singled out the Senate legislation and three strikes for praise.

But will three strikes work? Teenagers and young men in their twenties commit the vast majority of violent offenses. The National Youth Survey, conducted by Colorado criminologist Delbert S. Elliott, found that serious violent offenses (aggravated assault, rape, and robbery involving some injury or weapon) peak at age 17. The rate is half as much at age 24 and declines significantly as offenders mature into their thirties.

If we impose life sentences on serious violent offenders on their third conviction--after they have served two sentences--we will generally do so in the twilight of their criminal careers. Three-strikes laws will eventually fill our prisons with geriatric offenders, whose care will be increasingly expensive when their propensities to commit crime are at the lowest.

Take the case of "Albert," described in the New York Times not long ago by Mimi Silbert, president of the Delancey Street Foundation in San Francisco. At age 10, Albert was the youngest member of a barrio gang. By the time he was sent to San Quentin at the age of 19, he had committed 27 armed robberies and fathered two children. Now 36, he is a plumber and substitute teacher who has for years been crime-free, drug-free, and violence-free. According to Silbert, the Delancey Street program has turned around the lives of more than 10,000 Alberts in the past 23 years.

To imprison the Alberts of the world for life makes sense if the purpose is retribution. But if life imprisonment is supposed to increase public safety, we will be disappointed with the results. To achieve that purpose, we need to focus on preventing violent crimes committed by high-risk youths. That is where the real problem lies.

The best that can be said of some three-strikes proposals is that they would be drawn so narrowly that they would have little effect. The impact depends on which felonies count as strikes. Richard H. Girgenti, director of the New York State Division of Criminal Justice Services, says that the measure supported by Governor Cuomo would affect only 300 people a year and be coupled with the release of nonviolent prisoners. President Clinton is also supporting a version of three strikes that is more narrowly drawn than California's. Proposals like California's, however, will result in incarcerating thousands of convicts into middle and old age.

Regressing to the Mean

Before Governor Wilson signed the most draconian of the three-strikes bill introduced in the legislature, district attorneys across the state assailed the measure, arguing that it would clog courts, cost too much money, and result in disproportionate sentences for nonviolent offenders. So potent is the political crime panic in California that the pleas of the prosecutors were rebuffed.

The prospect in California is ominous. Even without three-strikes legislation, California is already the nation's biggest jailer, with one out of eight American prisoners occupying its cells. During the past 16 years, its prison population has grown 600 percent, while violent crime in the state has increased 40 percent. As Franklin E. Zimring and Gordon Hawkins demonstrate in a recent issue of the British Journal of Criminology, correctional growth in California was "in a class by itself" during the 1980s. The three next largest state prison systems (New York, Texas, and Florida) experienced half the growth of California, and western European systems about a quarter.

To pay for a five-fold increase in the corrections budget since 1980, Californians have had to sacrifice other services. Education especially has suffered. Ten years ago, California devoted 14 percent of its state budget to higher education and 4 percent to prisons. Today it devotes 9 percent to both.

The Fear Factor

The lock-'em-up approach plays to people's fear of crime, which is rising, while actual crime rates are stabilizing or declining. This is by no means to argue that fear of crime is unjustified. Crime has risen enormously in the United States in the last quarter-century, but it is no more serious in 1994 than it was in 1991. The FBI's crime index declined 4 percent from 1991 to 1992.

In California, a legislative report released in January indicates that the overall crime rate per 100,000 people declined slightly from 1991 to 1992, dropping from 3,503.3 to 3,491.5. Violent crimes--homicide, forcible rape, robbery, and aggravated assault--rose slightly, from 1,079.8 to 1,103.9. Early figures for 1993 show a small decline.

On the other coast, New York City reported a slight decline in homicides, 1,960 in 1993, compared with 1,995 in 1992, and they are clustered in 12 of the city's 75 police districts, places like East New York and the South Bronx. "On the east side of Manhattan," writes Matthew Purdy in the New York Times, "in the neighborhood of United Nations diplomats and quiet streets of exclusive apartments, the gunfire might as well be in a distant city."

So why, when crime rates are flat, has crime become America's number one problem in the polls? Part of the answer is that fear of crime rises with publicity, especially on television. Polly Klaas's murder, the killing of tourists in Florida, the roadside murder of the father of former basketball star Michael Jordan, and the killing of commuters on a Long Island Railroad train sent a scary message to the majority of Americans who do not reside in the inner cities. The message seemed to be that random violence is everywhere and you are no longer safe--not in your suburban home, commuter train, or automobile--and the police and the courts cannot or will not protect you.

A recent and as yet unpublished study by Zimring and Hawkins argues that Ameri- ca's problem is not crime per se but random violence. They compare Los Angeles and Sydney, Australia. Both cities have a population of 3.6 million, and both are multicultural (although Sydney is less so). Crime in Sydney is a serious annoyance but not a major threat. My wife and I, like other tourists, walked through Sydney at night last spring with no fear of being assaulted.

Sydney's crime pattern explains the difference. Its burglary rate is actually 10 percent higher than L.A.'s, and its theft rate is 73 percent of L.A.'s. But its robbery and homicide rates are strikingly lower, with only 12.5 percent of L.A.'s robbery rate and only 7.3 percent of L.A.'s homicide rate.

Americans and Australians don't like any kind of crime, but most auto thefts and many burglaries are annoying rather than terrifying. It is random violent crime, like a shooting in a fast-food restaurant, that is driving fear.

Violent crime, as I suggested earlier, is chiefly the work of young men between the ages of 15 and 24. The magnitude of teenage male involvement in violent crime is frightening. "At the peak age (17)," Delbert Elliott writes, "36 percent of African-American (black) males and 25 percent of non-Hispanic (white) males report one or more serious violent offenses." Nor are young women free of violence. One in five African-American females and one in ten white females report having committed a serious violent offense.

Blacks are more likely than whites to continue their violence into their adult years. Elliott considers this finding to be an important insight into the high arrest and incarceration rates of young adult black males. As teenagers, black and white males are roughly comparable in their disposition to violence. "Yet," Elliott writes, "once involved in a lifestyle that includes serious forms of violence, theft, and substance use, persons from disadvantaged families and neighborhoods find it very difficult to escape. They have fewer opportunities for conventional adult roles, and they are more deeply embedded in and dependent upon the gangs and the illicit economy that flourish in their neighborhoods."

The key to reformation, Elliott argues, is the capacity to make the transition into conventional adult work and family roles. His data show that those who successfully make the change "give up their involvement in violence." Confinement in what will surely be overcrowded prisons can scarcely facilitate that transition, while community-based programs like Delancey Street have proven successful.

Just as violent crime is concentrated among the young, so is drug use. Drug treatment must be a key feature of crime prevention both in prisons and outside. There is some good news here. In early 1994, President Clinton and a half-dozen cabinet members visited a Maryland prison that boasts a model drug-treatment program to announce a national drug strategy that sharply increases spending for drug treatment and rehabilitation. Although the major share of the anti-drug budget, 59 percent, is still allocated to law enforcement, the change is in the right direction. A number of jurisdictions across the country have developed promising court-ordered rehabilitation programs that seem to be succeeding in reducing both drug use and the criminality of drug-using offenders.