Three strikes and we’re out of cash | Sasha Abramsky

That a California cheese thief ever faced life in prison shows how the absurd ‘three strikes’ rule can waste valuable resources

In an era of savage budget cuts to the most basic of public services, does it make sense for a state to spend $50,000-$100,000 a year to lock up a cheese thief for the rest of his natural life?

The obvious answer to that question would be “no.” After all, $100,000 could keep one or two teachers employed; could pay the home-health care costs of disabled low-income Americans; or could keep an after-school programme afloat. And yet, that is precisely what a grandstanding California district attorney’s office earlier this month suggested was an appropriate solution for the problem that is Robert Ferguson: a mentally ill, drug-addicted 53-year-old habitual offender who has cycled in and out of prison for most of his adult life and found himself on the wrong end of a three strikes prosecution for the monstrous crime of stuffing a $3.99 bag of shredded cheese down his underpants and hot-tailing it out of a Nugget supermarket without paying.

Deputy District Attorney Clinton Parish argued that because of Ferguson’s past history, his inability to learn from his mistakes, the public would be best served by putting him away for at least the next 20 years behind bars – in effect a life sentence for a man of his age. Parish intended to push for a three strikes ruling during a sentencing hearing scheduled for March 1. Since it costs an average of about $40-$50,000 per year to house an inmate in California, and upwards of $100,000 once they get older and sicker, Parish was essentially asking the state to pony up one to two million dollars to pay for Ferguson’s incarceration over the next several decades.

But a funny thing happened on the way to the forum…

Three strikes and you’re out has been a sacrosanct part of the California legal system for nearly 17 years now. It has cost the state a royal fortune and while it has undoubtedly put some very hardened criminals behind bars, it has also snared an awful lot of non-violent, middle-aged offenders in its net. It’s like industrial fishing – sure, you get the tuna, but you also end up destroying a huge number of fish you don’t want or need. Yet, the public has remained attached to the three strikes law, DAs love the power it gives them, and attempts to reform it, or to limit its applicability to more serious crimes, have all failed. This time around, however, a number of newspapers, including conservative publications such as the Orange County Register, ridiculed the DA’s office for its willingness to waste taxpayer dollars.

Earlier this week, the Yolo County DA suddenly withdrew the request for a Three Strikes sentence. Hostile press coverage, of course, had nothing to do with it; apparently a new psychological evaluation had convinced the office that Ferguson should no longer be looked at as a “life case”.

Three strikes is something that I have written on quite a bit over the years; I have talked with many three strikers and their families, and periodically receive updates from them on their status. This past Christmas I got a card from the wife of one inmate, who has spent the last 16 years behind bars on a drug-related offence. “It is hard to believe that nearly 16-years have gone by and we still have another 12 before D** will be eligible for parole,” she wrote. “You would think that with all of California’s budget problems, someone in Sacramento would realise that 16 years for a minor offence is long enough.”

The sense of futility in stories like these is what enrages me most. Is society truly made safer, does the difficult work of “healing” damaged people and broken communities really get done, by imposing these outlandish sentences in the name of justice? Did the Yolo County DA ever truly believe that society would benefit from throwing away the key on a petty nuisance like Robert Ferguson?

Enlightenment thinkers like Cesare Beccaria, Jefferson, or Bentham, knew that for justice to be respected – for the institutions of state to be seen as fair rather than as simply terrifying – punishment had to be in some meaningful way proportionate to the crime. Three strikes systematically dismantles the sense of proportionality.

Sure, things worked out OK for Ferguson this time around because of a few timely newspaper articles. But thousands of other low-end offenders are already serving three strikes sentences, and as long as the law remains on the books thousands more will likely receive such sentences in the years ahead. That a man with unpaid-for cheese in his underwear could ever have faced essentially the same sentence as Umar Farouk Abdulmutallab, a man with plastic explosives in his underwear with which he tried to kill nearly 300 people aboard a transcontinental aircraft, is an absurdity.

Three strikes is a moral blot on the California legal system and, as the newspaper coverage of the Ferguson case pointed out, it is responsible for wasting vast sums of taxpayer money. Increasingly defined by the politics of austerity – by lists of programmes that can’t be maintained and infrastructure that is being left to decay – states simply cannot afford to keep such laws on the books.

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