Three Strikes and You're Dead
Tucker, William
Three Strikes and You're Dead The anti-crime proposal now winning praise from both parties is little more than a gimmick that will increase the incentive to murder. by William Tucker 5 Young...
...Most likely...
...Yet California still has carried out only one execution among its 328 murderers on Death Row...
...By contrast, James Earl Ray tied up Congress with his protestations of innocence fifteen years after the assassination of Martin Luther King, and Sirhan Sirhan comes up for parole in California every two years...
...One of the oldest truisms of justice is that the punishment should fit the crime...
...Montesquieu, of course, was criticizing the overuse of the death penalty, and the same criticism could have been made in the U.S...
...Until 1960, capital punishment was practiced routinely in the United States...
...But the police, at least, are prepared for such confrontations...
...Since then, however, "crimes of passion"• have declined to less than 70 percent of all murders...
...The idea grows out of the basic perception that about 70 percent of all violent crime is committed by only a handful of "hard-core" criminals...
...But once the crime begins, a fearful logic is set in motion...
...For that reason, it is necessary to have a qualitatively different form of punishment available...
...Once the death penalty is abandoned, however, everything else must change...
...grounds...
...In Russia, where the punishment of robbery and murder is the same, they always murder...
...T he change in the kind of murder committed over the past thirty years makes it clear that this is happening...
...If she identifies you, you will get twenty years in jail...
...Unknown to you, the possessor of the gun is a "two-time loser"—a career criminal who already has two violent felony convictions on his record...
...Under "three strikes and you're out," however, these risks will be imposed upon the general public...
...You try to keep this recognition out of your face, but suddenly the man senses it...
...S uch explicit definitions represent an enormous improvement over the old haphazard system in which—as the Supreme Court rightly observed in Furman (1972)—the chances of receiving the death penalty in the U.S...
...Where there is no difference in the penalty, there should be some expectation of pardon...
...In a cover story, Time reported that 81 percent of the public wants the reform...
...But without the specter of a death penalty, there is nothing to stand between apprehension and impulse...
...But the logic also applies to its underuse: without a significant differentiation between violence and homicide, there is nothing to inhibit the rapist/robber from killing his victim...
...There are other ramifications, however, that are equally damaging...
...Dead men tell no tales...
...What does that say to a rapist...
...As a result, thirty-seven states have now adopted capital punishment for at least some type of murder...
...Other states are in the same bind...
...Instead, in 1964, the trend abruptly reversed...
...Rape gets five years, robbery less than four, assault or burglary two, drug trafficking less than two, and auto theft is free...
...to this difference it is owing that though they rob in that country they never murder...
...Another problem was that in many states the death penalty for certain crimes was mandatory...
...In fact, he probably didn't mean to hurt them...
...One youth died instantly...
...Did this 22-year-old novice want to kill his victims...
...At least a third of the time, there were no bullets in the gun, or the firing pin was missing, or the gun had been disabled...
...The Wall Street Journal has written favorable editorials...
...The penalty for that: also life in prison...
...D wring the 1950s, the rate of execution did taper off...
...At the time of Furman, North Carolina was still executing people for burglary...
...So the student put his gun to their heads and shot both...
...If burglarizing a house carries a penalty of three years in jail, then burglarizing and burning the house down to destroy the evidence must carry a considerably stricter penalty...
...Even so, the Bird court found no "intent to kill...
...24 The American Spectator March 1994 will be ready to kill anybody and anything in order to avoid apprehension...
...Although records are incomplete (the FBI's Uniform Crime Reports didn't become uniform until 1958), what evidence exists suggests that murder rates dropped steadily from 1935 to 1960...
...The other jerked his head and suffered a non-fatal wound...
...Litigation groups drag appeals on endlessly—often at public expense...
...The man with the gun is someone you saw on a bus just a few days ago...
...At this point, either the judge or What happened to murder rates after executions all but ended in the early 1960s...
...were as arbitrary as "being struck by lightning...
...He remembers, too...
...Surely, for the public security, some difference should be made in the punishment...
...Granted, the police often faced this dilemma in trying to apprehend a murderer facing a certain death sentence...
...Ideological opposition mounted and, under the Warren Court, appeals became vastly more complicated...
...To the naked eye, it would seem as if the loss of the death penalty had something (if not everything) to do with this historic reversal...
...Many robbers deliberately kill their victims, knowing that they are reducing their chances of being caught...
...In fact, he probably didn't mean to hurt them...
...As a result, killers often surrendered at newspaper offices in order to avoid shoot-outs...
...as late as 1972...
...The pre-med student was nabbed a half-hour later on the Bronx River Parkway...
...Kill your victim...
...But once the crime begins, a fearful logic is set in motion...
...He would have shot the kid a second time just to make sure...
...The early 1980s saw some tapering off, but rates rose again after 1987, reaching 9.8 per 100,000 in 1991...
...You even remember the stop where he got off...
...The same logic will be even more compelling under "three-strikes and you're out...
...by William Tucker 5 Young Robbers Took the Cash, Then Killed Anyway, Police Say —New York Times headline, February 3, 1994 / magine that five years from now you're walking down a dark street and somebody points a gun in your face, announcing a stick-up...
...He knows your face, you know his face...
...The Supreme Court outlawed all remaining capital-punishment laws in Furman v. Georgia (1972).t yet grasped what out the death penalty...
...Generally, statutes impose the death penalty for the following crimes: (1) premeditated murder, (2) felony murder (murder committed during the course of another crime), (3) murder-forhire, (4) murder with torture, (5) multiple murder, or (6) terrorist murder...
...From a low of 4.6 per 100,000 in 1963, the murder rate climbed 10 percent per year in 1966 and 1967, eventually peaking at 10.2 per 100,000 in 1980...
...Opponents delay and delay, hoping that one day the Supreme Court will tire of the whole process and once again declare it "cruel and unusual" that 2,600 convicts have been kept waiting so long on Death Row...
...The number fell below 100 in 1950, below 50 in 1958...
...Get three violent crimes on your record, and you go to jail for life, with no chance of parole...
...71 26 The American Spectator March 1994...
...Between 1979 and 1987, California Supreme Court under Chief Justice Rose Bird overturned thirty-seven out of forty death sentences on purely technical violent crimes may leave a person scarred for life, but murder ends life...
...These guys wanted the fear the gun would bring, but they didn't want even the chance that someone might accidentally get killed duringthe stick-up...
...From the historical low point of 1966—the only year in which a plurality of respondents to the Gallup Poll opposed the death penalty—support has The American Spectator March 1994' 23 the jury decides whether capital punishment should be imposed, usually after hearing testimony from both the defendant and members of the victim's family...
...Lock these people up—so the theory William Tucker is TAS 's New York correspondent...
...As late as the 1950s, Louisiana and Mississippi had mobile electric chairs that rumbled from one county jail to the next, executing people for who-knows-what...
...Unfortunately, it isn't going to work...
...As a rookie patrolman in the 1950s, he and his partners spent day after day protecting store owners along Brooklyn's Flatbush Avenue...
...Not much to discourage a hardened criminal, perhaps, but enough to give a first-time offender pause...
...Three-strikes-you'reout will only turn more victims of violent crime into murder victims...
...Otheroday, as everyone T knows, sentencing in the American justice system is an elaborate ruse to fool the public into the impression that long terms are being handed out, while in fact actual prison time is relatively short...
...The ex-con, who had received a hundred dollar payment from the prison friend's son, killed his victims execution-style...
...Under the "three-strikes-and-you're-out" reform recently adopted by the state legislature, the man with the gun now has the following options: (1) he can take your money and run, knowing your testimony to the police will bring him life in prison...
...One-third of the opponents of the death penalty say they wouldn't support it even if it could be shown to deter murder...
...The state of Washington adopted such a law by public referendum in 1990...
...The justice system is what you might call an "ecology...
...Right now, the average convicted murderer in the U.S...
...In fact, the predictable result will be that more and more violent crimes will escalate into murders...
...Anyone peering into the future in 1963 would have predicted that peace and prosperity were making us into a far more civilized society...
...22 The American Spectator March 1994 Americans haven' it means to live with goes—and throw away the key, and the streets will be safe again...
...Left for dead, he quickly made it to a nearby house and called the police...
...This led to guessing games between a jury and the prosecutor, in, which a jury would acquit someone it believed to be guilty because the members didn't believe the death penalty was justified...
...The youth who survived the shooting will be the principal witness at his trial...
...Richard Speck, who killed eight nursing students in 1966, died in jail...
...In truth, between 1930 to 1950, the number of executions per year ranged between 117 and 199—about three or four for each state...
...What we cannot do, though, is start raising the penalties for other crimes...
...What's the difference...
...These searches often turned up guns—which meant an immediate arrest under the old Sullivan Law...
...If a planned, premeditated murder is only worth 25years-to-life, then unplanned murders can only be worth 10to-15...
...In the old days, many a killer vowed he would "never be taken alive...
...It's going to be a simple matter for you to identify him to the police...
...With 24,000 murders in 1992 and 38 executions, the expectation is now 1 in 625...
...Anyone who killed someone lived with the reasonable expectation that he might forfeit his own life in return...
...In one case, where an armed robber had shot and killed a Brink's guard, the court said the verdict was improper because the jury had failed to consider whether the robber was only shooting the guard to "immobilize" him...
...Almost certainly not...
...President Clinton received the loudest ovation from both sides of the aisle for proposing it during his State Of the Union Address...
...In England they never murder on the highway, because robbers have some hopes of transportation [exile], which is not the case in respect to those that commit murder...
...Facing life in jail for a third felony, he Holding them at gunpoint, he assured the two youths over and over, "I'm not going to hurt you...
...They knew a robbery meant jail, while a murder meant the electric chair...
...Yet even this procedure does not pass muster with the judicial and law-school elites that oppose the death penalty on purely ideological grounds...
...On February 15, 1933, Giuseppe Zangara, an anarchist, attempted to assassinate President-elect Franklin Roosevelt and fatally shot the mayor of Chicago instead...
...risen steadily to 76 percent in 1993 (down from a peak of 79 percent in 1988...
...But the statutory penalty for murder in nearly every state is also twenty years—and in reality is only half that...
...What surprises Coughlin—in retrospect—is how often the guns turned out to be unloaded...
...T here is a terrifying, inexorable logic to all this—one that criminals themselves often do not recognize until it is too late...
...Robbery and rape could be punished by 10-to-15-year sentences, burglary and assault by 5 years, and so on...
...The public is certainly convinced that it did...
...Armed with these perceptions, they have pushed legislation to raise the penalty for rape to as high as twenty years...
...When first-degree murder (killing with a motive) was punishable by death, it was possible to mete out 20-years-to-life sentences for second-degree ("impulsive") 'killings...
...Penalties must be neither too harsh nor too soft...
...Phrases such as "hanging for it" and "going-to the chair" were part of the language...
...Today the calculus is reversed...
...The dead, they say, tell no tales...
...Now all that is different...
...Equally important in that era was the swiftness and certainty of capital punishment...
...Voters threw out the Bird court en masse in a 1987 election and installed a new majority that is not ideologically opposed to capital punishment...
...or (2) he can blow your head off and eliminate the principal witness to his crime...
...Rape and robbery must be lowered to 5-to-7, burglaries to 1-to-2 years, and so on down the line...
...Would an experienced criminal have done things differently...
...The cops would probably still be looking for him...
...But even that wasn't good enough...
...How do you wipe a face from someone's memory...
...Particularly in gang crimes, the peer pressure to prove your manhood by pulling the trigger may be overwhelming, The need to maintain a differential between crimes of violence and murder has long been recognized as one of the greatest responsibilities of the justice system...
...Furman himself was to be executed for rape...
...Murder is generally considered the ultimate crime...
...If you slit her throat to keep her from talking, you double your jail time...
...As you fumble for your wallet, you have a sudden realization...
...Unless I do something, they'll go to the police and identify me...
...As a criminal's violent record grows, he will be less and less amenable to the idea of getting caught...
...When liberals argued against the death penalty in the 1960s, they inevitably pointed out that 90 percent of all murders were "crimes of passion"—unplanned, impulsive killings among families and friends...
...The only outcome will be to blur, once again, the distinction between "violent crime" and homicide...
...These are the murders that were being deterred by the death penalty...
...Charles Starkweather, who killed thirteen people, was executed in Nebraska in 1959...
...The spectacle of the condemned killer mocking the state year after year with legal chicanery did not exist...
...Eventually, they would get away and describe him to the police...
...serves eleven years in prison...
...Since murders numbered between 5,000 and 7,000 per year, the likelihood of execution for murder was about 1 in 25...
...That's because Americans, liberal and conservative alike, haven't yet grasped what it means to live without the ultimate punishment itself: the death penalty...
...The possibilities for sophistry are endless...
...At the time, we were allowed to stop and frisk anyone whom the store owner believed was 'casing' the place," says Coughlin...
...or (2) we can restore capital punishment for first-degree murder...
...Last January, for example, a 22year-old black pre-med student from the Bronx allegedly drove to a shopping mall in suburban Rockland County and hijacked a jeep from two local teenagers...
...In a field which, like public education, is beginning to be dominated by fads, "three strikes" is the idea of the year...
...In 1964, the number of executions dwindled to fifteen, and after 1966 they stopped altogether...
...The incidence of decline held for blacks, too—despite a vast migration from the rural South to the cities, where crime rates are always higher...
...Weak as these sentences may be, it still might be argued that they retain something of a differential between rape and robbery, on the one hand, and murder on the other...
...In another case, an ex-convict sought out and killed three people in a grocery store, one of whom was the principal witness in a prison friend's robbery conviction...
...She is the principal witness to the crime...
...Both New York's Governor Mario Cuomo and California's Governor Pete Wilson have hopped on board...
...In some circles, it has become a matter of proving you "have heart" to eliminate the victims of your crime...
...In every state, the jury first returns its verdict of guilt or innocence...
...Dead women tell no tales...
...Otherwise, there will be an incentive for burglars to up the ante to improve their chances of escape...
...If you kill her, you get the same twenty years...
...Zangara had been tried and executed before Roosevelt took the oath of office on March 21...
...The remainder are "stranger murders"—crimes committed at random or in the act of committing other crimes...
...Only after guilt has been established does the proceeding enter the "penalty phase...
...In any such complex system—as the environmentalists love to tell us—it is impossible to change one thing without altering everything else as well...
...So instead, the pre-med student tied up the two youths and drove them to a secluded woods...
...These people know me," the criminal says to himself...
...Because the top charge has been lowered, the punishment for all other crimes must be lowered as well...
...Holding them at gunpoint, he assured the two youths over and over, "I'm not going to hurt you...
...America was becoming less violent...
...j ohn Coughlin, a retired detective with the New York City Police Department, remembers a time when things were different...
...Some states also specify murder of a policeman or prison guard...
...They've seen my face...
...Basically, we have two choices: (1) we can go on living with the mayhem that surrounds us...
...With 24,000 murders each year nationwide, the justice system still can't seem to find anybody who is guilty of anything...
...How much do you think your life would be worth at that moment...
...In China, those who add murder to robbery are cut in pieces: but not so for those who only rob...
...If you rape a woman, you get five years...
...These confusions have now been resolved in a legislative effort that has made the procedures surrounding the death penalty as reasonable and fair as can be expected...
...What is going to happen, though, when we decide to "get tough" and start raising sentences for non-murders...
...There is no way around this logic...
...The death penalty isn't going to deter these crimes," they argued—and they were probably correct...
...In The Spirit of the Laws, (1748), Montesquieu, after surveying the criminal justice systems of the whole world, criticized his own countrymen of the risks of failing to make this distinction: It is a great abuse amongst us [the French] to condemn to the same punishment a person that only robs on the highway and another who robs and murders...
...Women's groups, for example, have argued in recent years that rape is in many ways worse than death—a crime that leaves a woman scarred for life...
...But it is equally important that clear and recognizable differentials be maintained in the penalties for qualitatively different levels of crime...
...In retrospect, the era is remembered as a period of wanton slaughter...
...6 6hree strikes and you're out" is the latest fad in the anti-crime debate...
...For most of history, this has been the death penalty...
Vol. 27 • March 1994 • No. 3
