One law that is never enacted by a legislature, signed by an executive, or put on the ballot is the law of unintended consequences. California’s 1994 Three Strikes and You're Out law has produced a reduction in crime (28 percent) but, a Harvard researcher, Radha Iyengar, PhD, in a Tipping Point /Freakonomics vein, has published a report citing California’s three strikes sentencing law as a law with costly criminal and social ramifications. In California, the three strikes clock starts ticking on the offender’s first serious (“record aggravating”) charge. After that clock starts ticking, any felony conviction starts the tally towards Three Strikes and You’re Out! — a mandatory sentence of 25 years to life imprisonment.
In her paper entitled “I’d Rather Be Hanged for a Sheep than a Lamb —The Unintended Consequences of Three Strikes’ Laws,” the author asserts, through mathematical and statistical analysis, that the third strike has an increased probability (9 percent) of being a more violent crime with the accelerated and attendant court, incarceration, and victim costs associated with violent crime.
Iyengar’s research, based on California data, says that criminals knowing that they are facing a third strike are more likely to commit a serious, forceful, or violent crime rather than a lesser crime. In essence, the criminal will assess the risk/reward factor in the crime and go for broke. Since a car theft conviction or a murder conviction will result in the same lengthy mandatory sentence, there is no incentive to tone down the third offense.
Iyengar writes, “…criminals respond to incentives…criminals are aware of the sentencing structure and their own eligibility for punishment.”
Another unintended consequence of the California three strikes law, says Iyengar, is that criminals facing the law take their law-breaking out of state. Fifty thousand more crimes are committed in Arizona (which does not have a three strikes law) and Nevada (which has a milder version) because criminals want to avoid the risk of being convicted of a third crime in California.
To date, 26 other states have enacted some form of a three strikes law, but that trend is shifting, as Connecticut and Kansas, for two, have recently backed away from legislative proposals to enact such laws. Washington State has revised its law to make it work better to include those out-of-state convictions in the consideration of sentencing. California has sentenced 40,000 people to “Three Strikes and You’re Out” sentences. No other state has come close to sentencing 1,000 individuals to such laws.