Tough on Crime Policies have “Struck Out”: Moving Away from Three Strikes and Towards a Rehabilitative Approach with the Second Chance Act
Matthew R. Hassett - Indiana University of Pennsylvania
It can be argued that one of most pressing issues of the criminal justice system is that of recidivism. That is, not only is criminal offending a problem, but re-offending by the same individuals is a major issue. Historically, after the Nixon administration, crime began to be addressed with punitive policies, such as mandatory minimum sentences and three strikes laws (Cole & Gertz, 2013). In this era, politicians used crime as a political platform and the, “…tough on crime movement began because of a small upswing in crime that politicians used as a platform for debate over who could be more punitive” (Cole & Gertz, 2013, p. 4). However, some more recent policies are counter to those that encompass the “tough on crime” movement, such as the Second Chance Act. Specifically, the Second Chance Act focuses on providing programs with federal funding to help former inmates successfully reenter into society (Bureau of Justice Assistance, 2009). Policies like the Second Chance Act need to be embraced and “tough on crime” policies, such as three strikes laws, need to be changed or abandoned.
Three strikes legislation needs to be changed or abandoned for a variety of reasons. First, research has shown that three strikes laws have not been effective in reducing crime rates (Kovandzic, Sloan, & Vieraitis, 2004). Second, being that three strikes laws incarcerate offenders for long periods of time, they are extremely costly (Caulkins, 2001). Third, three strikes laws have been found to have a net-widening effect and individuals (other than those who were the primary targets of the legislation) are increasingly being sentenced under the laws (Benekos & Merlo, 2006). Many arguments can be made with regard to the issues associated with three strikes laws and the previously mentioned points and others will be elaborated on in the forthcoming sections of this policy brief. As a result of the laws being accompanied by many issues, more rehabilitative-type approaches should be embraced, such as with the Second Chance Act.
Context and Importance of the Problem
Almost all incarcerated individuals will eventually return to society at one point or another (Frost, 2011). In fact, it has been said that approximately 95% of incarcerated individuals will eventually be released from prisons and re-enter society (Bureau of Justice Assistance, 2009). In 2008, 683,106 individuals were released from state prisons, 52,348 were released from federal prisons, adding to a total of 735, 545 prisoners returning to society in the United States (Sabol, West, & Cooper, 2009). Frost (2011) explains that, “At no other point in U.S. history have so many individuals experienced prison and confronted the challenge of reentering communities following incarceration” (p.159). One of the major problems related to the criminal justice system is that of recidivism or incarcerated individuals re-offending sometime beyond their release. It was found that in 1994, 51.8% of individuals released from prison in the United States were re-incarcerated within three years (Lagan & Levin, 2002). In more recent years, it was found that in 1999, 45.4% of individuals and in 2004, 43.3% of individuals were re-incarcerated within three years of their release (Pew Center on the States, 2011).
The root causes of the issue of recidivism can partially be attributed to the fact that many incarcerated individuals do not have access to assistance prior to or after their release. In regard to prisoner reentry, it has been said that, “Few of those released have had any meaningful prerelease assistance, and most will encounter a series of obstacles to reintegration. Crucially, the communities to which inmates return are all too often among the most disadvantaged of communities” (Frost, 2011, p. 159). As a result of this, many offenders returning to society re-offend because they cannot access the necessities to become active members of the conventional community. Many individuals who were previously incarcerated are ineligible for employment opportunities, public benefits, government-assisted housing, and other forms of assistance (Pinard, 2007). If you add the stigma of being a convicted criminal to the previously mentioned issues, many prisoners trying to successfully re-enter society are almost inevitably set up for failure.
In the past, issues of recidivism have been dealt with using a “tough on crime” mentality. With policies, such as three strikes legislation, it is thought that recidivism can be reduced through incapacitation and deterrence. However, research has shown that these efforts have not only been ineffective (Kovandzic et al. 2004), but extremely expensive as well (Caulkins, 2001). Therefore, the negative policy implications of three strikes legislation are great and these issues will be elaborated on in forthcoming sections. As a result of the negative implications of three strikes legislation, it is time to move away from a “tough on crime” approach and move towards a rehabilitative mentality with the Second Chance Act.
Critique of Policy Options
In an attempt to address the issues of recidivism, policy options can take many forms. The most popular policies historically were based on the “tough on crime” mentality and have focused on the punishment. It can be said that after the Nixon administration, political leaders embraced harsh punishments and the development of new and harsher sanctions throughout the years has been termed the “punitive movement” (Cole & Gertz, 2013). Frost (2011) explains that prior to the 1970’s, rehabilitation was the major focus of corrections, but since then deterrence, incapacitation, and retribution have been the cornerstone of corrections. However, in more recent years the mentality of policy making has seemed to shift away from the “tough on crime” standpoint. Specifically, it has been said that in recent years even republicans who have historically held a “tough on crime” mentality have somewhat moved away from this standpoint and embraced a “right on crime” movement (Cole & Gertz, 2013).
Another policy option to address the issue of recidivism is to abandon the focuses of incapacitation and retribution and shift back to rehabilitative thinking. Specifically, instead of locking up individuals over and over again when they will be released to disadvantaged communities with no skills for success, the focus should be on providing tools to offenders that they can use to become successful members of society upon reentry. One piece of legislation that falls under this mentality is that of the Second Chance Act, which provides individuals who are going to reenter society with pre and post-release services to assist them with successful reintegration (Frost, 2011). Specifically, in 2008 President Bush originally signed into law the “Second Chance Act: Community Safety Through Recidivism Prevention,” which would provide federal funding to organizations that provided reentry-related services (Willison, Walters, Lindsey Cramer, Fontaine, Horvath, Owens, Rossman, Walsh Barrick, Kennedy, Morkovites, Sheppard, 2013).
The goal of the Second Chance Act is to reduce recidivism by 50% percent over a five year period by providing federal money to offer offenders services, such as housing, child welfare, education, substance abuse, mental health, employment, etc. (O’Hear, 2007). Research has shown that services, such as the ones funded by the Second Chance Act, can help individuals stay out of prison. For instance, Markowitz (2013) states that, “High quality, well-coordinated community mental health services that focus on both symptom reduction and social-economic well-being (e.g., housing and employment) may reduce the number of mentally ill persons who end up in jails and prisons” (p.453). Prior to a discussion of how this act could be successfully implemented, it becomes necessary to discuss the reasons why the three strikes policies of the “tough on crime” movement need to be changed or abandoned.
The Failures and Shortcomings of Three Strikes Legislation
It can be said that many “get tough” policies, such as three strikes legislation, are currently failing. Specifically, Walker and Cole (2013) state that, “In short, the conservative criminal justice program of “getting tough” on crime has failed in all of its manifestations” (p. 617). Adapted as a part of this movement were policies such as mandatory minimum sentences, severe penalties for drug offenses, and three strikes laws (Cole & Gertz, 2013). While it can be argued that three strikes policies can serve to incapacitate offenders for long periods of time, the costs associated with this incarceration are enormous. Research has shown that three strikes laws have not only been ineffective, but they have been accompanied by many negative implications (Austin, Clark, Hardyman, & Henry, 2000; Caulkins, 2001; Chen, 2008; Clark, Austin, & Henry, 1997; Kovandzic et al., 2004; Schmertmann, Amankwaa, & Long, 1998).
Between 1993 and 1995, 24 states and the federal government had developed three strikes laws with the intentions of keeping society safe and reducing crime by locking up habitual offenders (Clark et al., 1997). Specifically, a three strikes law, “...seeks to ensure that habitual offenders receive the toughest sentence available to the state absent of the death penalty—life imprisonment without the possibility of parole” (Austin et al., 2000, p. 1). While one would think that state implementation of the laws would have a reduction in crime rates as a result of giving stricter sentences to habitual offenders and deterring them form committing future crime, research has shown that this is not the case. Austin et al. (2000) found that three strikes laws did not have a significant impact on crime rates in areas in which they were implemented.
Kovandzic et al., (2004) conducted research that investigated the effectiveness of the laws using the Federal Bureau of Investigation’s Uniform Crime Report (UCR). The researchers looked at a twenty-year period that included the time before and after the laws were implemented. As a result of the research, it was found that the laws had no significant impact on crime rates in areas in which they were implemented. Surprisingly, the authors found that the laws were associated with an increase in homicide rates in some areas (Kovandzic, 2004). This could possibly be attributed to the fact that if an offender knows that they are going to receive a life sentence, they might commit a higher-level crime than they previously would have.
Unfortunately, research has shown that not only do three strikes laws pose a problem for the safety of victims and the general public, but the laws put law enforcement officers in danger as well. Johnson & Saint-Germain (2005) investigated California’s three strikes laws by examining the impact that they had on arrest rates, officer-involved shootings, resisting arrest charges, and assault of a police officer charges among other things. Using data derived from six major California police departments, the researchers found that the laws had a significant impact on all of the previously mentioned variables. That is, the laws were associated with a significant increase in arrest rates, resisting arrest cases, and assaults of police officers. However, perhaps the most astonishing finding of the study was that in the areas examined, there was a 113% increase in police officer victims between 1996 and 2001 with regard to two or three strike crimes (Johnson & Saint-Germain, 2005).
Some have argued that three strike laws can become more effective through the incarceration of more offenders and this can be accomplished by expanding the definition of what constitutes a strike (Caulkins, 2001). However, employing this tactic would be associated with greater costs and the laws are already very costly. In sum, Caulkins (2001) argues that a negative relationship exists between three strikes effect on crime rates and cost-effectiveness. That is, if the laws are expanded to potentially have a greater impact on crime rates, this will be associated with a decrease in cost-effectiveness. Furthermore, other problems are associated with embracing legislation from a predominately incapacitation-focused standpoint.
Morris and Tonry (2013) explain that the current problem of prison overcrowding can be attributed to “get tough” incapacitation-focused approaches. Specifically, the authors state that, “Incapacitation plays an increasing role in the sentencing decision and may in considerable part account for the present overcrowding of penal institutions” (Morris & Tonry, 2013, p. 373). Finally, if one were still compelled to make an argument for three strikes laws from a pure incapacitation standpoint (e.g. if costs were not an issue—although they always are), this argument could still be unfounded. That is, some research has shown that the incapacitation effects of three strikes laws can be achieved through other less restrictive (and cheaper) laws. Specifically, Chen (2008) investigated the impact that three strikes laws had on crime trends by comparing California (popular for its three strikes laws) to other states that do not employ such laws. It was found that the three strikes laws of California did not produce a greater incapacitation effect than those of the more limited laws of other states (Chen, 2008). Therefore, when thinking solely about incapacitation, three strikes laws were not found to be more successful at incapacitating serious offenders while they were actively committing crimes than other laws that were significantly cheaper.
As previously stated, three strikes laws were originally created to ensure that serious habitual offenders would receive tough sentences and be incapacitated for long periods of time through incarceration (Austin et al., 2000). However, it can be argued that the most serious consequences of three strikes laws are that they many times incapacitate the wrong people. That is, individuals who are sentenced under the laws are not always the serious habitual offenders that they were set out to capture. For instance, Clark et al. (1997) investigated that type of offenders who were being sentenced under three strikes laws in California and Washington from 1994 to 1996 soon after the laws were enacted. It was found that the laws were incarcerating individuals who would not classify as serious habitual offenders. For instance, it was found that the vast majority of individuals in California who were sentenced under the three strikes legislation either committed nonviolent offenses or were sentenced under the two-strikes provision (i.e. in certain cases an individual can receive a life sentence under a three strikes law after only two strikes). Perhaps even more astonishing, it was found that only one inmate in Washington, who was sentenced under the three strikes laws, committed a crime against a person (Clark et al., 1997).
A possible explanation of the ways in which the laws “miss their targets” is that they are said to have a net-widening effect (Benekos & Merlo, 2006). Many of the individuals who are sentenced under the laws are not the serious habitual offenders originally targeted (as shown in the research above) and this shows that the “net” of the laws has “widened” to not only capture the targeted individuals, but other individuals as well. Specifically, as a result of the net-widening effect of three strikes laws, individuals who commit minor level crimes are increasingly being incarcerated (Benekos & Merlo, 2006). Encompassed in “widened net” are individuals who are nonviolent drug offenders or even individuals who have committed low-level nonviolent crimes.
Not only are these types of offenders getting caught up in the laws, but they are doing so in a large capacity. In a report for the Justice Policy Institute, Ehlers, Schiraldi, and Ziedenburg (2004) state that, “California Department of Corrections data report that nearly two-thirds (65%) of those sentenced under California's Three Strikes laws are imprisoned for nonviolent offenses” (p. 4). Furthermore, research has also shown that three strike policies can challenge the efficiency of the criminal justice system (specifically with regard to the courts). Three strikes laws have been shown to disrupt the courtroom workgroup and are therefore resisted by its members. Harris and Jesilow (2000) surveyed judges, prosecutors, and defense attorneys in California regarding three strikes legislation. They found that these members of the courtroom workgroup resisted the policy because they felt that it disrupted the way in which the court conducts normal business efficiently.
Three strikes laws were also intended to put a stop to lenient sentencing/reduce judicial discretion and that is one of the reasons that they are considered to be part of the “tough on crime” mentality (Cole, 2013). However, in many cases these laws seem to simply shift discretion from judges to prosecutors. In many instances prosecutors have lessened felony charges that would fall under the realm of three strikes laws (Cole, 2013). Specifically, it is explained that, “...prosecutors become almost twice as likely to lower a felony arrest charge to a misdemeanor for the purposes of prosecution when conviction on the initial arrest charge would have led to sentencing under a three-strikes law” (Cole, 2013, p. 290). Moreover, the author explains that this situation takes place in light of the available resources of prosecutors and their individual preferences. An issue with allowing this amount of prosecutorial discretion is that it can potentially lead to an increase in sentencing variation (rather than a decrease like the laws intended) and can also lead to individuals actually receiving shorter sentences than they would have if they had been sentenced under regular non-three strikes laws (Cole, 2013). The aforementioned cases undermine the very rationale behind three strikes laws (putting serious habitual criminals behind bars for longer periods of time) because in many cases the opposite happens.
Perhaps the most severe limitation of three strikes legislation is the ageing prison population. Under mandatory sentencing laws, such as three strikes, many individuals who no longer pose a threat to society will still be in prison because of the laws. Schmertmann et al., (1998) conducted a study that analyzed the demographics of prison populations and found that the ever-aging prison population can undermine the effectiveness of three strikes laws in that many individuals who were sentenced under the laws are now older. Essentially, while some argue that three strikes laws can be effective because they incapacitate repeat offenders when they are actively committing crimes, this argument loses strength when these offenders age to a point when they are out of their “prime” for offending and no longer pose a threat to society.
Unfortunately, a consequence of keeping individuals incarcerated for a long period of time (even life) is that society still has to spend a significant amount of money to keep these individuals in prison while it may not be necessary (Schmertmann et al., 1998). With regards to cost, Rikard and Rosenberg (2013) explain that elderly inmates present a unique challenge. These challenges can include providing the elderly inmates with the proper medical care that they require (e.g. physicians, rehabilitative services, pharmacy access, etc.). Therefore, regarding the future, it can be said that, “...the responsibility of federal and state correctional departments to provide adequate medical care and housing for older inmates will be more complex—and more expensive—than ever (Rikard & Rosenberg, 2013, p. 406-407).
As previously argued, three strikes laws appear to be not only failing in their intentions, but they are accompanied by high costs, decreased safety, and other negative implications (Caulkins, 2001; Johnson & Saint-Germain, 2005; Kovandzic et al., 2004). With regard to the creation of the laws, research has shown that the mass media heavily influenced the support that the laws originally had. Grimes (2010) utilized a content analysis of newspapers and news magazine transcripts in an attempt to uncover how three strikes legislation gained support in the 1990s. As a result of the research, it was found that (as with other social problems) the mass media shaped the problem of crime. Specifically, it was found that the three strikes “slogan” was used both extensively and excessively in the mass media and the author argues that this had influenced that passing of the laws (Grimes, 2010).
Unfortunately, many examples of legislation that exists today appear to have emerged in similar ways in which the three strikes laws have. Should criminal justice policies be formed based on media construction and other non-evidence-based ways? Mears (2010) argues that many of the policies related to the criminal justice system today are irrational and not based on evidence. However, he goes on to explain that the recent push for evidence-based policies may change this unfortunate situation. Furthermore, it can be said that America is at a “crossroads” with regard to criminal justice policy and the choice can be made to continue to invest a substantial amount of money in policies that have not been proven to work or the country can embrace evidence-based practices (Mears, 2010).
The steps that need to be taken to embrace the Second Chance Act are that evaluation research needs to be continually conducted on the programs funded by the act. It can be said that, “...the systematic use of evaluation research can lead to less bad policy and more good policy” (Mears, 2010, p.7). Fortunately, it seems that the Second Chance Act was written with research-based practices in mind. For instance, in a competitive grant announcement for the Second Chance Act, it was stated that, “Within the context of this initiative, “reentry” is not envisioned to be a specific program but rather an evidence-based process that begins with initial incarceration and ends with successful community reintegration” (Bureau of Justice Assistance, 2009, p.2). Although the Second Chance Act is still “young” and widespread evaluations of its effectiveness on reducing recidivism are premature, some evaluations of the legislation do exist. For instance, D’Amico, Geckler, Henderson-Frakes, Kogan, and Moazed (2013) conducted an interim evaluation of the act and found some problem areas that need to be addressed (e.g. it was found that a challenge of developing strong projects was the coordination of partner services). To practically and successfully implement the programs and services under the Second Chance Act, research needs to continue to take place and programs/projects that have been shown to be successful through this research need to be embraced. Finally, one of the main measurable performance outcomes of the Second Chance Act is the goal of a 50% reduction in recidivism rates after five years of the act’s inception (O’Hear, 2007; Willison et al., 2013). Evaluation research needs to be conducted to see the degree to which this goal is met.
Approximately 95% of incarcerated individuals will reenter society at some point (Bureau of Justice Assistance, 2009). Further, it was found that in 2004, 43.3% of prisoners who were released were re-incarcerated within three years (Pew Center on the States, 2011). Many prisoners who are released have substance abuse, mental health, and other problems that hinder them from successfully reentering into society. It seems that it is time to continue to move away from “tough on crime” legislation and embrace rehabilitative-type policies, such as the Second Chance Act. For instance, in recent years, states that have embraced a rehabilitative strategy to reduce recidivism have seen a reduction in recidivism rates. For example, Kansas established earned time credits for individuals who completed educational, vocational, and treatment programs and saw a 15% decline in recidivism rates from 2005 to 2007 (Justice Center, 2012). We can either continue to invest billions of dollars to lock up individuals and temporarily mask the problem or we can focus on rehabilitation and try to actually fix the problem.
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