Vol. 11 No. 6 (June 2001) pp. 314-319.

PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU'RE OUT IN CALIFORNIA by Franklin Zimring, Gordon Hawkins and Sam Kamin. Oxford: Oxford University Press, 2001. 244 pp. Cloth $30.00. ISBN: 0-19-513686-1.

Reviewed by Edward Rubin, Law School, University of Pennsylvania.

California's "Three Strikes and You're Out" law, enacted by the legislature in 1994, and subsequently adopted by a ballot initiative, might appear to be just one of many so-designated laws enacted by various states and the federal government during the 1990s. However, the operational impact of the California law is unique. To begin with, it greatly increases penalties for criminals with a single prior conviction, or "strike," as well as those with two prior convictions. Second, it allowed the non-violent offense of burglary to be counted as a strike for sentence enhancement purposes. Moreover, any felony, such as receiving stolen property, motor vehicle theft, or possession of marijuana, counts as the third strike, subjecting the offender to a sentence of twenty-five years to life (pp. 7-11, 18-21). As a result of these distinctive features, the California law has produced a massive impact on actual incarceration practices, and threatens to produce an even more massive impact. Whereas the federal three strikes law has generated a mere 35 sentences, California's has generated 40,000--between 92 and 94 percent of three strike sentences in all American jurisdictions that had enacted such laws (p. 20). It is a rare example of a criminal law that "bites louder than it barks" (p. 226, see p. ix).

Franklin Zimring, Gordon Hawkins and Sam Kamin's major study of this unique legislation operates on three different levels. First, it provides an empirical assessment of the legislation's impact. Second, it analyzes the political forces that generated the legislation. Third, it connects its empirical and political account to general considerations about the nature of modern democracy. The result is a volume that is, quite simply, required reading for anyone interested in crime policy in California, the United States in general, or any modern democratic nation.

The authors provide an empirical assessment of the three strikes law by using samples of felony arrests in three California cities before and after the law took effect (pp. 35-43). It is true, they note, that crime rates declined during this period, as proponents of the law have been quick to point out. However, this decline simply continued the general decrease in crime rates that began late in 1991, long before three strikes was enacted or even debated in California (pp. 87-88). Could the three strikes law have been responsible for sustaining a decline that would otherwise have leveled off, the authors ask. To answer this question, they proceed to examine the law's operation.

A three strikes law can affect the crime rate by means of either incapacitation or deterrence, that is, it can either keep individuals imprisoned who would otherwise be out on the streets committing

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crimes, or it can persuade those already on the streets that "crime does not pay." The evidence refutes the possibility that three strikes produced a significant incapacitative effect, however; since 1989, California's prison population has increased at a relatively even pace. "There was no discontinuous shift in incarceration trends that tracked the change in crime trends" (p. 93). With respect to deterrence, the authors found that 86 percent of all those arrested for felonies in 1993 had no strikes on their record, and would thus be unaffected by the law, 9.6 percent had one strike, and only 4.3 percent had the two strikes that would subject them to the law's most severe effects (p. 43-46). Thus, even if the three strike provision deterred perfectly, it would produce only a 4.3 percent decrease in crime, or a 3.3 percent decrease when juvenile arrests are included, which is a far cry from the 17 to 40 percent decreases claimed by its proponents (pp. 43-46, 95- 96).

In fact, the actual deterrent effect of the law is much lower than even these delimited possibilities suggest. The authors' examination of the crime rate in their three city sample indicates that there was no statistically significant decline in the proportion of those arrested who were eligible for second strike penalty enhancement. For those eligible for third strike enhancement, the results were similar, although a bit more ambiguous. By some tests, there was also no statistically significant decline; by others, there was a statistically significant decline, but it amounted to just over eight tenths of one percent (pp. 97-99).

Why was the impact of this draconian law so modest? One reason may be that criminals do not possess the incentive structure that the proponents of the law assume. Another is that the law is not being implemented according to its terms. Three strikes and you're out joins the earlier enactment of mandatory sentencing in California as an effort to limit the discretion of judicial and administrative authorities over the length of criminal sentences (pp. 24-27). However, this effort did not succeed. Although the discretion of parole boards was virtually eliminated by the mandatory sentencing law, and the discretion of judges partially limited by three strikes, prosecutors continue to exercise substantial discretionary authority. Although second- strike offenders outnumber third strike offenders by a ratio of 2.66 to 1, second strike penalties were nine times as frequent as third strike penalties. Apparently, many prosecutors were unwilling to charge arrestees with a third-strike offense because the penalties that would result would have been such an extreme departure from both prior practice and their own intuitive sense of justice (pp. 63-84).

Zimring, Hawkins and Kamin's empirical assessment of the three strikes law meets the highest standards of academic excellence. In an area drenched with emotionalism, the authors have produced a study that is analytically incisive in setting up it categories, conscientious in collecting its data, and judicious in reaching its conclusions. It is also highly readable. Instead of trying to impress their readers--or confuse them--with masses of data and complex statistical tests, they explain their findings in a straightforward, step-by-step manner that, far from over-simplifying their analysis, reveals its true sophistication. They are even gracious enough to apologize (unnecessarily) at the one point where they present several different bodies of data in a single table (p. 76).

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Having carefully assessed the impact and operation of three strikes, Zimring, Hawkins and Kamin proceed to explore the political forces that generated this unique legislation. The identity of these forces is not difficult to determine, but it is certainly unusual. A crime victim and a complete political outsider drafted the statute as a ballot initiative. Although it obtained support from the prison guard's union and the National Rifle Association, it was general public support, galvanized by the dramatic kidnap-murder of Polly Klaas, which impelled the legislators and the Governor to enact a law that tracked the ballot initiative (pp. 4-7, 169-71). As the authors argue, the only rationale that underlies the disparate provisions of this enactment is the desire to increase the time that convicted criminal serve in prison, without regard to incapacitation, deterrence, or any other instrumental principle (pp. 22, 115-24).

What seems to have motivated the public, according to the authors, was an emotional antagonism toward criminals combined with a distrust of government (pp. 160-69). It was the interaction of these attitudes led to such harsh results. Because they distrusted government, people favored mandatory sentences that could not be varied by judicial or administrative discretion. These sentences tended to be set in response to the worst case in each category; in the absence of discretion to modify the sentences, "the aggregate amount of punishment a citizen will choose when restricted to a simple standard will exceed the total level of punishments the citizen would select individually for each offender in the class" (p. 195, see pp. 194- 200). The process that mandatory sentencing began was then exacerbated by the three strikes law, as the public's emotional antagonism toward criminals was expressed in a statute whose consequences exceeded its advertised effects (pp. 194, 200-03). Prosecutorial discretion, the only form of expert discretion that remained in force, was able to modify these consequences, but only to a limited extent.

The role of public emotionalism in generating the three strikes law is apparent to anyone familiar with the relevant events, and probably obvious even without any such familiarity. However, Zimring, Hawkins and Kamin have performed a great service by getting behind this emotionalism and exploring the interaction of popular attitudes with the structural elements of California's criminal justice system. There are other stories to be told here, of course; more might be said about the role of lobbying organizations, particularly the crime victims groups, and more information might be provided on the internal operation of the legislature. The authors focus on one aspect of a complex political situation, but they present that aspect with originality and analytic rigor.

From these observations, the authors then proceed to their third level of analysis, which concerns the nature of decision making in a democratic polity. Increasing distrust of government, the authors argue, led to "the shift of power into institutions more responsive to democratic pressure" (p. 179), in particular the legislature and the referendum process. This shift possessed an ineluctable tendency to generate excessive punishments, that is, punishments that are disproportionately harsh, given the nature of the offense, and that do not serve to control crime (pp. 189-92). The reasons for this trend toward excessive punishment are absence of political compromise in the democratic process and its domination by political symbolism, as well as the previously described tendency to assimilate

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all criminals to the worst case in their category (pp. 192-95). In other words, the "selection of penalty levels will err on the high side, as well as treat crimes of different levels of severity in a troublesomely similar fashion" unless the power to set punishments is shifted "to government actors protected from direct democratic controls" or "a wide discretion for the particular application of the law at the individual level" is maintained (p. 195)

As an example of advantageous insulation of a decision making function from democratic processes, the authors propose the central banking functions of the Federal Reserve System (pp. 204-09), without commenting on whether the Fed's bank examination, holding company regulation, or consumer protection roles merit equal insulation. The main justification for the Fed's insulation, they argue, is that democratically responsive decision making has an inherent tendency to produce undesirable levels of monetary inflation, just as such decision making has the inherent tendency to produce undesirable levels of criminal sentencing inflation. Expert sentencing commissions can provide insulation in the crime policy area, just as the Fed does in the area of monetary policy. "[T]he systems that replaced parole with a new independent institution have been more successful in fighting off legislative assaults than have those determinate systems that created new sentences with no new institutional forces" (p. 213). However, the ultimate solution to the sort of institutional distortions that produced California's three strikes and you're out law, in the author's view, is to restore people's faith in government and governmental expertise (pp. 214-15, 228-32).

This analysis is evocative, albeit preliminary. Zimring, Hawkins, and Kamin as strongly committed to the Madisonian idea of indirect democracy (Dahl, 1956) although they do not identify their proposal as such. Their repeated theme is that government decision makers need to be protected from the full force of public opinion, and they seem to favor greater reliance on expert commissions (Breyer, 1993). This leaves open some serious questions about government performance that have been raised by public choice scholars (Mueller, 1989) as well as more general doubts about the value of administrative expertise (Stewart, 1975). It also leaves open many interesting questions about the nature and extent of the insulation mechanism. The Federal Reserve is a relevant but hardly unique case of insulation; others include the federal courts, independent agencies and civil service employees within executive agencies. All these modes of insulation are only partial, moreover, and other questions remain about the way that partially insulated administrators should integrate their own judgment with the political influences that inevitably continue to operate (Rubin, 1999).

Another open question is how far the authors are prepared to push their Madisonian fear of the populace. The book contains some strong statements about the need for a democratic government to "protect itself from public opinion" (p. 195). This seems to be based primarily on the authors' concern, reminiscent of Murray Edelman's work (1988, 1964) about the emotional character of public opinion and on people's taste for, and vulnerability to political symbolism. Yet, they do not share Edelman's pessimism or join his post-modern critique. Rather, they seem to be making a false consciousness argument, asserting that people would not really favor such punitive legislation if they were able to

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get past the symbolism and understand the actual impact of the legislation upon relatively minor criminals (pp. 182-95). It would be nice if this were true, that is, if one could favor mechanisms that shield policy makers from popular opinion, and yet simultaneously reflect popular opinion more accurately. However, it will not always be true; there will always be some hard cases where direct and indirect mechanisms point in different directions. If one is constructing a theory of democratic decision making, one must be prepared to choose between insulated experts and popular preferences.

Beyond these questions about the operational aspects of their position, the authors' enthusiasm for Madisonian democracy is intriguing, at the theoretical level, because it constitutes a direct confrontation with ideas about participatory democracy, direct democracy and legislative responsibility, perhaps the leading themes in modern democratic theory (Rubin, 2001). Participatory and deliberative democracy overlap but they are not the same; the first focuses on the quantity of citizen involvement, while the second focuses on its quality. To meet the participatory standard, all citizens must be politically active in some manner (Barber, 1984; Selznick, 1992); to meet the deliberative standard, citizens need do nothing more than listen, talk and vote, but they must do so in rational terms (Fishkin, 1991; Habermas, 1996). The legislative responsibility theme is related to both, although somewhat different in tone. Its principal argument is that basic policy choices should not be delegated to administrative agents, but made by a popularly elected and popularly responsive legislators ( Lowi, 1979; Schoenbrod 1993).

Zimring, Hawkins and Kamin implicitly challenge all these themes. Their challenge to participatory democracy involves the distortions that result from the role of citizens groups, such as the crime victims' organizations, in the legislative process. Their challenge to deliberative democracy is based on the irrationality of citizens when voting on sentence enhancement initiatives or in favor of legislators who support such initiatives. Their challenge to the legislative responsibility theme is embodied in their observation that legislation creates broad ill-fitting categories, and cannot vary or individualize these categories without the intervention of judicial and administrative agents. These challenges are well worth taking seriously. There is an optimistic, almost elegiac tone to much of the participatory democracy, deliberative democracy and legislative responsibility literature that betokens a certain lack of realism. This book reveals an irrational, confused, vindictive populace that the theorists may not be prepared to live with. Although Zimring, Hawkins, and Kamin do not directly engage these theorists, their book provides a case study that warrants serious consideration by anyone who want to make government more responsive to "the people," dispense with policy experts, or dismantle major elements of the administrative state.

REFERENCES

Barber, Benjamin. 1984. STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE. Berkeley: University of California Press.

Breyer, Stephen. 1993. BREAKING THE VICIOUS CIRCLE. Cambridge, MA.: Harvard University Press.

Dahl, Robert. 1956. A PREFACE TO DEMOCRATIC THEORY. Chicago: University of Chicago Press.

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Edelman, Murray. 1988, CONSTRUCTING THE POLITICAL SPECTACLE. Chicago: University of Chicago Press. Edelman, Murray. 1964. THE SYMBOLIC USES OF POLITICS. Urbana: University of Illinois Press.

Fishkin, James 1991. DEMOCRACY AND DELIBERATION: NEW DIRECTIONS FOR DEMOCRATIC REFORM. New Haven: Yale University Press.

Habermas, Jurgen. 1996, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY. Trans. William Rehg. Cambridge, MA.: MIT Press, 1996.

Lowi, Theodore. 1979. THE END OF LIBERALISM, 2d ed. New York: W. W. Norton.

Mueller, Denis. 1989. PUBLIC CHOICE II. Cambridge: Cambridge University Press.

Rubin, Edward 1999. "Introduction," In MINIMIZING HARM: A NEW CRIME POLICY FOR MODERN AMERICA, ed. E. Rubin. Boulder, CO: Westview Press.

Rubin, Edward. 2001. "Getting Past Democracy, "UNIVERSITY OF PENNSYLVANIA LAW REVIEW 149: 711.

Schoenbrod, David. 1993. POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION. New Haven: Yale University Press.

Selznick, Philip. 1992. THE MORAL COMMONWEALTH: SOCIAL THEORY AND THE PROMISE OF COMMUNITY. Berkeley: University of California Press.

Stewart, Richard 1975. "The Reformation of American Administrative Law," HARVARD LAW REVIEW 88: 1667.