The Orange County Register, like many other newspapers, advocates “reforming” (watering down) California’s “three strikes” law. Their beef with the law, at least according to this editorial, is that while all three “strikes” must be felonies, only the first two are required to be unusually egregious (”serious” or “violent”) felonies. The unsigned editorial endorses Jackie Goldberg’s proposal to require the third strike to be a “serious” or “violent” felony as well, citing unnamed polls that (supposedly) indicate that a majority of Californians support such a “reform.” It also suggests, without providing any evidence, that the existing law is harsher than the one most voters thought they were voting on in 1994.

I think the Register is missing the boat. The purpose of the three strikes law is to protect society from its most crime-prone elements by punishing recidivism, not to provide a punishment that would fit the most recent crime if it had occurred in a vacuum. If a career criminal can’t/won’t stop committing felonies even after after being locked up twice, for two separate “serious” and/or “violent” felonies, then at some point we have say “enough.” Perhaps the third strike wasn’t as serious as the first two, but it’s not chopped liver, either; after all, it was serious enough to have been classified as a felony in the first place. [Yes, I realize that there are some really dumb felonies that shouldn't be felonies at all, but that's a separate issue.]. At this stage, we should be less concerned about the relative severity of strike three than we are with our interest in preventing strike four, which could easily prove to be a repeat of strike one or two.

I’m even less persuaded by the Register’s suggestion that most California voters in 1994 were somehow suckered into voting for a stricter law than they intended. I have not conducted any scientific polls on the subject, but I did conduct a casual, unscientific one last year, which suggested the opposite. Among my non-lawyer friends, associates, etc., nearly all believed that the three strikes law was stricter than it really is. Hardly any of the respondents knew of a serious/violent distinction, and the few who did were also aware that this distinction did not apply to all three strikes. Most assumed that any felony would count as a strike, and a few even thought some misdemeanors counted!

UPDATE: This letter writer (scroll down to heading “Why give two-time offenders a third ’strike’?”) would go further still, by replacing the existing system with “two strikes and you’re out.”