Washington. -- If you're wondering how you managed to miss the debate on something as sweeping as the "three strikes and you're out" law, the reason is probably that the discussion barely took place at all.
President Clinton mentioned it for the first time in his State of the Union speech -- he received a raucous ovation from members of Congress -- and then scarcely mentioned it again. He didn't have to. The provision sailed into a new national anti-crime bill, which the House passed on Thursday.
This spring, in state legislatures from California to Georgia, the bill was introduced one month, passed the next and quickly signed into law by governors of both parties happy to stake out a tough election-year stance on crime. In Annapolis, legislators passed a truth-in-sentencing law requiring convicts to serve 50 percent of their sentence before being paroled and a modified "two strikes" bill that re- quires a minimum of 10 years in prison for the second violent-felony conviction.
The "three strikes" provision that seems certain to become federal law law posits that anyone convicted of a third violent felony be imprisoned, without possibility of parole, for the rest of his or her life.
Opponents say it will significantly expand the prison population, making it older and vastly more expensive to support, while incarcerating petty criminals far past their crime-producing years.
Those in favor counter with a single -- and so far irresistible -- claim: They say the law will dramatically reduce the rate of violent crime that is threatening the fabric of American life.
Which side is right?
Perhaps neither. Maybe both. But at this point, it seems that nobody knows for sure because this approach not only hasn't been discussed fully in this country; it hasn't even been studied very much.
"Three strikes" came on the political world like a tornado. Liberals have expressed disgust that politicians who they say know better have held their noses and voted for it. But elected officials are supposed to be responsive to the public mood -- and the public mood is to do something, anything, about violence.
Historically, the criminal justice system has been as susceptible to being manipulated by the latest 6,8l trends as any American institution.
But "three strikes" is more than a fad. It represents a fundamental shift in the priorities, allocation of resources and goals of the nation's huge penal system.
Perhaps the criminal justice system needs overhauling. But knowing whether three strikes makes sense as an approach is a crucial and under-analyzed question -- especially since the entire approach may be based on a fallacy.
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"First, we must recognize that most violent crimes are committed by a small percentage of criminals," Mr. Clinton said in his State of the Union address.
This is the mantra of the "three strikes" movement.
"When I learned that 6 percent of the criminals commit 70 percent of the crime, I was determined to find a way to target this small group who have proven they don't belong in civilized society," explained Maryland congressman Steny H. Hoyer in introducing his version of the three-time loser law.
"Career criminals actually commit an average of between 187 and 287 crimes per year," added Rep. Bob Livingston, a Louisiana Republican. "The logic is simple: They can't be in two places at once."
But is it that simple? And what is the source of these provocative statistics?
The estimate that 6 percent of the bad guys commit 70 percent of the crime dates to two studies by a University of Pennsylvania criminologist, Dr. Marvin Wolfgang. He researched the arrest records of all the boys born in Philadelphia in 1945 and in 1958.
But "three strikes" advocates have misread Dr. Wolfgang's study. The figure didn't refer to 6 percent of all criminals, but 6 percent of all the boys born that year.
Moreover, nearly one in five boys from Philadelphia had two or more arrests by age 18, showing how problematic it is to pass laws purporting to predict future criminal behavior. "As large as the prison population is today, strategies designed to incarcerate all these high-rate offenders boggles the imagination," said Marc Mauer, assistant director of The Sentencing Project, a critic of "three strikes."
The second common source cited most often by those pushing this legislation is a series of Rand Corp. studies on recidivism done in the late 1970s. This is the source of the estimate that the average career criminal commits between 187 and 287 crimes a year.
But again, those pushing "three strikes" make the same two mistakes: First, they mis-state what the study actually measured. Secondly, they fail to distinguish between discovering what crimes individual inmates admitted committing after the fact and the far more complicated task of predicting criminal behavior before it happens based on previous arrests or convictions.
Rand did once cite the 187-to-287 figure, but those numbers were "averages" that were skewed by the fact that about 10 percent of the inmates committed more than 600 crimes apiece.
"The typical inmate -- the 'median' in the distribution -- reports having committed 15 crimes per year," according a Rand analysis earlier this year.
The most thorough study of recidivism was done in 1986 by the National Research Council, which estimated that "active violent offenders" on the street probably committed 2 to 4 violent crimes per year, while "active property offenders" committed 5 to 10 property crimes per year.
These figures, while hardly as dramatic as those cited by "three strikes" proponents, still are enough to justify public outrage -- and enhanced sentencing for career criminals.
"But," warns Rand, "to substantially reduce the crime rate, we would not only have to increase the number of prison beds, but also increase the fraction of those beds occupied by high-rate offenders. Unfortunately, our ability to predict who these high-rate offenders will be is not very good."
Locking up all three-time losers doesn't require much predictive power, though. This may be the essential appeal of "three strikes."
But such a scatter-gun approach to justice has been criticized from opposite ends of the political spectrum as being at once inhumane and unresponsive to the problem. Inhumane because it raises the specter of prisons full of burned-out 70-year-old men who haven't committed a crime in 40 years. Unresponsive because a 19-year-old sociopath is given too many chances to hurt innocent people before being put away for a long time.
"We shouldn't have to wait for a third set of victims," says Rep. James Sensenbrenner Jr., a Wisconsin Republican.
The most recent FBI crime statistics showed that the overall crime rate has actually been declining slightly. This has not mollified the public, however, or encouraged law enforcement officials much.
This is because the decline is slight, it comes after three years of startling increases during the 1990s -- and it comes on top of a crime rate that already was the highest in the industrialized world.
Also, while crimes against property were down, the crimes Americans fear most -- rape, armed assault and murder -- were not. The murder rate, with some fluctuations, has remained roughly the same for 20 years. But reports of forcible rape have more than doubled in that time, while the population has increased only from 210 million to 255 million. Serious assault has nearly tripled.
In addition, the specter of "drive-by" shootings has become an indelible part of urban America. These crimes happen in big cities, which are media centers, and are often accompanied by the unforgettable pictures in the newspapers of an honor student or a little kid or just some innocent passer-by -- like 10-year-old Tauris Johnson, who caught a stray bullet in the head and was killed last November as he played football in the street near his East Baltimore home.
But the supply of prison cells did not keep up with the demand. Thus, state parole boards, legislatures and prison officials were under pressure -- often from the courts -- to parole inmates, few of whom received anything in the way of therapy or counseling.
The "revolving door" or the nation's state prisons became an issue in the 1988 presidential campaign, and left the electorate with a hair-trigger mentality over news reports about paroled felons picked up for some heinous crime or other.
In the late 1980s, Washington state had a spate of particularly grisly examples.
Their names became virtual household names in the Pacific Northwest: Earl Shriner. Gene Kane. Westley Allan Dodd. Shriner mutilated a 7-year-old Tacoma boy after having been jailed for only 67 days in another attack. Kane abducted, raped and killed a Seattle woman while on parole. Dodd murdered three young boys after he got out.
Fed up, the voters of Washington state ignited a national movement in November, when they passed the nation's first "three strikes and you're out" law by direct ballot.
The first person charged under the new law, Cecil Emile Davis, seemed to validate the judgment of Washington's voters. The day after Christmas, he kidnapped a mentally impaired woman, raped her repeatedly, slashed her throat and threw her down a stairwell to her death.
But potential problems didn't take long to surface, either. One of them came in the form of Larry Lee Fisher, a 35-year-old small-timer, who held up a sandwich shop in Everett. Fisher pointed his finger inside of his jacket to scare a clerk into handing him a few dollars.
This was technically armed robbery -- and his third strike under the new law. His second strike was a similar holdup. His first came when Fisher pushed his grandfather down and took $390 from him. He has never, as far as police know, used a weapon.
Fisher's case made national news and shocked some Washington state residents who had voted for the law. But down police headquarters in Seattle, one police detective listened closely to Fisher's protestations -- and thought he heard an argument from Fisher's own lips in favor of the law.
"They interviewed him on television and he said if he had known [his crime] would have qualified as his third strike, he never would have done it," recalled detective Bob Schilling. "I thought, 'Yes! See, it works as a deterrent.' "
Detective Schilling had also been fielding calls from worried two-time sex offenders, who are required under Washington law to register with the local police department after being paroled.
"It scared the living daylights out of [them]," he said. Some asked Detective Schilling where they could get outpatient treatment before the law took effect.
Seventeen others, he said, voted with their feet in an unwitting endorsement of national legislation.
L "Those 17," Detective Schilling said, "just left the state."
I= Carl Cannon covers the White House for The Baltimore Sun.