Current polls show Proposition 36, the initiative to amend the Three Strikes Law to require that the third strike be not just any felony but a serious or violent felony, leading by a significant majority. In a previous post, we provided an analysis of the proposition, concluding that it was a step in the right direction, though we would have liked to see more reforms (including some hope for second strikes and a consideration of the simultaneous strike problem.) Today I’m thinking about the minority of Californians who still oppose Prop 36 and pondering the sources of said opposition.

As my colleague and friend Josh Page argues in The Toughest Beat, the original Three Strikes Law was heavily promoted by the CCPOA–California’s prison guard union–and victim organizations puppeteered by the union. Spearheading the law were families of victims of heinous crimes perpetrated by habitual offenders on parole. The original idea behind the law was not to deter potential criminals from committing crime; if we allow simultaneous strikes to be counted in the same trial, we’re pretty much dismissing the deterrent effect. Rather, the idea was to incapacitate; namely, to identify risky individuals and put them behind bars for life.

A Legal Analyst’s Office analysis conducted in 2004 stated that only a third of the then-Three-Striker population had committed their third strike offense against a person. The remainder two thirds had committed a nonviolent third strike–a drug or a property offense. Moreover, less than half of the Three Strikers had committed an offense that could be considered serious or violent. However, as the report stated, while the third offenses were often not serious or violent (and sometimes, according to distressing news reports, rather petty), third strikers do have more serious criminal histories than other state inmates.

So, let’s look at this from a prism of risk. Does a serious or violent criminal history consisting of two prior offenses predict that more violent might be perpetrated in the future, even if the person’s third offense is actually not a violent one? The answer to that question is fairly complicated. Some criminal offenses are better predictors of risk than others.

I’ve recently read Gavin de Becker’s The Gift of Fear. De Becker is a private consultant, specializing in violence prediction. The book examines various scenarios of violence–death threats, stalking, abuse, violence wrought by fired employees, stranger violence–and strongly advocates that readers pay close attention to their own intuition in situations that feel instinctually wrong or dangerous. De Becker’s point is that, in any given situation, there are many clues that might help a potential victim predict a violent eruption. Some of these clues may be difficult to verbalize, as the potential victim might only notice them briefly, but our intuition works faster than our logic; therefore, the gut feeling in itself, without the verbal articulation of the grounds for danger, is important.

De Becker’s message is well taken in the context of individuals and immediate violence. He is combating many years of socialization that implore us, especially women, to be “nice” and kind to strangers even when we feel something is awry, and the good will that might lead us to discount our instincts as stereotypes which must not be heeded. Being wise, rather than nice, could save our lives, which I think is an important message.

But it would be a big mistake to confound de Becker’s message with a message to vote no on 36 because our instinct tells us that people with two prior violent offenses are dangerous, and here’s why. First, there’s a big difference between predicting imminent violence at the interpersonal, immediate level, and predicting it at the policymaking level as an uncertainty that might occur sometime in the future. For the latter task, one has the luxury of employing statistical predictions that a layperson cannot access in a given situation. Also, assessing a particular situation based on its context is an entirely different task than trying to predict violence without any reference to time, place, and circumstances. The factors that come into play in the latter situation will necessarily be generalized and based on many years of statistical prediction – which is why most parole boards have come to rely on statistical software, rather than on individualized clinical predictions.

Second, it’s important to keep in mind that risk prevention in general only goes one way. Sure, if we lock up all convicts with a criminal history indefinitely we might end up safer; we eliminate the risk of false positives; our pity or compassion would be neutralized and we’d make no predictive mistakes. But what about all the people whom we may be locking up needlessly? And what about first-time offenders, for whom we have no such predictors?

And third, violence prevention is only one factor in designing penal policy. The third strikers we incarcerate for twenty-five years to life have already been punished for their two prior offenses. Retribution and proportionality are also important from a justice standpoint, as is the prospect of hope for release.

Which is why I wholeheartedly recommend The Gift of Fear – and voting YES on 36 – and do not see these messages as contradictory at all.

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