Intended and Unintended Effects of Three Strikes Laws:

A new paper from NBER on the incentives for criminals created by California's "Three Strikes" law:

"I'd Rather Be Hanged for a Sheep than a Lamb: The Unintended Consequences of 'Three-Strikes' Laws"

NBER Working Paper No. W13784

RADHA IYENGAR, Harvard University - Center for Government and International Studies, National Bureau of Economic Research (NBER)

Strong sentences are common "tough on crime" tool used to reduce the incentives for individuals to participate in criminal activity. However, the design of such policies often ignores other margins along which individuals interested in participating in crime may adjust. I use California's Three Strikes law to identify several effects of a large increase in the penalty for a broad set of crimes. Using criminal records data, I estimate that Three Strikes reduced participation in criminal activity by 20 percent for second-strike eligible offenders and a 28 percent decline for third-strike eligible offenders. However, I find two unintended consequences of the law. First, because Three Strikes flattened the penalty gradient with respect to severity, criminals were more likely to commit more violent crimes. Among third-strike eligible offenders, the probability of committing violent crimes increased by 9 percentage points. Second, because California's law was more harsh than the laws of other nearby states, Three Strikes had a beggar-thy-neighbor effect increasing the migration of criminals with second and third-strike eligibility to commit crimes in neighboring states. The high cost of incarceration combined with the high cost of violent crime relative to non-violent crime implies that Three Strikes may not be a cost-effective means of reducing crime.

Well, so long as they're hanged. A few serious crimes do less harm to society than an endless sequence of less serious ones.

The problem of criminal migration to states without 'three strikes' legislation is easily solved by those states' legislatures.
3.15.2008 9:37am
There is one more effect. Cal exports its inmates to other states to serve, and small time crooks demand to be sentenced to jail knowing they will be let free for lack of space.

My shares in the Carlyle Group' Prison Industry doing fine.
3.15.2008 10:24am
PatHMV (mail) (www):
The "beggar thy neighbor" effect is easily resolved by the neighbors...
3.15.2008 10:30am
Turk Turon (mail):
I've only read the abstract but a couple of questions occur to me:
1) How did the authors calculate the increased severity of the crimes by second-strike and third-strike eligible criminals? By comparison to first-time California offenders? Or by comparison with once- or twice-convicted criminals in neighboring states that have no "three-strikes" law?
2) How did the authors assess the effects of the absence of "fourth-strike" eligible criminals, since they're all (presumably, this is the left coast after all) serving long prison sentences mandated by the "three-strikes" law?
3) Did the authors view the "migration" of violent criminals to other states as a positive factor for reduction of violent crime in California?
3.15.2008 10:55am
LTEC (mail) (www):
"Three Strikes" is obviously in no way optimal. A more rational law would be one that gave worse penalties for worse crimes, and locked people up forever in many cases on a bad first offense. But such laws are not feasible politically -- for example, they involve sentencing guidelines that many people hate in principle and that have their own problems in practice.

People hate crime but can usually be talked out of really doing something about it. On the other hand, they love baseball. And that is why we have "Three Strikes" laws.

Also, the argument "if we give as bad a sentence for crime X as for the worse crime Y, then people will do Y instead of X" is usually bogus. Unless you believe in infinite gradations of torture, this "problem" is unavoidable, and is just one of the many ways people allow themselves to be talked out of giving serious penalties for serious crimes.
3.15.2008 11:16am
From what I heard of public discussions in CA during the time of 3 strikes adoption, I don't think the "beggar thy neighbor" effect was unintended.

The prevalent sentiment among proponents seemed to be "if people with violent felony priors leave the state, that's the point".
3.15.2008 11:20am
treebeard (mail):
I agree with those who say that the "beggar thy neighbor" doesn't seem such like an unintended result, or a very bad one.

If a potential murderer in California moves to Nevada or Oregon to escape harsh punishments in his home state, it is of course a negative to those other states. But the legislators in California are not responsible for the harshness or leniency of the states next door, nor do they have to answer to residents of those states. The legislators in California are responsible for providing a safe and secure environment within that state.

If a person from California moves to Nevada or Oregon or any other state, and kills someone, that is of course a tragedy for the victim and family. But that shouldn't be blamed on California, it should be blamed on the murderer, and if the state (say Nevada) has more lenient penalties, and that is one reason why the murderer acted in Nevada and not California, the blame falls on those Nevada legislators who are responsible for their own laws on punishment and sentencing.
3.15.2008 11:37am
another anonVCfan:
I'm shocked--shocked!--that designing criminal-law policy around baseball metaphors had unintended consequences.
3.15.2008 11:58am
Dave N (mail):
While the number of California prisoners grew by 428% between 1977 and 2004, the percentage growth of prisoners in neighboring states is even greater:

Nevada: 983%
Arizona: 963%
Oregon: 453%

all state prisoners: 496%
Federal prisoners: 555%

Interestingly, Nevada, with a population similar to Utah and New Mexico (all 3 states have 5 electoral votes), had a prison population at the end of 2004 that almost equalled the combined prison populations of Utah and New Mexico (11,280 vs. 12,027).

In Nevada's case, its close proximity to California is certainly a factor, but so is a national advertising campaign that claims "What Happens in Vegas Stays in Vegas" and explosive growth (up approximately 400% between 1970 and 2000). The same explosive growth (though not on the same scale) has deeply impacted Arizona, and probably is a bigger factor in Arizona's prison growth than in-migration by California felons.

I would note that while Oregon borders California, it is much easier to get from southern California to Phoenix or Las Vegas and from northern California to northern Nevada than it is to get from any major population center in California to Portland (or anywhere else in Oregon for that matter).

In any event, I would also note that both Arizona and Nevada seem to do a pretty good job of locking up offenders--and neither is afraid to sentence lawbreakers to long, long periods of incarceration.
3.15.2008 12:31pm
Convincing criminals to go to states with lighter sentencing rules seems to be a feature rather than a bug.
3.15.2008 12:31pm
PostNoBill wins the thread.
3.15.2008 12:38pm
Redlands (mail):
Government's desire to be truly cost effective seems to be nonexistent or at least very selective. One of my common tax payer laments. I suppose the people of California may one day decide the price is too great and vote a change by way of initiative, but it looks like the tipping point hasn't been reached yet.
3.15.2008 12:54pm
ed42 (mail):
Justice demands that the victim be made whole (as far as possible). Forget three strikes, forget "punishment". Make the criminal a slave the victim is right again.
3.15.2008 1:14pm
Mac (mail):

Turk Turon wrote,

1) How did the authors calculate the increased severity of the crimes by second-strike and third-strike eligible criminals? By comparison to first-time California offenders? Or by comparison with once- or twice-convicted criminals in neighboring states that have no "three-strikes" law?

My thoughts exactly. How do you measure what would have happened without this law and how do you know that criminals are more violent because of this law? Did anyone catch the rap sheets on the suspects in the murder of the UNC (if I have the correct murder in mind) co-ed? They wouldn't have been on the street to gun her down in Calif.
3.15.2008 1:26pm
jvarisco (www):
A 28 percent drop in crime is a PROBLEM?

Even if you have 9% more violent offenses, you've got a third less offenses total - which means there are fewer violent offenses now. And if other states get more criminals because their laws are more lenient, well, that pretty much shows the system is working as intended.
3.15.2008 1:28pm
Mac (mail):
This from FOX NEWS web site this morning:

DURHAM, N.C. — An autopsy report says a Duke University graduate student found dead in his apartment died instantly after being shot point-blank in his forehead.

The Office of the Chief Medical Examiner released an autopsy Friday for Abhijit Mahato. The 29-year-old computational mechanics student was found in January, shot to death in his apartment a few blocks south of Duke's campus in Durham.

Authorities have charged 17-year-old Laurence Lovette and 19-year-old Stephen Oates with murder in his death. Lovette is also charged with murder in slaying of University of North Carolina student body president Eve Carson.

And, re my previous post, they wouldn't have been on the street to gun him down either.
If you look at their rap sheets and these crimes, at least two people and who knows how many more will come out, have been totally and utterly failed by the criminal justice system.

You wonder why people want a three strike law? Now, does RADHA IYENGAR look at the crimes that could have been prevented by this law or if other states such as North Carolina had this law?
3.15.2008 1:42pm
Another point is that is there are 28% fewer crimes, that's a whole lot of police time that can be devoted to stopping the 9% extra violent crimes.
3.15.2008 2:22pm
Another factor that was in no way considered was the bad habit of California trial judges in eliminating the strike component in sentencing. Yes, they can do that. Any judge, with a very loose set of restrictions, can waive the strike on first and second strike offenses when sentencing for the third crime.

This not only adds to to the level of potential recidivism and reduces the number of times the three strikes law would otherwise be applied, but it also undermines the certainty of permanent incarceration that offenders might otherwise have, further reducing the potential effectiveness of the law.

On the beggar thy neighbor front, if felons are fleeing to neighboring states, I absolutely guarantee that Mexican nationals with two strikes are fleeing to Mexico as well. And that is an unmitigated good thing.
3.15.2008 3:16pm
Christopher Cooke (mail):
I too am curious about how the author measured certain items cited in the report. I have only heard anecdotal evidence of the Third Strike's law encouraging someone to commit a more violent crime when he knew he would be put away for life under the Third Strike's law, e.g., a petty criminal shooting someone rather than being apprehended, and mentioning how it was his third strike, so it didn't matter. Kind of like the Hollywood movie scenario where a wanted killer says "You are never going to take me alive."
3.15.2008 3:25pm
Patterico (mail) (www):
"First, because Three Strikes flattened the penalty gradient with respect to severity, criminals were more likely to commit more violent crimes. Among third-strike eligible offenders, the probability of committing violent crimes increased by 9 percentage points."

Well, I'd be very interested to know whether the group of "third-strike eligible offenders" considered by the study included the "third-strike eligible offenders" who were already in prison.

In other words, did the author factor into that equation the violent crimes that *weren't* committed by violent criminals who are locked up because of the Three Strikes Law?
3.15.2008 5:00pm
Dave N (mail):

I am not quite sure what you are getting at. You point to a North Carolina homicide where the accused assailants are ages 17 and 19. Whether or not North Carolina has a three strikes law would seem irrelevant, since it appears that the both the 17 year-old and the 19 year-old have zero strikes (were they in California).

The article I could find regarding these two indicates that Lovette (the 17 year old) only has a misdemeanor conviction, that would likely not count as a strike, even in California. The other one, Oates, is not listed as having a prior record. The North Carolina Department of Correction has no record of a 19 year-old named Anthony Oates (there is a 47 year-old former prisoner with that name).

So please, what exactly is your point?
3.15.2008 7:42pm
To those who are interested in the methodology, I will offer a quick and dirty synopsis. If you have any formal econometric or statistical training, I apologize as this will probably be a little too dirty for you (I refuse to discuss instrumental variables and endogeneity on a law blog).

Anyways, their data set is a sample of people arrested in 3 California cities from 1990-1999 along with their prior arrest histories. They are trying to measure the marginal effects of recidivism, which means that the 9 percent and 28 percent effects quoted above are only with respect to those eligible for the strikes compared to the "control" group. All these people have been arrested before, the study just looks at how that next crime varies based upon the eligibility to face the second and third strike penalties. So there is not a 28% fall in crime, the people who are eligible for the third strike penalty are that much less likely to recidivate.

They use a quirk about the law to establish a "control" group. Two people who have committed the same crimes will not necessarily have the same strike eligibility. The ordering of the crimes matters. After a "trigger" offense, every felony thereafter counts as a strike. So if a person commits a trigger offense then another felony, it counts as the second strike. If the person commits the other felony first, and the trigger offense second, the trigger counts as the first strike.( I hope that makes sense) This way we can see the deterrent effects among those who commit the same crimes, but who face different penalties (while also controlling for the usual covariates: age, race, etc. as well as something that estimates the frequency of crimes committed).

They use the same method to check the severity of the next crime and the location of the next crime. They find that those who are subject to the second and third strike penalties are more likely to commit a violent offense that the control group and more likely to commit crimes out of state, conditional on recidivating at least once.

If this is revealing to somebody, great. I realize that, like any econometric study, there may be some questionable assumptions in this paper. I am not judging either way. Like my title says, I am a first year economics grad student, which doesn't make me an expert in anything except stress. I do have access to NBER papers though, and this was a nice diversion from reading micro theory. Thanks.
3.15.2008 10:45pm
Mac (mail):

The article I could find regarding these two indicates that Lovette (the 17 year old) only has a misdemeanor conviction, that would likely not count as a strike,

Dave N,

Of course, I can't find the first article about them that had more detail, but this is copied off the Fox News web site quoting an AP article from yesterday. There may not be much on the younger guy, as I looked, but there appears to be a bunch on Lovette. The article I can't find, said Lovette was out on probation from a felony conviction, did all sorts of other crimes, while on probation, and was never rearrested. Here is an excerpt from the article from yesterday.

"Cline said she asked Brown for the high bond because Lovette is already facing trial on numerous other charges. Court records show that between Mahato's slaying in January and Carson's death in March, police arrested and changed him with felonies ranging from burglary to car theft to resisting arrest."
3.15.2008 11:51pm
Eli Rabett (www):
This was discussed even when the laws were being considered. It is not a new idea.
3.16.2008 12:53am
Dave N (mail):

Don't get me wrong, if I were a North Carolina prosecutor, I would happily go after a death sentence for Lovette based on the facts as I understand them--except that under Roper v. Simmons such a sentence is unconstitutional since Lovette is under 18.

As it is, if he is guilty, throw him in prison and throw the key away. Let him die there at an old, old age. However, I still do not find him a poster child for 3 strikes laws.
3.16.2008 2:32am
Brett Bellmore:

Among third-strike eligible offenders, the probability of committing violent crimes increased by 9 percentage points."

But if third strike eligible offenders are reduced by 28%, and the probability that they commit violent crimes only increased by 9%, then you've still got a 22% reduction in violent crimes over no third strike law. So third strike is reducing violent crimes, too, just not as much as it reduces less violent crimes.

This is NOT a knock against third strike, as far as I can see.
3.16.2008 10:22am
In the "beggar thy neighbors" category, Washington (not a direct neighbor) recently passed a law making at least some out-of-state felonies count towards the Three Strikes. Having two in CA and committing the third in WA is not a safe bet.
3.16.2008 12:39pm
Cornellian (mail):
The federal sentencing guidelines are enormous, literally thousands of pages long. How many people really know what kind of sentence you're looking at for a federal offense? How many people have even looked at those guidelines other than federal judges and a handful of lawyers practicing in that area?

It is important for the law to be clear and understandable to the extent that that is possible, and it seems to me that a major benefit of a "three strikes" law is that it is clear, simple and readily understandable to people with no knowledge of the law or the criminal justice system. How much of a deterrent will criminal law be if no one has any idea what kinds of sentences are associated with which kinds of offenses? Everyone has an intuitive feeling that killing someone will incur a longer sentence than stealing something, but I've seen lots of stories where jurors were astonished by the sentence handed down after they delivered a guilty verdict.
3.16.2008 1:02pm
Mac (mail):

However, I still do not find him a poster child for 3 strikes laws.

Dave N. ,

In taking a closer look, I think you may be right. He seems to have committed so many crimes so fast that the 3 strike law would not have been able to keep up with him.

However, he should have been in jail for committing so many crimes in such a short period of time even without the 3 strike law especially if he was violating his probation as I read in another article. However, he is not a poster child for the 3 strike law, as you say. We may need a new law to cover a guy like him.
3.16.2008 1:19pm
adam C (mail):
What if all the nonviolent post-second-strike offenders are making the smart decision to go straight, while the irredeemable psychopaths keep doing what they do until they are sentenced to either life or death?

Nah, couldn't be...
3.16.2008 3:34pm
TGGP (mail) (www):
David Friedman explains the issue here. Don Boudreaux has a similar take here.
3.16.2008 6:01pm