Larry Dayries ordered and ate two sandwiches and then walked out of the cafe without paying. A security guard tried to run after Dayries who threatened him with a 3 inch knives before taking off. A few weeks later, Dayries was arrested and sentenced to 70 years of prisons for aggravated robbery with deadly weapon. Prosecutors asked for such a harsh sentence because of his prior convictions for burglary and theft.
Dayries was sentenced under the habitual offender law, otherwise known as the three strikes law, which raises the minimum sentence that can be imposed if the offender has past felony convictions.
Historic context
Three strikes law is the product of a series of reforms underwent by the criminal justice system since the 1970s as a result of public pressure asking for tougher responses to crime and stricter measures for repeating offenders. Responses in that sense saw the emergence of the so called “war on drugs” with an increase in the length of prison sentences. Among this general change experienced by the criminal justice system, in 1994 the Violent Crime Control and Enforcement Act was enacted by Congress. One of the most significant measure of the law was the mandatory life imprisonment for criminals convicted of three violent felonies or drug offences if the third conviction is a federal offence. This provision has quickly been renamed three strikes law in comparison with baseball where a batter against whom three strikes are recorded strikes out.
Towards a new penology
The introduction of the three strikes law saw the emergence of a new penology shifting the traditional penological concerns focusing on the individual offender to an actuarial model concerned with the management of aggregates. As a result, the new penology has brought about three major disruptions. First of all, we witness the emergence of new discourses whereby the notions of probability and risk replaces previous ideas of clinical diagnosis and retributive judgment. Secondly, the traditional aim of punishment at rehabilitation of the offender has been replaced with an incapacitation view of the sentence focused on ensuring efficiency and control. Finally, the individualisation of the sentence and the customisation of the treatment are abandoned in favour of targeting the offender not as an individual, and as such considering his peculiarities and characteristics, but rather solely as an aggregate.
The new paradigm change can therefore been understood as a shift to the creation of criminal justice policies focusing on managerial goals with the use of actuarial methods relying heavily on statistical decision theory, operation search techniques and system analysis to implement cost effective and efficient penal policies.
The three strikes law perfectly encapsulate the neoliberal and management oriented penology which rejects the traditional rehabilitative purpose of punishment in favour of penal principles of incapacitation which treats crime as a product in the managerial perspective and acknowledges how some crimes are produced exclusively by exceptional people, as some commodities are. Therefore by incapacitating some of those people, production (i.e crimes) is reduced.
McDonaldization of the Criminal Justice System
Such a corporatist view of the criminal justice system – predominantly US focused but rapidly expanding to other western countries – has been labelled by Bohm as McJustice and it is part of a larger trend known as McDonaldization.
The term McDonaldization has firstly been used by George Ritzer to refer to “the process by which principles of the fast food restaurant are coming to dominate more and more sectors of American society as well as the rest of the world”. The concept of McDonaldization is based on four main elements: efficiency, calculability, predictability and control that makes the business model highly productive and profitable.
Let’s see how these four elements can be applied to the three strikes law
- Efficiency: the term efficiency indicates the tendency to chose good optimus means to a given end. Applied to three strikes law, the measure is efficient in the sense that it is to be considered the achievement of the maximum possible incapacitation effect for dangerous offenders.
- Calculability: defined as the tendency to quantify and calculate every product and to use quantity as a measure of quality. Three strikes law makes punishment easily calculable (the punishment is determined by following sentencing guidelines). The substantial increase of length of the sentence and the idea that criminals stay behind bars for longer, is perceived by politicians and citizens as an improvement of the quality of justice
- Predictability: means to know what to expect in all situations at all times. Three strikes law is predictable because punishment is imposed by sentencing guidelines and there is virtually no room for judicial discretion, as a result punishment is known and standardised and variations in sentencing reduced or eliminated.
- Control: replacement of human technology with non human technology to reduce margins of error. Three strikes law increases control thanks to the annulment of judicial discretion, that is to say human judgment and the compulsory use of sentencing guidelines grids and algorithms to determine punishment.
Is three strikes law really effective?
What was designed to be an effective measure to reduce crime by incapacitating those considered a threat to society, is indeed deeply flawed and ineffective.
Studies and statistics demonstrate no significant drop in crime rates since the introduction of the law, while there is solid evidence to suggests that incapacitating measures aimed at longer prison sentences have been responsible for overcrowding conditions of US penitentiaries and that the abandonment of individualised rehabilitative measures has not corresponded to higher efficiency.
In addition, McDonaldization – despite presenting itself as a model championing efficiency and profit – reveals some serious negative consequences.
In the long term three strikes law is inefficient. Just as fast food restaurants are meant to be fast but often people have to wait in line to be served, in the criminal justice system three strikes law contributes to the clogging up of courts causing delays to civil and criminal cases. Furthermore, although the measure is aimed at reducing violent crime, most of the offenders are brought into the system for non violent – most drug related offences that would require rehabilitative programs to effectively re-educate the offender and not merely locking them top in a prison cell.
In addition, increasing the length of punishment, in the long term, will result in older prison population with the consequence of higher healthcare costs.
Finally, the new McJustice model sees the predominant promotion of the idea of “law and order” over justice and it causes a dehumanisation of the offender who is no longer being treated as a person with individual characteristics and peculiarities but as a mere number in the assembly line of a understaffed and overworked judicial system.
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