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Public Statements

Position Paper - Three Strikes and You're Out of Here

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Three Strikes and You're Out of Here

August 22, 1996

Three strikes and you're out. As California led the way North Carolina followed. Sounds like a good wholesome American rule. It goes with apple pie, the 4th of July and the All Star Game. We all know the rule but how will it really fit in our criminal law.

The idea is that with the third violent act the career criminal will be put away for life. How does it work?

First, the crimes of violence in question may not be what you think. While they include such crimes as murder and armed robbery, they also include a consensual sexual act with the mother's boyfriend, an assault with a gun with intent to kill which completely misses, and an 18 year old wimp delivering marijuana to a 15 year old thug.

Let's see how this works out in practice.

Your fifteen year old is walking home from school one day when accosted by Josephine, the local sixteen year old bully. She demands his lunch money while brandishing a knife. Your son, being the circumspect boy that he is, gives her his money. But being somewhat brash he says, "We'll get you. Don't you know about "three strikes and you're out of here".

Josephine Bully immediately calls her lawyer on her cellphone. She explains the situation carefully. Her lawyer says "Josephine, last year weren't you convicted of having sex with your boyfriend's teenage son. And this year weren't you convicted of encouraging your little sister in an act of prostitution. Those are two strikes. Josephine, you are going to jail for life, my friend, for robbing that boy of his lunch money."

Josephine Bully turns back to your son, Hey you wouldn't tell on me, would you?" He says, "Yes I would". She says, " Sorry, I have to kill you. If I let you live I am going to prison for life for taking your lunch money. But if I kill you, there are no witnesses. And even if they catch me I won't do any more time for murder than for robbery."

I don't think we should use baseball analogies to structure criminal law. While "three strikes and you're out" sounds good, it may actually cause more serious crimes like murder.

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