Third Strike, Nuts

Californians came to their senses when they reformed the insanity of there Three Strikes Law that imprisoned people for life for offenses that were utterly trivial because they followed two prior felony convictions.  It seemed to make so much sense in the beginning to people who were all too happy to rid society of those "parasites," until reality sunk in.

From the New York Times:

As it turned out, three strikes created a cruel, Kafkaesque criminal justice system that lost all sense of proportion, doling out life sentences disproportionately to black defendants. Under the statute, the third offense that could result in a life sentence could be any number of low-level felony convictions, like stealing a jack from the back of a tow truck, shoplifting a pair of work gloves from a department store, pilfering small change from a parked car or passing a bad check.

For some crazy reason, such unduly simplistic ideas like three strikes never seems to take into account how things work out on its fringes, which often requires people to think a bit harder than mere convenient self-interest.  Then again, there was also the selling point of enlightened self-interest:

In addition to being unfairly punitive, the law drove up prison costs.

The reformation was intended to end the Kafkaesque aspect of ridiculously disproportionate sentencing of life for these minor felonies by making the third strike apply only to "serious" felonies:

The revised law preserves the three-strikes concept, but it imposes a life sentence only when the third felony offense is serious or violent, as defined in state law. It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.

On its surface, it seems to address the problem, or at least the most flagrant manifestations of the problem, while retaining the shiny appeal of simplistic mandatory punishment.  For those inclined to extrapolate from limited facts, it isn't hard to foresee the next level of failure, when a well-placed punch or a home defended turns into a conviction for a violent felony. But let's rejoice over reform and leave the thinking until the next few thousand lifers' stories are told.

But an outgrowth of some deeper consideration of who the past third strike offenders were turned up a curious issue.

The resentencing process is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule. It is likely that many were too mentally impaired to assist their lawyers at the time of trial.

Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population. The ratio appears to be higher among three-strike lifers in California.

The inability to think rationally, to perceived the world around you in terms of reality, isn't limited to California voters. Indeed, anyone who defends the accused has either had a close relationship with a mentally ill person or is thick as a brick.  Granted, financial motivations often drive people to commit crime, but there are a great many offenses that bring no money and are just plain wrongful conduct. Why would anyone engage in this conduct?  More often than we want to recognize, the individuals suffer from an inability to reason, to comprehend, to see, to think, in a way that would have allowed them to control their behavior and avoid the commission of a crime. They're mentally ill.

Have you ever sat down to talk with a client, to ask what happened and, maybe in the course of hearing a course of conduct that just made no sense, why?  Did you pick up the affectation, the grandiose self-image or the inexplicably obsessive aspect that just couldn't be explained?  There is no shortage of signs of mental illness, though nobody taught us in law school what to look for.  Worse still, there is nothing in our training that allows us to help.

Asked about the relationship of mental illness and three-strikes prosecutions, Michael Romano, director of the Stanford project, responded, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder.

Nearly all had been abused as children, he pointed out. All had been homeless for extended periods, and many were illiterate. None had graduated from high school.

In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.

The mindset of those who support simplistic sentencing notions like three strikes or mandatory minimums is one of personal responsibility. We all make choices in our lives, and if we chose to commit crimes, we have no one to blame for the consequences but ourselves.  It's a neat and tidy philosophy, and allows us to shrug off the harshness of its results as the other guy's choice, not ours. We certainly didn't make him commit a crime. He did it to himself.  Easy.

Except that the philosophy doesn't fit well with the mentally ill.  They don't sit down and think about it, ponder the cost/benefit of engaging in crime.  They don't think of the consequences, an assumption invariably argued and yet rarely known, no less considered, by those who end up convicted.  The myth of criminals knowing the law better than anyone else has always been hogwash. They didn't know much to begin with, and experience in court and prison didn't make them any smarter the second time around. Or the third.

Nor do they meet the legal definition of insanity such that their mental illness will save them from prison by putting them in an institution. Few outside the profession realize how rare and difficult it is to use this defense successfully.  The reality is that we see diminished capacity all the time, but careers go by without ever defending someone who is not guilty by reason of insanity. Mental illness covers a huge spectrum, with plenty of room for most defendants in the system.

But to expect the mentally ill to comport themselves the way people whose neuroses aren't directed toward criminal conduct is just, well, nuts. It's like passing a law that requires the blind to see or the deaf to hear. You can pass it, but it ain't happening. 

While recognition of the existence of mental illness has come a long way, and the attached stigma is very slowly diminishing, the criminal justice system is lightyears behind in figuring out a way to accommodate it and address it.  Our only tool being a huge hammer to be dropped on the head of the convicted, it's not going to do much to help. 

And yet, even with this reformed three strikes law, judges will still be constrained to bring their big hammer down on the heads of those defendants who are mentally ill on their third strike.  It's just nuts.

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