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doi:10.1093/bjc/azl007 BRIT. J. CRIMINOL. (2006) 46, 781–802 Advance Access publication 31 March 2006 THREE STRIKES AND YOU’RE OUT Exploring Symbol and Substance in American and British Crime Control Politics1 T R E V O R J O N E S and T IM N E W B U R N * Downloaded from at UNIVERSIDAD DE SEVILLA on May 24, 2013 Criminologists have become increasingly interested in the extent to which, and ways in which, criminal justice and penal policy ideas and innovations t
  doi:10.1093/bjc/azl007BRIT. J. CRIMINOL.(2006) 46 , 781–802 Advance Access publication 31 March 2006 781 © The Author 2006. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: THREE STRIKES AND YOU’RE OUT  Exploring Symbol and Substance in American and British Crime Control Politics  1 T REVOR  J ONES and T IM N EWBURN * Criminologists have become increasingly interested in the extent to which, and ways in which,criminal justice and penal policy ideas and innovations travel across national boundaries. A par- ticular focus has been the apparent convergence of some aspects of crime control policy in the United States and the United Kingdom associated with policies such as ‘zero tolerance’ policing, youth curfews, the ‘war on drugs’, increased use of incarceration and the privatization of criminal  justice agencies. This paper focuses upon the area of sentencing policy and, in particular, the emer- gence of so-called ‘two’ and ‘three strikes’ sentencing policies in the United States and the United Kingdom. The paper outlines the contrasting forms and variable impacts of these sentencing pol- icies in different jurisdictions. In particular, it examines the relationship between symbolic and substantial dimensions of policy in contrasting jurisdictions, the degree to which differences are related to the strategic intentions of politicians and policy makers, and the mediating factors of varying legal and political institutions and cultures. The central argument of the paper is that in the context of the political institutions and cultures of some US states, the relationship between symbol and substance is much closer than is the case in other jurisdictions, not least that of the United Kingdom.Introduction  In recent years, several writers have highlighted the international spread of penalpolicies that appear to have srcins in the United States (Christie 2000; Garland 2001;Nellis 2000). Such developments have included (among other things) the emergenceof a significant transnational commercial corrections industry, the spread of ideas andpractices associated with ‘zero tolerance’ policing, the introduction of youth curfews,the war on drugs and increasing rates of incarceration (see Newburn 2002). This paperfocuses upon the particular arena of sentencing policy. Apparently growing similaritiesbetween the sentencing approaches of Western countries have led to discussions about the ‘globalisation of sentencing policy’ (Frase 2001) in which it is suggested that ‘com-mon features include not only broadly similar sentencing purposes, procedures, andalternatives but also similar recent trends (e.g. toward increased severity, particularly for violent, sex and drug offenders)’ (Frase 2001: 259). 2 Such observations concur with * Trevor Jones, Cardiff University, UK; Tim Newburn, London School of Economics, UK; 1 This paper arises from a research project entitled ‘International Influences on UK Crime Control and Penal Policy in the1990s’ funded by the Economic and Social Research Council as part of their Future Governance Programme (Grant no. L216 252035). The authors would like to thank the two anonymous authors for their comments on an earlier draft of this paper. 2 We recognize that Frase also highlights a number of significant differences that persist between the sentencing systems of  Western nations.   a  t   U NI   VE R S I  DADDE  S E  VI  L L A onM a  y2 4  ,2  0 1  3 h  t   t   p :  /   /   b  j   c  . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om   JONES AND NEWBURN 782an influential body of recent work that highlights transnational social and economicforces underlying policy convergence between different jurisdictions (Garland 2001;Christie 2000; Wacquant 1999). By contrast, other authors have highlighted the contin-ued divergence between the penal policies of different nation states, and related theseto persistent differences in national, and sub-national, political institutions, culturesand historical traditions (Jones and Newburn 2002ab; Melossi 2001; Muncie 2004;Stenson and Edwards 2004; Tonry 1999; 2001; 2004ab; Whitman 2003).This paper attempts to draw upon perspectives from both these influential bodies of  work. Overarching studies of policy convergence in criminal justice have beenextremely important and have made a significant contribution to our understanding of current trends in penal policy. At the same time, scholars who have provided morefocused and detailed policy histories that seek to identify and explain regional andnational differences have enhanced our comprehension of the ways in which localpolitical cultures and the activities of key political actors serve to initiate, reshape,mediate or resist policy ideas and innovations that travel across jurisdictional bounda-ries. This paper certainly does not suggest that authors whose work falls into either of these broad approaches are presenting a picture of ‘total’ convergence on the onehand, or complete national/local autonomy on the other. Indeed, most authors writ-ing in this field clearly recognize the simultaneous existence of elements of conver-gence and divergence between nations and regions, and accept that policy outcomesarise from a complex interplay between local, national and international forces. InGarland’s words, the different emphases of these distinct approaches reflect the ‘unavoida-ble tension between broad generalization and the specification of empirical particu-lars’ (Garland 2001: vi). However, although we would concur with this on one level, wedo think that it is possible to develop further the focus upon both similarity and differ-ence between national penal systems, drawing upon the important insights of both the‘broad generalization’ approaches that Garland refers to, and those which concentratemore upon the ‘empirical particulars’. Inevitably, given the nature of the study on which it is based, this paper leans more towards the latter approach, in that its focus isupon the development of specific policies at particular times and places. However, inexploring the ways in which criminal justice and penal policies formed at given pointsin time within the context of distinctive sets of political institutions and cultures, it isimportant to remain mindful of the degree to which broader social and cultural trendsunderpin and shape (and are shaped by) these developments.In exploring the nature of convergence and divergence in penal policy in different  jurisdictions, this paper examines the introduction of a particularly harsh (or certainly harsh-sounding) form of mandatory sentencing—commonly referred to using thebaseball metaphor, ‘three strikes and you’re out’. Appearing initially in the UnitedStates in the late 1980s and early 1990s, with a variant introduced in the United Kingdomlater in the 1990s, on the surface, this appears a relatively straightforward case not only of increasing punitiveness but also of cross-national convergence.The current paper has two central objectives. First, we wish to contribute further to agrowing body of work on criminal justice and penal policy making. As we have notedelsewhere, most criminologists working in this area to date ‘have focused their empiri-cal research upon the content and impact of penal policy, rather than its srcins’(Jones and Newburn 2005). Paul Rock’s detailed policy analyses provide a conspicuousexception to this tendency (Rock 1990; 1995; 2004), but, in general, criminologists   a  t   U NI   VE R S I  DADDE  S E  VI  L L A onM a  y2 4  ,2  0 1  3 h  t   t   p :  /   /   b  j   c  . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om  THREE STRIKES AND YOU’RE OUT 783have left the study of policy making to political scientists. Political scientists, on theother hand, have shown surprisingly little interest in the sphere of criminal justice andpolicy. The second aim is to explore the degree to which (and the ways in which)national and local political structures/cultures—and the subjective decisions of key political agents working within these—may re-shape, mediate or resist altogether thebroader policy ideas that travel within and across jurisdictional boundaries. Whilst muchrecent work has focused upon structural and cultural forces shaping policy developments, we feel that it is important to consider divergence as well as convergence betweennational penal systems. Understanding difference is crucial in helping us to under-stand our own jurisdictions as well as helping to illustrate the nature and sources of res-istance to globalizing pressures (Newburn and Sparks 2004). In particular, it isimportant to examine the degree to which differences in penal policy outcomes can berelated to differences in political institutions and processes, and the strategic choicesmade by political actors within these constraints. In part, this requires a more detailedexploration of what we mean by ‘policy’ and the processes via which it is formed.This paper is divided into three sections. The first provides a broad descriptiveaccount of the emergence of two/three strikes sentencing policies in the United States andthe United Kingdom, respectively. The second section explores in more detail the similari-ties and differences between jurisdictions in terms of the particular ‘policy levels’, rangingfrom the more substantive manifestations to the symbolic elements of policy. The third sec-tion examines the roles of political agents in promoting or opposing these sentencingreforms, and the differing political institutions and cultures within which they operate. The Development of Two/Three Strikes Sentencing Mandatory minimum sentencing in the United States   All 50 states and the District of Columbia now have some form of mandatory minimumsentence (Kennedy 2000). Yet, it was not until the late 1980s that the slogan ‘threestrikes and you’re out’ entered the sentencing arena. Although most frequently associ-ated with California, the slogan first became attached to the notion of mandatory min-imum sentences in debates about crime and sentencing in Washington state (Brinkley 2003). A conservative activist and local television commentator, John Carlson, used it topromote his proposal for a mandatory life sentence without parole for conviction of athird serious crime (Gest 2001). Following the murder of Diane Ballasiotes in 1988(who was stabbed to death by a convicted rapist on work-release from prison), Carlsonand Diana’s mother joined forces to campaign for tougher sentencing laws in Washington.Little practical progress was made until 1993, when the powerful National Rifle Associ-ation (NRA) provided support for the ‘three strikes’ campaign in the form of fundingand access to its extensive mailing list. Despite significant public opposition from penalreform groups and criminal justice professionals, an overwhelming majority of votersapproved Proposition 593 in a state-wide ballot in November 1993.By this time, the ‘three strikes’ slogan had spread southwards to California, and onceagain, a high-profile crime and campaigns led by ‘homicide co-victims’ (Dubber 2002) were to be central in subsequent policy developments. In June 1992, an 18-year-old stu-dent, Kimber Reynolds, was killed during an attempted robbery by Joe Davis, a man with a string of previous convictions for drugs, robbery and car offences. Kimber’s   a  t   U NI   VE R S I  DADDE  S E  VI  L L A onM a  y2 4  ,2  0 1  3 h  t   t   p :  /   /   b  j   c  . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om   JONES AND NEWBURN 784father, Mike Reynolds, began to campaign for tougher sentencing of repeat offenders(Reynolds et al  . 1996) and in early 1993 persuaded a Republican member of the statelegislature to sponsor Assembly Bill 971, the legislative version of what would laterbecome the ‘three strikes’ law (Domanick 2004). When the Bill was voted down at itsfirst hearing in the state legislature, Reynolds decided to by-pass the state legislatureand use the voter initiative process. Although the campaign received backing frompowerful lobbies such as the Republican Party, the NRA, and the Californian Correc-tional Peace Officers Association (CCPOA), the initiative was slow to attract the neces-sary public backing (Reynolds et al  . 1996; Greenberg 2002). However, in October 1993,12-year-old Polly Klaas was abducted, sexually assaulted and murdered by a repeat offender who had been released early (for good behaviour) from a prison sentence forkidnapping. The case received national and international media attention, and pro- vided crucial impetus to the campaign for three strikes. Reynolds was able to return tothe California legislature and effectively say ‘pass AB 971 or the voters will do it for you’(Vitiello 1997: 413). Such was the perceived strength of public feeling and the politicalmomentum behind the movement to three strikes, the Bill was passed without changeby a huge majority of legislature members. According to Zimring et al  . (2001) thisdevelopment was unique in US sentencing reform in that ‘the legislative and initiativeprocesses through which the proposal travelled were almost entirely devoid of expert scrutiny from government specialists or from scholars’ (Zimring et al  . 2001: 3). A number of parties—including several members of the Californian state legislature,law enforcement officials and members of Reynolds’ own advisory team—had sug-gested amendments to the proposed legislation that would target it more specifically upon violent offenders (Vitiello 1997). Reynolds refused to compromise, and evenafter the Bill was passed into law as it stood, he continued the voter initiative process inorder to narrow the future possibilities of legislative amendment or reversal. 3 Theinterplay between the Republican governor seeking re-election, Pete Wilson, and theDemocrat-controlled legislature was also key to the eventual emergence of a moreextreme version of three strikes sentencing. Wilson’s enthusiastic embracing of the‘tough on crime’ message was perhaps predictable given his low approval ratings andthe poor state of the state economy. Democrat members of the state legislature wereunwilling to be portrayed as soft on crime, and responded by considering a range of ‘three strikes’-type proposals, including Reynolds’ version. The Democrat leadership of the legislature announced that they would concur with whatever version Governor Wilsonchose. 4 Governor Wilson, keeping the public promise he had made at the funeral of Polly Klaas in 1993, re-stated his preference for the Reynolds version (Abramsky 2001): In effect, the executive and legislative branches had swallowed whole the outside-the-beltway versionof Three Strikes because they were unwilling to concede the ground on ‘getting tough’ to the otherside in the political campaign to come. (Zimring et al  . 2001: 6) Between 1993 and 1995, 24 states added ‘three strikes’ legislation to already existinglaws that enhanced sentencing for repeat offenders. The ‘three strikes’ movement was 3 Under Californian law, in order to amend or reverse a law passed by voter initiative, support must be given by either a two-thirds vote of the members in each house of the legislature, or the electorate must support an initiative specifically reversing the previouslegislation. 4 Cross-party support for three strikes continued under Wilson’s successor as Governor, the Democrat Gray Davis, who wasreplaced by Arnold Schwarzenegger in 2003.   a  t   U NI   VE R S I  DADDE  S E  VI  L L A onM a  y2 4  ,2  0 1  3 h  t   t   p :  /   /   b  j   c  . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om
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