Three strikes and you're in: A streams and windows model of incremental policy change

Journal of Criminal Justice, Vol. 24, No. 1, pp. 57-70, 1996 Copyright © 1996 Elsevier Science Ltd Printed in the USA. All rights reserved 0047-2352/96 $15.00 + .00

Pergamon

0047-2352(95)00052-6

THREE STRIKES A N D YOU'RE IN: A STREAMS A N D W I N D O W S MODEL OF INCREMENTAL POLICY C H A N G E

MICHELLEA. SAINT-GERMAIN Graduate Center for Public Policy and Administration California State University, Long Beach Long Beach, California 90840-4602

ROBERT A . CALAMIA

Graduate Student Political Science Department University of Texas at E1 Paso E1 Paso, Texas 79968

ABSTRACT While some use has been made o f the agenda setting portions o f Kingdon "s 1984 "streams and windo ws" model, little attention has been paid to the implications o f the full model f o r policy change. A t the same time, much is being made o f the new "Three Strikes" legislation as a radical departure f r o m past crime control efforts. In this article, Kingdon's full model is used to provide insights into the policymaking process that resulted in the 1994 Violent Crime Control and Law Enforcement Act (U.S. House o f Representatives, 1994) and its "three strikes'proviso. This article shows how this proviso is really only an incremental addition to previous legislation- the 1984 Violent Crime Control and Law Enforcement Act. It also demonstrates that Kingdon's model provides insights into the process o f policy change by identifying the relevant actors, institutions, and political processes, and that his model also can f o r m the basis f o r evaluation o f that process.

INTRODUCTION

(Reske, 1994). Public opinion seemed to be demanding drastic action in the area of crime policy. Less than six months later, President Clinton signed into law the Violent Crime Control and Law Enforcement Act of 1994 (U.S. House of Representatives, 1994), which

An April 1994 N e w Y o r k T i m e s poll indicated that the American public rated crime as the most important problem facing the nation, even more important than the economy 57

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contained a special provision for repeat criminal offenders. Dubbed "Three Strikes and You're Out," the new policy stipulated that persons convicted for a third time of certain felonies be sent to prison for the rest of their lives. The rhetoric surrounding the passage of this act would lead one to believe that the three strikes provision of the bill was a radical departure from past policy, a bold stroke to get tough on crime. At a Republican National Committee meeting, Newt Gingrich called for government to build "stockades on surplus military bases to keep violent criminals locked up" (Berke, 1994:A9). Phil Gramm said, "I want a crime bill that grabs violent criminals by the throat" (Berke, 1994:A9). Was this a completely new development, or m e r e l y - a s is more c o m m o n - an incremental step added to an already existing policy foundation? (For a discussion of why most policy is incremental, see Hayes, 1992.) In this article, the developments that led to the adoption of the Three Strikes bill are analyzed using the streams and windows model developed by Kingdon (1984). Through the use of Kingdon's model, this article will show that the three strikes policy was an outcome of previous policy steps, an accretion of policy adopted in Congress over more than a decade. The usefulness of Kingdon's model for examining the development of public policy in general and for explaining the development of crime policy in particular also will be discussed.

STREAMS AND WINDOWS M O D E L In his 1984 book, Agendas, Alternatives, and Public Policies, Kingdon proposed a novel answer to the question of why items reach the government's decisionmaking agenda and are given serious attention. Policymaking can be viewed as a process consisting of several stages (e.g., problem definition, agenda setting, alternative generation, policy adoption, and implementation). Generally, this process is thought of as proceeding in a linear fashion: problems are identified, earning a place on the

agenda, where alternative solutions are devised, one of which is legitimated and put into place. Kingdon's research focused on how items get onto the formal government agenda. He identifies three possible sources or streams of influence: problematic situations, specialized policy knowledge, and political events. The problems stream identifies potential agenda items by defining which things are problems. Not all situations or events are perceived as problems; rather, problems are conditions for which, it is believed, something should be done (Kingdon, 1984:115). The policy stream identifies potential policy alternatives that reflect both advances in technical and scientific knowledge and basic consensus on specialists' values (Kingdon, 1984:140). The political stream contains events, such as elections, changes in the political party in power, public opinion, and media campaigns, that can influence what government does. Kingdon's insight is that these three streams operate relatively independently of one another, each with its own forces, considerations, and styles (Kingdon, 1984:93). That is, politicians may search around for a problem to solve in order to win favor with their electorate. Policy specialists may develop solutions for which problems have not been formally acknowledged to exist. A problem may exist that never gets onto the formal agenda because a feasible solution does not exist or a politician is not interested in it as it is defined. Agenda and policy change occur when the three streams are joined in an opportunity called a "policy window" (Kingdon, 1984:94). Levine (1985:255) characterizes the result as "an innovative theory of policy making that resembles a process of biological natural selection rather than the more traditional mechanistic models of interest group politics." Policy windows are not rigidly scheduled, but are influenced by events mainly in the problems and politics streams. An unexpected dramatic national event may afford an opening, as may a more predictable event, such as legislation that comes up for periodic renewal. The rise of a social movement may or may not create a policy window, but a change in ad-

Three Strikes and You're In

ministration probably will. None of these events, however, will rigidly determine what must be done; what actually occurs also is influenced by the policy stream (Kingdon, 1984:177). Often it takes a perceptive and persistent policy entrepreneur to sense that a window is opening and to seize the initiative of linking (or coupling) policy alternatives with problems and political events (Kingdon, 1984: 188). Kingdon's model has several advantages over linear models of the policy process. First, it emphasizes the importance of both structure and personal influence on the process (Kingdon, 1984:192), including the influence of formal and informal actors (Kingdon, 1984:215). Second, it "incorporates an enlarged view of policy communities [and] gives a prominent role to substantive policy information about real world problems and the impacts of previous governmental interventions" (Sabatier, 1991:151). Third, it emphasizes the roles of both creativity and chance in the policymaking process, effects that other models attempt to minimize or control (Kingdon, 1984:192). Fourth, and most importantly for this article, it allows for both incremental and nonincremental policymaking (Kingdon, 1984:83-88). Kingdon's model has been criticized on several grounds. Mucciaroni (1992:459) finds Kingdon's model "too indeterminate to provide fully satisfactory explanations for why some problems receive serious consideration by government while others do not." He suggests, however, that the model's weaknesses can be overcome by using it as a general framework to develop "more middle-level propositions that allow us to predict the kinds of political and institutional conditions that need to exist or emerge for getting particular kinds of problems and solutions on the agenda" (Mucciaroni, 1992:482). It also needs to pay more attention to institutional structures and processes that "shape, constrain, and facilitate problems and solutions in reaching the agenda" (Mucciaroni, 1992:482). Additionally, it should "trace the impact of historical antecedents" on agenda setting, and, lastly, it should concentrate on the "interdependence of problems,

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solutions, and politics rather than their independence" (Mucciaroni, 1992:482). Finally, Sabatier (1991:151 ) believes the model should be expanded to cover the entire policy process: more attention needs to be given to the role of "bureaucracies and courts in implementing those [policies] and more recognition needs to be accorded the intergovernmental dimension in both formulation and implementation." This article argues that Kingdon's model does allow for consideration of the effects of historical antecedent on policymaking; that the effects of existing institutional forces are shown to constrain policymaking; that the effects of past policy implementation do feed back into the problem, policy, and politics streams to affect future policymaking; and that Kingdon's model can help identify whether seemingly new policies are really incremental.

PROBLEM STREAM: T H E PURPOSE OF P U N I S H M E N T One important aspect of public policymaking is defining the problem. Problem identification and definition play a large role in shaping the policy that will eventually emerge, or the chances that a policy will not emerge at all (Anderson, 1994; Bachrach and Baratz, 1970). There have been several paradigm shifts during the nation's history in how criminal justice has been perceived (Hussey and Kramer, 1978; Nagel, 1990). One of the most profound has involved the debate over determinate versus indeterminate sentencing. Greenberg and Humphries (1980) discuss how, after the U.S. Civil War, the existing system of fixed prison terms or determinate sentencing (e.g., five years for forgery, fifteen years for manslaughter, and so forth) was seen as too mechanical and aimed only at exacting retribution from those sentenced. It was at this time that those interested in sentencing reform came to the conclusion that other factors, besides the offense in question, should be considered by the judges (Frost, 1982:15). Thus, persons charged with the same offenses could be sentenced to serve different lengths of time.

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With the Progressive Era, this new model of indeterminate sentencing was embraced with the confidence and zeal typical of reformers. The basis of indeterminant sentencing was the treatment model. This was an attempt to approach penology using the scientific method to achieve an ideal of rehabilitation. The new scientific study of criminal justice could explain and control human behavior and, thus, tailor remedial programs to the needs of each individual (Hussey and Kramer, 1978:111). Although debates over sentencing tend to be polarized between treatment and rehabilitation versus punishment, retribution, and deterrence (Morris; 1978), the primary objectives of the indeterminate sentencing model emphasized the former, while determinate sentencing emphasized the latter. The objectives of indeterminate sentencing were, first, the preventive detention and rehabilitation of the wrongdoer and, only secondarily, specific or individual deterrence of recidivism, general deterrence of wrongdoing by other people, and retribution or revenge (Motley, 1973:266). It was assumed that proper treatment would reduce future criminal activities and that the particular circumstances of the individual should be taken into account in order for the chances of rehabilitation to be maximized (National Institute of Law Enforcement, 1978a:ix). Different individuals required different amounts of treatment and, therefore, different amounts of time in custody. Judges in California could sentence convicted persons to "the term prescribed by law" (Messinger and Johnson, 1978:15), which was often so openended as to range from one year to life. The evaluation of when the prisoner was ready to rejoin society was to be made by trained professionals, parole boards, and so forth and was not to be made by legislators (Goodstein and Hepburn, 1985:13). That decision was to be based on scientific predictions of the probability that the released offender would be successfully reintegrated into society. This model dominated thinking in the criminal justice field for over one century (Goodstein and Hepburn, 1985). As noted by Kuhn (1970), dominant paradigms are slow to cede their hegemony, even in the face of daunting

evidence that the model is not working. Once adopted into the criminal justice system, it did not take very long for the problems inherent in the indeterminate sentencing system to surface and be noticed. In fact, the first study designed to observe the nature of sentencing disparity was constructed in 1919, producing results that would be mirrored in later research. This pioneering research examined the cases of a sample of 155,000 defendants. The violations of these defendants centered around local ordinances, ranging from disorderly conduct to drunkenness. When analyzing the sentencing of these violators by forty-two magistrates, it was found that in like situations, the sentences, as well as the individual cases, were handled differently. An influential factor, it was noted, was "that justice 'is disconcertingly human, reflecting to an astonishing extent the personalities of the judges'" (Frost, 1982:10). The results of these studies, however, were attributed to individual interpretation based upon perceptions or attitudes toward crime and punishment, as illustrated in the discussion of deservedness by yon Hirsch (1985). As late as the 1960s, studies of and reports on the criminal justice system, such as the Model Penal Code and the President's Crime Commission Report, did not question the indeterminate sentencing model (National Institute of Law Enforcement, 1978b:ix). Several developments in the 1960s and 1970s, however, challenged the effectiveness of the treatment aspects of this model. The civil rights movement and African American militancy brought increased attention to the discrimination experienced by minorities both in society in general and in the criminal justice system in particular. A general mistrust of authority generated by opposition to the Viet Nam War pervaded perceptions of the legitimacy of the criminal justice system as well. Social science research data began to show that the treatment model did not achieve its objectives and that decisions about the likelihood of recidivism had poor predictive validity (Goodstein and Hepburn, 1985:15; Greenberg and Humphries, 1980:208). A ground breaking study on policy technology for sentencing was initiated by a Ford

Three Strikes and You're In

Foundation (1967) project on parole decisionmaking for the Federal Parole Board (which was restructured as a commission following the study). This work led to the original sentencing guidelines demonstration project conducted by the National Institute of Law Enforcement and Criminal Justice (NILECJ) as well as to adoption of a preliminary model in Minnesota. A researcher who staffed the Federal Parole research unit became the head of research for the ensuing sentencing commission. Another influential development was the release of a 1971 report by the American Friends Service Committee (AFSC), which credited the longer sentences served by the poor and minorities to uncontrolled discretion. Their study of the decisions of fifty different federal district court judges who were asked to render sentences on twenty actual files produced the following results: In a bank robbery case, sanctions ranged from a sentence of 18 years imprisonment and a $5,000 fine to five years imprisonment and no fine. In an extortion case, one judge sentenced a defendant to 20 years imprisonment and a $65,000 fine, while another imposed a three year prison sentence and no fine. (U.S. Sentencing Commission, 1991:16) Problems with the theory and practice of indeterminate sentencing were becoming increasingly apparent. The crime rate was not reduced by the treatment model; rather, crime was increasing over time. Prisoners with like crimes but unequal sentences felt the injustice of sentencing disparity, and all prisoners felt the anxiety of an unknown future occasioned by open-ended terms. Decisions by parole boards were seen as capricious and arbitrary, sometimes responding to administrative concerns about overcrowding through early releases, or responding to political pressures for crackdowns on crime by detaining prisoners for longer terms (National Institute o f Law Enforcement, 1978a:ix). The treatment model also became too expensive during the high inflation and high unemployment of the 1970s to meet the problems posed by the demographic surge in the number of young men in the prime crime-prone

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ages (due to the post-World War II baby boom). Other critiques of indeterminate sentencing included a 1972 Senate Committee on Criminal Law and Procedure study of sentences in federal courts, which found that African Americans were more often sentenced to prison than Caucasians for the same offense, and that among those incarcerated, African American offenders served an average of 57.5 months compared to 42.9 months for Caucasians (Motley, 1973:259). Momentum was building for another paradigm shift in the history of thinking about sentencing theory and policy.

POLICY STREAM: E V O L U T I O N OF S E N T E N C I N G POLICY The growing awareness of disparities due to indeterminate sentencing became a focusing event. Kingdon (1984) describes a focusing event as a phenomenon that stimulates discussion of a policy problem and that can contribute to pushing that problem to the top of the institutional policy agenda. Another focusing event was the book written by Justice Marvin Frankel (1972), a sitting judge in the U.S. District Court of the Southern District of New York. Justice Frankel, alarmed at the outcome of the American Friends Service Committee's (1971) study, proposed an end to indeterminate sentencing and the establishment of an independent sentencing commission. Frankel pointed to the great discretion that unelected judges have to pass sentence as a source of power that could be either beneficial or detrimental to the defendant. While a judge may take mitigating or aggravating circumstances into account in passing sentence, he or she also may be influenced by personal biases against the defendant. These fluctuations in discretion are undesirable in a system where justice is presumed to be blind. Frankel concluded that "the practicing of sentencing is or should be merely a procedural exercise" (Adams, 1994:265). Although there was considerable difference of opinion among the judiciary on this matter, the challenge to the old

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paradigm had been issued and began to gain momentum. Justice Frankel provided a policy alternative that would correct the problem of sentencing disparity and reduce excessive administrative discretion. Its basic framework called for the formation of a commission of experts to produce guidelines for sentencing, and the introduction of the possibility of appellate review of sentences. While this was not an entirely new idea, its adoption by a highly visible policy actor contributed to its being given serious attention by the relevant policy community and to its chances of eventual adoption (Hayes, 1992:154). Justice Frankel drew from earlier studies (e.g., Ford Foundation, 1967) and experiments with such practices. For example, in 1973, the Minnesota legislature abolished two of their part-time juvenile parole boards with the intention of establishing an entity similar to a sentencing commission. This commission was known as the Minnesota Corrections Board (MCB) and had the same powers as the parole boards (Gottfredson and Wilkins, 1978:341). The MCB developed a set of guidelines that took into consideration mitigating circumstances and were very similar to today's sentencing guidelines. These guidelines were first instituted on May l, 1977, and their effects were evaluated one year later. It was discovered that by implementing the guidelines, the rate of growth in prison population had slowed. In fact, "the rates of release under the guidelines were very close to the rates of commitment" (Gottfredson and Wilkins, 1978:355-56). Evolutionary and incremental policy change are the norm, but abrupt change is possible with the adoption of a new philosophical approach or paradigmatic shift. The chances of policy shift are much greater if a technically feasible solution has already been worked out that has a realistic chance of being implemented. With the next major step in the evolution of sentencing reform just over the horizon, Maine, in 1975, became the first state to take drastic action and abolish its parole board to make way for a more determinate sentencing program. Although the judges still had a wide range of latitude in terms of sentencing, the

stage was set for more aggressive reform (Griset, 1991:40). The passage of SB 42, the Uniform Determinate Sentencing Act of 1976, in California provided another example that heralded readoption of the old principle that the purpose of imprisonment is punishment (Messinger and Johnson, 1978:13). An unlikely collection of interest groups contributed to the reform in the California case, including: the corrections bureaucracy, which could not practice rational planning with indeterminate sentencing; prisoners, who were anxious concerning uncertainty; police and prosecutors, who thought prisoners were released too early; reform groups and prisoners' unions that thought prisoners were released too late; legislators, who wanted to be seen as tough on crime; and politicians embarrassed by occasional errors in early release (A1schuler, 1978:59; Messinger and Johnson, 1978:16). Other states followed suit. Under the new model, inappropriate considerations (such as race or class) that had often resulted in biased sentences under the indeterminate model were to be excluded by specific sentencing guidelines. Justice was to be served by fixing the sentence to the crime, not perceived prospects for rehabilitation; equity was served by imposing similar sentences for those with similar crimes (Messinger and Johnson, 1978:31). Sanctions would be imposed according to the social harm done, and discretion in sentencing would be eliminated. Preventive confinement based on predictions of recidivism, as well as the requirement to participate in mandatory treatment programs oriented toward rehabilitation, also were to be dropped (Greenberg and Humphries, 1980: 208). Some analysts, however, charged that under the guise of eliminating bias based on race, the "just deserts" model was an abstract reinforcement of the ideology of personal responsibility without consideration for the dynamics of the social and economic system (Greenberg and Humphries, 1980:216). Along these lines, Fogel and Hudson (1981:viii) remind us that, when discussing crime and punishment, it is essential to remember that "socialization (the manipulation of fear and hope through rewards and punishments) of individuals, however imperfect, occurs in re-

Three Strikes and You're In

sponse to the commands and expectations o f the ruling social-political power." In 1975, U.S. Senator Edward Kennedy of Massachusetts introduced the first of many reform bills seeking to end sentencing disparity at the federal level (Schulhofer and Nagel, 1989). Another federal sentencing reform was proposed by Senators Kennedy and McClellan in 1978; at least six states already had passed such legislation and more were considering it. Kennedy's reform bill finally was adopted in 1984 as the Sentencing Reform Act of 1984, after being endorsed by a bipartisan coalition that included Senators Strom Thurmond of South Carolina, Joseph Biden of Delaware, and Orin Hatch of U t a h - t h e latter two were members of the powerful Senate Judiciary Committee (Kennedy, 1992:ix). The Sentencing Reform Act of 1984 was attached to the Comprehensive Crime Control Act of 1984. It represented a major overhaul of the federal statutes dealing with crime. The act enumerated a number of conflicting purposes: just punishment, deterrence, public protection, and rehabilitation (Weigel, 1988:99; Feinberg, 1991). It required courts to consider the nature and circumstances of the offense and the history of the defendant, as well as the seriousness of the crime and the need for a sentence that would serve to ensure respect for the judicial system, provide punishment, public protection, and deterrence, as well as some treatment for the offender (Weigel, 1988: 84-85). One innovation of the Sentencing Reform Act o f 1984 was the establishment of the United States Sentencing Commission as wholly independent of the Judicial Branch. Congress stipulated that its primary objective was: To establish sentencing policies and practices for the federal criminal justice system that provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences, when warranted by mitigating or aggravating factors not taken into account in the

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establishment of general sentencing practices. (Meierhoefer, 1991:889) The act provided the commission with the power to completely overhaul federal criminal justice procedures. The first step was the elimination of the Parole Commission. This eliminated the possibility that a judge's sentence could be diluted by a parole board. It added to the integrity of the sentencing procedure by reassuring the public that the sentence rendered would be the sentence s e r v e d - minus some credit for good time (U.S. Sentencing Commission, 1991:17). Somewhat ironically, the Parole Commission, which originally was created to compensate for wide variations in judicial discretion, was abolished to correct the same problem it had been designed to prevent (Heaney, 1991:186). To further eliminate sentencing disparities, guidelines were to be developed by the Sentencing Commission, which was formed in 1985. After studying more than 40,000 cases, the Sentencing Commission calculated the average time actually served for specific crimes (U.S. Sentencing Commission, 1993b: 10). Over 500 pages of guidelines and amendments were developed for implementation in 1987 by probation officers and judges to arrive at a period of incarceration for each offender (Weigel, 1988:85). The Sentencing Commission produced a two-dimensional matrix that specified the suggested minimum and maximum number of months of sentence to be imposed, based both on the seriousness of the offense and the past criminal history of the accused. The basic format and operational terms used in this matrix were developed through several studies involving the reorganization of the parole system and juvenile sentencing (Gottfredson and Wilkins, 1978:246, 264-85); a software version was developed for use on personal computers to simplify the computational process (Weigel, 1988:102). This change greatly empowered the role of probation officers in the criminal justice system. Past history constitutes one axis of the two-dimensional sentencing grid. The probation officer, in conjunction with the prosecutor, determines which elements of the

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defendant's past history should be brought to the attention of the judge for consideration in sentencing. Points are assigned for such things as length of prior incarceration(s), perpetration of an offense while on probation or escape status, or convictions related to crimes of violence. The points are totaled and applied to the horizontal axis of the sentencing table. This system differentiates between first time offenders (few points) and those with lengthy criminal histories (many points). The points on the other (vertical) axis of the grid are determined by the nature of the crime .committed. The more serious crime, the more points are charged to the defendant. Property damage carries a base offense level of four, while first degree murder has a level of fortythree (U.S. Sentencing Commission, 1993b:36). The probation officer also makes this determination. The suggested minimum and maximum months of sentence are found where the computed point totals on the horizontal and vertical axes intersect on the grid. The judge can determine the sentence anywhere within the suggested periods of incarceration (e.g., from a low of zero to a high of six months, or from a low of 360 months to a high of life). While the judge's discretion is limited within these guidelines, some variability is afforded in different offense levels. In the lowest offense levels (1-8), the defendant may generally receive only probation. In the second set of levels (9-10), the judge can assign either probation or incarceration. The following levels (11-42), however, suggest that at least some prison time be served, and the highest level of offense (43) recommends a sentence of at least life in prison. Another source of variation can come from a decrease in the time incarcerated for good behavior. While a sentence of twelve months or less cannot be reduced, longer sentences can be reduced to approximately 85 percent of the original time (Calamia, 1994). Although in theory the guidelines were to be merely advisory, in practice they were to take on the role of mandatory sentencing, something quite different from the original intent. Justice Frankel's desire was to see "pre-

dictability and equality of t r e a t m e n t . . . [as] largely products o f the proper procedure" (Adams, 1994:265). Institutional forces have resulted in a sentencing process that, as it becomes more bureaucratized, is, in effect, not only more routinized, but also, for more serious offenses, imposes mandatory minimum prison time. Critics charge, however, that the process is mathematical in form only, that "scales and grids are used to mask discretion, not eliminate it" (Weigel, 1988:102).

P O L I T I C A L STREAM: P U N I S H M E N T AS GOOD POLITICS Kingdon (1984:152) defines a political stream as "composed of such things as public mood, pressure group campaigns, election resuits, partisan or ideological distributions in Congress, and changes in administration." Occurrences in the political stream often provide the opportunity for a policy window to open that will allow the adoption of new policy initiatives, either incremental or nonincremental. Certainly the implementation of past policies is one factor that can affect the components of the political stream. While events in the political stream may provide an open window, it takes more than just the opportunity for action to result in policy change. Often the presence of a political actor or entrepreneur is essential. This "stakeholder" is one who promotes communication and ultimately aids in effective implementation of the program in question (McGarrell, 1993a:232). This person "is one who is willing to invest their resources, time, energy, reputation, and sometimes money, in the hope of a future return" (Kingdon, 1984:129). Political entrepreneurs can be elected officials, academics, or other agents who have an ongoing interest in a particular policy (Hayes, 1992:154). One such political actor was Governor Mario Cuomo, who, with his sphere of influence, was able to get the issue of determinate sentencing on the agenda of the New York State legislature. With the attention of such a po-

Three Strikes and You're In

litical entrepreneur, determinate sentencing became a highlight of the agenda of the New York State legislative body (Griset, 1991:109). Justice Frankel was another political actor who initiated the debate on sentencing reform. His thesis was unpopular among his peers because they perceived it to be a depreciation of the role of federal judges. Frankel was risking his professional reputation to advance an innovative policy reform proposal. Another major actor was Senator Kennedy. Policy actors can have many motives for their actions, including the possibility of personal gain in terms of political stature (Kingdon, 1984:129). Kennedy was a leading and persistent advocate for sentencing reform. His ability to build bipartisan support for the bill led to its ultimate adoption. Although Kennedy had been attempting to place Frankel's ideas on the public agenda for years, a policy window finally appeared in late 1983. A policy window is the convergence of the three streams (problem, policy, and political) and an opportunity for policy entrepreneurs to place their "pet projects" on the agenda. Because of an election promise to get tough on crime, President Reagan and a coalition of Republican senators were searching for a policy that could be realistically implemented and interpreted by the public as fulfillment of that promise. Kennedy presented a ready-made solution to the Republicans' problem of attending to their campaign promise and satisfying the public's mood for getting tough on crime. As Kingdon (1984:177) notes, "There are also occasions during which a problem becomes pressing, creating an opportunity for advocates for proposals to attach their solutions to it." This is illustrated by the Sentencing Reform Act. Frankel's intentions in proposing sentencing reform were not to get tough on crime, but rather to end sentencing disparities (Kennedy, 1992:ix). Sentencing disparities tended to fall more heavily on the poor and minorities, as demonstrated by the AFSC (1971) report. The AFSC had hoped that a coalition of Caucasian liberals and African American activists would back determinate sentencing as a more humane

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measure for convicts. With the shrinking resource pie of the 1970s, however, that coalition fell apart (Greenberg and Humphries, 1980: 217). The momentum was taken over by conservatives with a different ideology and agenda: concern for the personal safety of potential victims tied with insistence that convicted offenders take individual responsibility for their crimes (Greenberg and Humphries, 1980:225). While the concept of sentencing reform finally was accepted onto the government agenda, the framers' original intentions had to be transformed so that the policy could be adopted. Their ideas were modified so that they would be seen as consistent with the Violent Crime Control and Law Enforcement Act of 1984. The attachment of the Sentencing Reform Act of 1984 to the former act is an example of how jumping on the bandwagon so that a policy can be adopted also can result in reconfiguration of the policy's original intentions (for better or worse, according to the perspective of the original proponents) (Kingdon, 1984:169). One such twist was added by Republican Senator Alphonse D'Amato of New York, who grasped the opportunity not only to turn from guidelines to mandatory sentencing, but to also attach the concept of mandatory minimums. Although mandatory minimum prison terms had been in existence for a few crimes since 1970, D ' A m a t o proposed that more crimes be subject to this proviso, for example, all crimes committed with a firearm and drug offenses committed near schools (U.S. Sentencing Commission, 1991:5). Although public opinion generally was favorable, reaction against this interpretation (or tergiversation) of the guideline system came noticeably from within the judiciary (Freed, 1992). There is a widespread pervasive feeling that no one is listening in Washington, and that urgent demands for guideline reforms are simply being ignored. Those who created the guidelines are so wedded to their tenacious defense that they remain oblivious to the systematic dissonance they have created. The Federal Sentencing Commission, and the Congress which created it, simply are not getting the message,

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although the message could not be clearer: Your cure is worse than the disease. (Ulemen, 1992:899) The practice of using the guidelines also was subjected to challenge in the U.S. Supreme Court in Mistretta v. United States (488 U.S. 361, 1989), where John Mistretta claimed that it was a violation of the separation of powers doctrine. The Supreme Court upheld the guidelines as constitutional on January 18, 1989, and the implementation of the policy continued (Mistretta v. United States). Other legal professionals adopted a more pragmatic attitude: The chairman of the Subcommittee on Sentencing Guidelines of the Attorney General's Advisory Committee commented that "all of us in the criminal justice system need to realize that the guidelines are here to stay and to quote the old cliche, 'stop fighting the problem and become part of the solution'" (Brown, 1992:887). Some advantages of mandatory sentencing and mandatory minimum sentences are the increasing ability to manage and plan for time of release; a reduction in game-playing that occurred under the rehabilitative model; and an increase in inmate certainty about their release date (Goodstein and Hepburn, 1985: 173-75). The problems, however, are more numerous. They include complexity in arriving at the recommended sentence, longer sentences, prison overcrowding, and lack of a safety valve through early release (Goodstein and Hepburn, 1985:39). Other problems include the remaining sources of discretion in the system, such as street level bureaucrats' decisions whether or not to initiate proceedings, bail setting, plea bargaining, reduced charges by prosecutors in exchange for guilty pleas, and jury discretion in the case of a trial (Motley, 1973: 259; Alschuler and Schulhofer, 1989; Tonry, 1989). EVOLUTION OF SENTENCING POLICY TO THREE STRIKES The implementation of the guidelines policy mutated slowly but surely into a form of

mandatory sentencing and obligatory minimum incarceration periods for some offenses. With the acceptance of mandatory (and perhaps minimum jail time) sentences for single offenses, it was not much of a leap to extend these practices to subsequent or multiple offenses. The streams and windows model distinguishes between agenda change, which can appear "quite discontinuous and nonincremental," and the generation of policy alternatives, which can, nonetheless, be quite incremental (Kingdon, 1984:87). The model, however, clearly shows that once a policy is adopted, the results of the implementation feed back into the three (problem, policy, and political) streams. This would seem to promote incremental policymaking, since future policy results from the effects of former policy and its aftermath. "Incrementalism might still characterize the generation of alternatives. As policy makers consider the alternatives from which they will choose, they repair to ideas and approaches with which they are already familiar" (Kingdon, 1984:87). In other words, the when (timing) of policy adoption can be quite volatile, but the what (substance) of the policy adopted still can be incremental. An evolving incremental approach is implied in the language of the U.S. Sentencing Commission's (1991:iii) report to Congress: "[T]he guidelines system, as envisioned by Congress, is thus a self-correcting, and hopefully, ever improving system." Thus, the three strikes concept was a logical extension of the already established rationale of relating time served to both the severity of the offense and the past criminal history of the offender. For example, federal crimes with a severity level of 11 or higher could, when combined with the appropriate criminal history, result in the certainty that at least some prison time would be served. The next step was to set higher minimum sentences for some offenses. The statutes of the federal criminal justice system began increasing the number of offenses with mandatory minimums to over one hundred crimes specified in sixty different criminal statutes (U.S. Sentencing Commission, 1991:10). These mandatory minimums

Three Strikes and You're In

served to further reduce judicial ability to take mitigating circumstances into a c c o u n t - a n d their concomitant ability to exercise discretion. In fact, several critics of mandatory minimums saw discretion being transferred out of the hands of judges and into the hands of prosecutors, who could decide whether to charge an offender with a crime carrying a mandatory minimum jail term or to elicit a guilty plea to a different or lesser charge without such a minimum. While the U.S. Sentencing Commission acted as a type of check on judicial deviation from the guidelines, there was not a similar check on prosecutors (Kennedy, 1992:xi). Mandatory minimum sentences inevitably lead to sentencing disparity because defendants with different degrees of guilt and different criminal records receive the same sentence. The Guideline system permits the court to consider [mitigating] circumstances relevant to each offense and each offender, but mandatory minimum sentences override such individualized sentencing. (Kennedy, 1992:x) The Sentencing Reform Act of 1984 contained two provisions for policy monitoring and possibly policy change. First, the act directed the General Accounting Office (GAO) to evaluate the impact of the act four years after its implementation. The GAO was to uncover discrepancies in the implementation and impact of the use of sentencing guidelines; the U.S. Sentencing Commission was to examine the discrepancies and recommend amendments to the act to Congress. If Congress does not disapprove of the Commission's recommendations, then the amendments become law. For example, a 350-page manual containing amendments to the sentencing guidelines was published in November 1993 (U.S. Sentencing Commission, 1993a). In contrast to their support of the guidelines system, however, the U.S. Sentencing Commission (1993a) was critical of mandatory minimums: In contrast [to the sentencing guidelines], mandatory minimums are generally single shot efforts at crime control intended to produce dramatic results. They lack, however, a built-

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in mechanism for evaluating their effectiveness and easy adjustment. (U.S. Sentencing Commission, 1993a: 111) Empirical evidence showed that while the guidelines system did end indeterminate sentencing, it also produced unanticipated effects when combined with mandatory minimums. For example, the average sentence for an African American male committing a drug related crime in the preguidelines period averaged 37.3 months of incarceration. After the guidelines, this average sentence jumped to 83.4 months. For Caucasians, the average increased from 30.8 months before to 53.7 months afterward. Thus, the average sentence for African Americans increased by more than the average sentence for Caucasians, further increasing the disparity along ethnic lines rather than reducing it (Heaney, 1992:77980). Similar results have been produced in studies centering around the juvenile justice systems (McGarrell, 1993b:46). Moreover, the use of rigid sentencing procedures tends to create not only racial disparities, but also a seemingly inflexible criminal justice system. Some may argue that such a rigid system of sentencing may produce "equity only at the expense of treating unequal cases alike" (Gottfredson and Gottfredson, 1980:192). The evaluations themselves stimulated agents of further change in policymaking (Palumbo, 1987:12). The findings generated new debate among participants in the problem, policy, and political streams. In the political stream, New York Governor Mario C u o m o , a former baseball center fielder, scored a hit with voters demanding tougher action against crime by promising three strikes legislation for New York (Fisher, 1994); Governor Christine Todd Whitman campaigned for a three strikes law in New Jersey (Gray, 1994). These concerns opened a new policy window, an opportunity for the generation of new policy proposals. Although the evidence in the policy stream showed the problems generated by determinate, mandatory, and minimum sentencing in trying to balance the consideration of the needs of the individual with the needs of the system (Meierhoefer,

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M.A. SAINT-GERMAINand R. A. CALAMIA

1991:897), incrementalism prevailed, carried away by institutional forces and the political exigencies of the moment. Rather than rethinking either the mandates versus guidelines system or the increasing use o f minimum prison time, the new act strengthened these policies and implemented them even more widely. The alternative that was finally adopted, the Violent Crime Control and Law Enforcement Act of 1994, incorporated a bipartisan proposal known by its popular name of "Three Strikes and You're Out." (This is something o f a misnomer, because after three strikes one was in for life.) While both the executive and legislative branches worked together to facilitate passage o f this act, U.S. Senator Bob Dole delivered much of the bipartisan support by endorsing certain aspects of the crime bill. One of the provisions of the act that legislators found most appealing to citizens' anticrime sentiment was Title VII, Section 70001, mandatory life imprisonment for persons convicted of certain felonies. This penalty was to be imposed in cases where a person convicted of a third federal felony had been previously convicted, in a court either of the United States or of a state, o f two or more serious violent felonies or one or more serious violent felonies and one or more serious drug offenses. In these cases, mitigating circumstances are not to be allowed (Reibstein and Carrol, 1994:87). This was by no means an entirely new policy. Precedents also had been set outside the federal government. For example, by 1978, the Illinois sentencing r e f o r m statute (HB 1500) already contained a provision for mandatory life sentences for "habitual o f f e n d e r s - t h o s e convicted of a third 'forcible offense' such as murder or armed robbery" (Goodstein and Hepburn, 1985:53). It is quite evident that this new get-tough-on-crime policy is simply another mandatory minimum, an incremental change to an evolving system that went from using suggested guidelines to using mandates and minimums. CONCLUSIONS The prison population doubled between 1973 and 1983, prior to the adoption of sen-

tencing guidelines, with an incarceration rate of 210 persons per 100,000 population (Reibstein and Carrol, 1994:21). After the guidelines, the prison population again doubled between 1983 and 1993. The U.S. now has over one million persons incarcerated and a rate of 373 convicts per 100,000 population, the second highest rate in the world surpassed only by Russia (Holmes, 1994; Spillane, 1994). Outlays for operations tripled from 1973 to $5.5 billion per year in 1983 (Austin and Krisberg, 1985:27). The number of inmates has grown as inputs into the criminal justice system (new convictions) increase, length of stays are longer, and outputs (through parole or indeterminate sentencing) decrease. The proportion of defendants who are brought before federal judges and who are sentenced to serve some prison time has increased from about 45 percent to about 90 percent (Weigel, 1988: 106). A larger work load is being generated for federal district and appellate courts as the facts o f the severity of the crime or the criminal history of the defendant increasingly are contested in order to avoid situations with high mandatory minimums (e.g., life sentences). In a system that depends on 90 percent of the persons charged pleading guilty (albeit to lesser charges), the number of jury trials may increase as a defendant facing a high mandatory minimum may prefer to take a chance at being acquitted (Weigel, 1988:96). Other unanticipated developments include the large number of nonviolent, drug related cases falling under mandatory minimum life sentences, which originally were anticipated to affect violent offenders (U.S. Sentencing Commission, 1991:10). Incarceration rates for African Americans are 1,432 per 100,000, over seven times the rate for Caucasians (203 per 100,000) (Holmes, 1994). Another problem is the impact of mandatory minimums on Native Americans who live on federally owned lands, where all crimes are federal offenses (Kaminer, 1994:105). Dissension within the ranks of the judiciary also is growing. A California judge recently refused to apply that state's new mandatory minimum law, arguing that the offenses the defendant was charged with did not constitute a "strike" (California judge, 1994).

Three Strikes and You're In

The addition of the three strikes proviso to existing federal statutes may be shown to be only an incremental and not a fundamental policy change. As Hayes (1992:197) notes, however, incremental policy changes accrued over time may not add up to desirable policy. Thus, this incremental addition may provoke some more fundamental decisions concerning the criminal justice system in the future. REFERENCES Adams, M. A. (1994). The federal sentencing guidelines as legal process jurisprudence. American Criminal Law Review 31(2):259-88. Alschuler, A. W. (1978). Sentencing reform and prosecutorial power: A critique of recent proposals for "fixed" and "presumptive" sentencing. In Determinate sentencing: Reform or regression?, National Institute of Law Enforcement and Criminal Justice. Washington, DC: Proceedings of the Special Conference on Determinate Sentencing, June 2-3, 1977. Alschuler, A. W., and Schulhofer, S. J. (1989). Judicial impressions of the sentencing guidelines. Federal Sentencing Reporter 2(3):94. American Friends Service Committee. (1971). Struggle for justice: A report on crime and punishment in America. New York: Hill and Wang. Anderson, J. E. (1994). Publicpolicy-making: An introduction. 2nd ed. Boston: Houghton Mifflin Austin, J., and Krisberg, B. (1985). Incarceration in the United States: The extent and future of the problem. Annals o f the American Academy o f Political and Social Science 478:15-30. Bachrach, P., and Baratz, M. S. (1970). Power and poverty. New York: Oxford University Press. Berke, R. L. (1994). G.O.P. sees crime as a major issue. New York Times, 22 January, 9. Brown, J. B. (1992). The sentencing guidelines are reducing disparity. American Criminal Law Review 29(3): 875-88. Calamia, J. R. (1994). Interview by Robert Calamia. E1 Paso, Texas, 23 October. California judge refuses to apply a tough new sentencing law. (1994). New York Times, 20 July, A9. Feinberg, K. R. (1991). The federal guidelines and the underlying purposes of sentencing. Federal Sentencing Reporter 3 (6):326. Fisher, I. (1994). Why "three-strike" sentencing is a solid hit this season. New York Times, 25 January, B1. Fogel, D., and Hudson, J., eds. (1981). Justice as fairness: Perspectives on the justice model. New York: Anderson Publishing. Ford Foundation. (1967). A ndjusticefor all. New York: Ford Foundation. Frankel, M. E. (1972). Criminal sentences: Law without order. New York: Hill and Wang. Freed, D. J. (1992). Federal sentencing in the wake of guidelines: Unacceptable limits on the discretion of sentencers. Yale Law Journal 101(8):1681-1754. Frost, M. L. (1982). Sentencing reform: Experiments in reducing disparity. Beverly Hills, CA: Sage Publications.

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fifteen months. American Criminal Law Review 27:231-88. Spillane, M. (1994). String 'em up. The Nation, 21 November, 599. Tonry, M. (1989). Are the U.S. sentencing guidelines working well? Federal Sentencing Reporter 2(4): 122-26. Ulemen, G. F. (1992). Federal sentencing guidelines: A cure worse than the disease. American Criminal Law Review 29(3):899-906. U.S. House of Representatives. (1994). Violent Crime Control and Law Enforcement Act o f 1994. Washington, DC: U.S. Government Printing Office. U.S. Sentencing Commission. (1991). Special report to Congress: Mandatory minimum penalties in the federal criminal justice system. Washington, DC: U.S. Government Printing Office. U.S. Sentencing Commission. (1993a). Annual report. Washington, DC: U.S. Government Printing Office. U.S. Sentencing Commission. (1993b). Guidelines Manual Appendix C: Amendments to the Sentencing Guidelines Manual. Washington, DC: U.S. Government Printing Office. von Hirsch, A. (1985). Past or future crimes: Deservedness and dangerousness in the sentencing o f criminals. New Brunswick, N J: Rutgers University Press. Weigel, S. A. (1988). The Sentencing Reform Act of 1984: A practical appraisal. UCLA Law Review 36(1):83-105. CASE CITED Mistretta v. United States, 488 U.S. 361 (1989).