Posted on: Friday, March 7, 2003

Three-strikes law too harsh for Hawai'i

U.S. Attorney Ed Kubo posits that if Hawai'i had adopted a "three strikes, you're out" law, Honolulu police officer Glen Gaspar, who was fatally shot Tuesday at a Kapolei ice cream parlor, might be alive today.

His accused killer, Shane Mark, certainly fits the profile of a career criminal. His 14 convictions include a misdemeanor assault of a police officer, first-degree burglary and auto theft.

Sure, Mark couldn't have shot Gaspar had he been locked up in prison. Then again, does one highly unusual case of a police shooting — the last fatality occurred in 1987 — warrant turning Hawai'i into a three-strikes state? Let's consider the ramifications of adopting this law.

First of all, three-strikes was the result of a highly politicized groundswell. California voters and lawmakers approved it in 1994 after a parolee snatched a Petaluma schoolgirl from her own bedroom and later murdered her.

It was an unusually heinous crime, and the killer, Richard Allen Davis, a repeat offender, would have received the death sentence regardless of three-strikes. In most states, harsh sentencing provisions for serious violent offenders have long been on the books.

While we sympathize with impatience with a "revolving" prison door for career criminals and mourn the loss of a fallen police officer, we're wary of Hawai'i adopting three-strikes in the politically charged aftermath of a police shooting. Such a crime is unusual in Hawai'i.

Moreover, anecdotal evidence suggests life sentences under three-strikes are often arbitrarily meted out and disproportionate to the crime.

Consider the two California three-strikes cases brought before the U.S. Supreme Court on grounds that they were unconstitutionally cruel and unusual punishment.

In one case, a defendant with prior felony convictions was sentenced to a minimum of 25 years in prison for trying to make off with golf clubs stuffed down one pant leg. In another, the defendant, a heroin addict, got 50 years for stealing $152 worth of children's videotapes from Kmart. His prior convictions had all been nonviolent.

In a 5-4 ruling, the high court upheld both sentences, finding them not too harsh for repeat criminals. We agree with the dissenting opinion of Justice Stephen Breyer, who said "the punishment is grossly disproportionate to the crime."

Whatever happened to judicial discretion? Judges ought to be able to evaluate a variety of factors before they dole out punishment. But with minimum mandatory sentencing laws, they just add up numbers without taking into account the mitigating circumstances of a crime.

It seems highly likely that a three-strikes law in Hawai'i would necessitate an expansion of prison facilities. That's a burden on taxpayers because incarceration — even the sort that contributes nothing toward an inmate's rehabilitation — does not come cheap.

So by all means, let's be tough on repeat violent offenders, on a case-by-case basis. But let's not hastily adopt one-size-fits-all laws that are based on the exception rather than the rule.