America - Andrew Stephen on 50 years for stealing Snow White

In California, a man stole a few kids' videotapes from his local Kmart. Now the US Supreme Court wil

Why is it that Britain and its chattering classes are so easily seduced by any old brash-sounding American idea? Is it the pervasive effect of American popular culture on the UK, I wonder? My heart sinks, for example, when I hear the likes of David Blunkett urging Britain to adopt a tough, "three-strikes-and-you're-out" policy on crime. I suspect few British people (including Blunkett) even know exactly what a "strike" actually is: in baseball, it is when the batsman fails to hit a ball judged hittable by the umpire. The batsman is out, to resort to cricketing terminology, if he is given three strikes by the umpire - and a lawbreaker receives (to quote another revered Americanism) "zero tolerance" once he has committed a third offence.

But all too typically, just as this idea is catching on in Britain, so it is gradually being discarded as a failure here. In California - where the law was introduced in 1994 after a 12-year-old girl was murdered by a criminal on parole and which uses the law far more than any other state - an appeals court has struck down a conviction on the grounds that it was cruel and unusual and thus unconstitutional. So before you get too carried away, David, be aware that the US Supreme Court may also soon deem the law unconstitutional and thus un-American. But, having discovered (like Californian politicians before you) that it is hard to go wrong when you appear to be tough on crime, will you now deem it to be anti-British, too?

The case in California concerns 37-year-old Leandro Andrade, who received a sentence of 50 years to life for stealing $153.43 worth of kids' videotapes from his local Kmart. He had committed several crimes in the 1980s, when he was a heroin addict, but had gone clean until he was convicted of stealing the videotapes (including Snow White). If the Supreme Court overturns the appeals court's ruling, he will not be eligible for parole until he is 87. He is one of more than 7,000 criminals who have gone to jail in California with a "third-strike" sentence; for more than half, the third crime was a misdemeanour or victimless crime such as drug possession. And around 350 are serving out wildly long sentences for petty theft, too.

The result is that of California's population of 38 million, around 200,000 are in prison; across the country as a whole, the prison population has risen from 300,000 two decades ago to more than two million today, around half of them for non-violent, victimless crimes. This is partly because 25 more states followed the Californian example, and Congress itself passed such a law. But nearly all the other states specified (or later changed their law to specify) that a third strike had to involve a felony rather than a minor theft or misdemeanour.

But the claim, inevitably, is that the law works: the Republicans who introduced the law in California insist that it has cut crime in the state by 40 per cent. Crime has certainly decreased there, but only in roughly the same proportion as across the rest of the country. In economic good times (like the 1990s), crime decreases; in Washington, DC, crime decreased by almost as much as in California, without DC having a "three-strikes-and-you're-out" law. And most prosecutors are now wary of demanding big sentences for petty offences.

Thus the future of the law and of hapless prisoners such as Andrade now rests with the US Supreme Court. In its ruling, the appeals court decreed that "the harshness of the sentence [for Andrade] appears grossly disproportionate to the gravity of the offence and culpability of the offender". Whether the Supreme Court, with its right-wing leanings, rejects or supports the appeals court is probably a 50:50 bet - but that the case is before the Supreme Court at all shows that the "three-strikes-and-you're-out" law was a one-decade wonder that is self-evidently neither fair nor workable.

I've written here before of the ferocity of the American judicial and penal systems - as I write Texas is due to go on an execution marathon, putting nine prisoners to death in 31 days - but it is dismaying indeed to hear the alien tough-guy vocabulary of American cheap movies, of zero tolerance and three-strikes-and-you're-out, being adopted as the norm in Britain.

The case of Leandro Andrade shows that American justice can be unspeakably brutal. The British chattering classes will continue to twitter on about the novel toughness of America. But for the likes of Blunkett, the issues are real. Is he adopting this American policy merely as part of a cheap political rhetoric, knowing that a politician perceived as being tough on crime can only win? Or does he really believe in a law that is already being phased out here?

If the answer is the latter, you still have a lot to learn, David.

Andrew Stephen was appointed US Editor of the New Statesman in 2001, having been its Washington correspondent and weekly columnist since 1998. He is a regular contributor to BBC news programs and to The Sunday Times Magazine. He has also written for a variety of US newspapers including The New York Times Op-Ed pages. He came to the US in 1989 to be Washington Bureau Chief of The Observer and in 1992 was made Foreign Correspondent of the Year by the American Overseas Press Club for his coverage.

This article first appeared in the 13 May 2002 issue of the New Statesman, The people take to the streets again