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In November 1999, the Institute of Governmental Studies at the University of California, Berkeley, released a study by Franklin Zimring, Sam Kamin, and Gordon Hawkins entitled Crime and Punishment in California: The Impact of Three Strikes and You're Out. In the Fall 2000 issue of the Duquesne Law Review, we published our critique of the Zimring study. In the Spring 2002 issue of the Duquesne Law Review, Zimring and Kamin responded to our critique. Also in the Spring 2002 issue was a response to our critique by Professor Michael Vitiello.
The fundamental defect of the Zimring study and all similar statistical studies is that the world of probability is substituted for common sense. Zimring found that Three Strikes had no deterrent effect. This "finding" was widely reported by a sympathetic media. The message was simple: harsher sentences meted out to habitual criminals do not have a significant impact on crime. Therefore, the public's "anti-offender sentiments" are unscientific and consequently illegitimate. Crime and punishment have been deconstructed. Following the logic of this deconstruction, punishment has no relation to crime or the crime rate. Indeed, the punitive regime of Three Strikes is wholly irrational and therefore somehow immoral. The commonsense conclusion, however, offers a different prospect.
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