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Be tough, and smart, on crime by: Nancy Gertner

Be tough, and smart, on crime- the murder of Melissa Gosule – horrible as it was – does not justify the “three strikes and you’re out” bill
By Nancy Gertner
nancy gertner
February 22, 2012 Boston Globe Op-Ed

IT WAS a despicable crime, and ended a life full of promise. A young woman, 27, was raped and killed in 1999 by a violent criminal who had picked her up on the side of the road after her car broke down. The perpetrator deserved to be caught, tried, and punished severely.

But the murder of Melissa Gosule – horrible as it was – does not justify the “three strikes and you’re out” bill that state lawmakers are considering. “Melissa’s bill,” as it is called, is supposedly aimed at keeping the most dangerous repeat offenders behind bars, without the possibility of parole. Its backers insist the bill is designed only for the worst of the worst, the habitually violent offenders presumably like Michael Gentile, the man convicted of Melissa’s murder.

What few are saying, however, is that Gentile’s record did not fit the “worst of the worst” profile. He had a non-violent adult record – petty larcenies, breaking and entering, marijuana possession, disorderly conduct, trespassing, and shoplifting – and the dispositions imposed by the various courts reflected the petty nature of the crimes. Should the judge who had Gentile before him on the second disorderly conduct charge, or the second trespassing charge, have thrown the book at him? Should the judge who sentenced Gentile for breaking and entering and larceny have given him more than two years in prison, when that was his first incarceration? In fact, nothing about his criminal record would have predicted that he was capable of murder.

Here is the problem: If the goal of the bill is to incapacitate people like Gentile, then Massachusetts will be locking up nonviolent repeat offenders for a long time. If the goal is to target “the worst of the worst,” Gentile would not have been among them.

Still, some say that repeat offenders should be put in jail for years in order to stop them from a life of crime. But that’s how California started on a path to overcrowded and dangerous prisons, leading to a court decree requiring the release of thousands of prisoners. California had used its three-strikes law to jail far more offenders than all the other states and the federal government combined.
The murder of Melissa Gosule – horrible as it was – does not justify the “three strikes and you’re out” bill.

To be sure, the proposed Massachusetts bill is narrower than California’s. In fact, the backers of the bill insist that it will not make a substantial difference in imprisonment rates because the state has had a habitual offender law since 1887, and it has not been used very much. The 1887 law required two prior crimes for which the offender was imprisoned more than three years in order to qualify for the maximum term of imprisonment (albeit with parole). If prosecutors are not charging offenders under this law, why is a new one necessary? Is it that prosecutors want this bill precisely to widen the net of eligible offenders, arguably to catch those like Gentile?

The other crime that provided the basis for the Massachusetts bill was the tragic murder of Woburn police officer John Maguire at the hands of a parolee, Domenic Cinelli. Cinelli had been sentenced to three life terms in prison under the 1887 habitual offender law, among other provisions, but he was still available for parole. If the Legislature wanted only to address the Cinelli situation, it could have drafted a much more targeted bill – no parole for offenders subject to multiple life terms, for example.

We surely need to punish repeat nonviolent offenders. But we also have to determine what works to control their behavior, and what makes sense as a criminal justice policy. Lengthy incarceration for nonviolent offenders, just because we don’t have better alternatives, does not make sense. We have to ask the hard questions: What combination of punishment along with drug treatment, reentry programs, and intensive supervision will deter someone like Gentile? The answer is not jail, jail, and more jail – not if we want to have the resources for the policies that we know are effective.

We have to reserve prisons and scarce correctional resources for the most violent. We need to be not just tough on crime, but smart about it. Putting a name on a bill – even a name that reminds us of a thoroughly despicable crime – is no substitute for real reform.

Nancy Gertner, a retired US District Court judge, is a professor at Harvard Law School.

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