Implications of New Study on Sentencing for Three Strikes Drug Offenders

Friday, September 7, 2012 by Neil Barnes

Over half the states in the US implement some form of the three strikes law, which mandates that upon his or her third felony conviction, a felon must be incarcerated for a minimum time period. This period is normally longer than the ordinary sentence for the felony considered on its own. Additionally, three strikes sentences do not distinguish between violent and nonviolent felonies; in California, over 1,000 people were serving sentences based on the three strikes law at the end of 2010 solely for drug crimes.

If susceptibility to substance abuse or dependence can be scientifically ascertained, it could greatly aid in identifying potential repeat offenders and getting them proper rehabilitation treatment.”

The purpose of the three strikes law is to stop recidivists from committing more crimes. However, the effectiveness of the three strikes law as it stands has come under scrutiny in recent years. In fact, the voters of California will have the opportunity to reform the three strikes law this November. Proposition 36, if passed, would distinguish between violent and nonviolent crimes when determining prison sentences. Violent criminals would continue to be sentenced under the current three strikes rule while repeat nonviolent criminals will receive sentences twice the length of the ordinary sentence for that crime.

Proposition 36 is a step toward differentiating between violent and nonviolent crime when sentencing criminals under the three strikes act. But a recent scientific advance suggests further sentencing reform is possible, particularly for nonviolent substance abusers. A new study indicates that there are differences between the brains of substance abusers and people who refrain from abusing substances before they even try the substance.

While adolescents completed tasks, researchers monitored the brain activity of adolescents who had never consumed alcohol. After a few years and an introduction to alcohol, the same adolescents returned to the lab and were surveyed on their drinking habits. Researchers found that the children who had developed heavy drinking habits were the same adolescents who showed less activity in the frontal, parietal, temporal, and basal ganglia regions of the brain while completing tasks years earlier. Adolescents who showed more activity in those regions of the brain tended to not drink as heavily years later.

Although consuming alcohol is legal in the US, the study has implications for people who could be incarcerated under the three strikes law for illegal drug offenses. If susceptibility to substance abuse or dependence can be scientifically ascertained, it could greatly aid in identifying potential repeat offenders and getting them proper rehabilitation treatment.

Currently, less than 15% of prisoners who meet the criteria for substance abuse or dependence receive rehabilitative treatment while incarcerated. This figure may merely reflect a society that does not believe in the benefits of rehabilitative treatment. But it could also be a problem with determining who would benefit from rehabilitation. At present, the DSM-IV substance abuse and dependence criteria are used to determine if inmates have a substance problem. Because this criteria requires a fair amount of human judgment, there is room for deception and subjectivity. A more objective test of observing the activity of a person’s brain could establish substance abuse or dependence tendencies with more certainty. People with those tendencies could then be targeted for rehabilitation.

Although more research is necessary in this area, identifying potential repeat drug offenders using brain imaging could ensure proper treatment and reduce the possibility of second and third offenses, as well as help existing repeat offenders.