Current Commentary: Today’s Miserables Confront Javert’s Three-Strikes Law BY Larry M. Elkin

It cost $47,102 to house an inmate in aCalifornia state penitentiary in 2008. For 13 years, Gregory Taylor was one of the people Californians paid to keep locked up.

Taylor was jailed for trying to break into a church kitchen to find something to eat.

Taylor was homeless at the time and was coping with drug addiction. He had previously received food at the church and occasionally slept there, the pastor, Rev. Alan McCoy, testified. Taylor’s target was the kitchen, rather than any place where valuables would be kept, and his crime was nonviolent.

Despite these mitigating circumstances, Taylor was sentenced to 25 years to life in 1997. He had two prior convictions for robbery: one for stealing a purse that contained $10 and the other for attempting to rob a man on the street. Both were from the 1980s and neither resulted in injury. But, according to California law, three strikes mean you’re out. The law requires judges to hand down a minimum sentence with little room to consider individual circumstances.

Superior Court Judge Peter Espinoza recently amended Taylor’s sentence to allow for his almost immediate release. It is time that we amend the laws that create cases like Taylor’s as well.

The trend toward mandatory minimum sentences began on a state level in the 1970s and gained momentum in the 1980s, when the federal government imposed mandatory sentences for gun- and drug-related crimes. At the time, high crime rates threatened to turn many American cities into hollowed-out slums. Violent crimes committed by individuals who had already passed through the criminal justice system triggered alarm and indignation within communities.

It is impossible to argue with the results. Keeping criminals locked up longer leaves us with less crime. New York state’s minimum sentencing laws, known as the Rockefeller Drug Laws, contributed to the transformation of New York City from a murder capital to a relatively safe tourist town. In 2007, there werefewer than 500 murders committed in New York City for the first time since records began in 1963. In 1990, the city had 2,245 homicides.

But a sustainable system of criminal justice cannot rely on keeping as many people as possible locked up for as long as possible. For one thing, doing so is simply unaffordable. As states struggle to meet basic expenses, massiveprison expenditures continue to eat away at large chunks of their budgets. A May version of the California 2010-2011 annual budget allocated $9 billion to corrections and rehabilitation, more than 7 percent of the total budget. While the amount set aside for K-12 education dropped 2.1 percent from 2009-2010, the budget for corrections and rehabilitation was increased by 9.7 percent.

Mandatory minimum sentences lead to senseless non-decisions in which huge sums of money are spent and lives are ruined simply to comply with statutes, without allowing for any analysis of the particular situation.

The system was originally intended to reduce sentencing discrepancies to promote greater fairness. Instead it often leads to similar offenders being treated unequally. Federal laws, for example, distinguish between crack cocaine and other forms of the drug, even when the behavior in question is similar. This discrepancy has disproportionately affected African Americans, according to the California State Conference of the NAACP. The Conference reports that, before mandatory minimums for crack cocaine offenses came into effect, the average federal sentence for African Americans was 11 percent longer than the average sentence for Caucasians. After the implementation of the new laws, sentences for African Americans were 49 percent longer.

So why do these laws remain on the books? Largely politics. Officeholders and candidates are reluctant to oppose mandatory minimums for fear of being seen as soft on crime. Another factor is the failure of most people to empathize with petty criminals who run afoul of harsh sentencing laws. If you don’t know a Gregory Taylor, chances are good that you don’t care very much when he gets tossed in jail for decades for literally trying to steal a crust of bread.

Imprisonment and justice are not the same thing. We do not want to live in the sort of society depicted in Victor Hugo’s “Les Misérables.” Crime must be deterred and punished, but a harsh, relentless law that takes no account of the human condition can cost society far more than criminals do.

We need to return control to judges, who are in a position to consider the specifics of each case. Judges are not perfect. We will inevitably get many questionable and inconsistent sentences. But at least the legal system will be geared to dispense justice with understanding and common sense. Draconian and robotic sentencing laws predictably yield draconian and robotic results.

Larry M. Elkin, CPA, CFP®, is president of Palisades Hudson Financial Group a     fee-only financial planning firm heiadquartered in Scarsdale, NY. It offers estate planning, insurance consulting, trust planning, cross-border planning,      businessvaluation, family office and business management, executive financial planning, and tax services. Its sister firm, Palisades Hudson Asset Management, is an independent      investment advisor with about $950 million under management.