Once again, a U.S. Supreme Court decision flies in the face of the conservative politicians who thought that the justices were there to do its bidding. In a remarkable 8-1 decision, the SCOTUS ruled that the “Three Strikes Laws” in states across the country were unconstitutional. And the Justice who wrote the opinion for the majority?  None other than the Honorable Antonin “Jiggery-Pokery Gobbledygook” Scalia.

The intention of the “Three Strikes” law was to “get tough on crime.” It’s an issue that swept many politicians into office on a wave of public outrage over repeat offenders. Not coincidentally, such laws have made a whole lot of money for private prison companies, such as the Corrections Corporation of America.

Habitual or persistent offender laws (to use the legal term) are not exactly new. The state of New York passed such a law in the 1890s. However, the judges in cases under the law were allowed to exercise some discretion; the offender did not necessarily face a life sentence.

More recent “three strikes” laws are more draconian. Texas (where else?) was the first to pass such a law in 1974. It resulted in mandatory life sentences for non-violent offenders, though it was possible for a convict to eventually be granted parole. Starting in the 1990s, however, 25 more states, including Washington and California, passed these “get-tough-on-crime” statutes – often, by overwhelming majorities. Of these, California’s law was the broadest – and the most controversial.

Assembly Bill 971 was written and came before California voters in the wake of one of the most horrific cases in U.S. history, involving the abduction and murder of 12-year-old Polly Klass in 1993. Given the nature of the crime and the fact that Polly’s murderer, Richard Allen Davis, was a repeat offender, it is was not surprising that voters across the country enthusiastically supported laws to put such psychopaths away for good.

Unfortunately, these laws were written too broadly. Instead of reducing violent crime, habitual offender laws have simply incarcerated more and more people for petty and non-violent offenses. Today, the U.S. has a greater percentage of its population behind bars than any other nation on the planet. It’s greater than the population of the old Soviet gulags under Stalin. “Three strikes” laws are a big part of that equation.

At the center of the recent case is a member of Aryan Liberation, a white supremacist and terrorist group. In 2010, twice-convicted Samuel J. Johnson was arrested for possession of a firearm in violation of his parole. The prosecutor in the case invoked a federal 1984 “three strikes” statute called the Armed Career Criminal Act (ACCA). The law mandates a minimum 15-year sentence for repeat offenders, which can be as long as life.

Under the ACCA’s “residual clause,” a violent criminal is defined as anyone who “otherwise involves conduct that presents a serious potential risk of physical injury to another” For the SCOTUS, the question was whether simple possession of an illegal firearm fit that definition. To eight of the nine justices, it was too vague.  In the majority opinion, Justice Scalia writes:

the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements. How does one go about deciding what kind of conduct the ‘ordinary case’ of a crime involves? A statistical analysis of the state reporter? A survey? evidence? Google? Gut instinct?”

This ruling will have little immediate effect on habitual offender laws in general. However, it has finally raised the issue of vague and arbitrary criminal statutes that can be abused for political and financial gain.

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K.J. McElrath is a former history and social studies teacher who has long maintained a keen interest in legal and social issues.