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Three strikes and you’re out

Nov 9, 2012, 7:41 AM EDT

You're out

Starting in the mid-90s, states started adopting habitual offender laws which put criminals who have been convicted of multiple felonies away for life. You probably know such laws by their popular name: “three strikes and you’re out” laws.

Gideon Cohn-Postar wonders took a few moments to stop and think about how random it is that someone’s fate and freedom can be dictated by a baseball rule:

What if, like balls, the number of strikes had varied a bit in the late 1800s? The fact that balls were so variable suggests that it was entirely possible that in slightly different circumstances, four strikes could have meant you’re out … the only reason four and three seem “natural” is because they are what we have grown accustomed to … The almost certainly rhetorical question I have struggled with the most however, is whether the only reason we have Three Strikes Laws at all, and the debate, misery, and justice they imply, is because of an arbitrary rule in what was once a children’s game.

It makes one reflect, as Cohn-Postar does with a series of rhetorical questions, upon baseball’s place in the national psyche. About how weird it is, when you really think about it, that lawmakers could so easily adopt a baseball analogy for matters of such extreme importance.

It makes me wonder what the justice system would look like if baseball had not shaped so much of the culture and the language. Would we have “six fouls and you’re out” if basketball was as big a deal?  Should football’s popularity mean that “four downs and you punt?” makes more sense, culturally speaking?

My word, can you imagine what it would be like if one broke the law in a world where bowling was the national pastime? That would be chilling indeed.

  1. number42is1 - Nov 9, 2012 at 7:48 AM

    I’m fairly certain that most criminals out there would prefer to have the 4th down option.

    • bigharold - Nov 9, 2012 at 10:48 AM

      Yeah but if you don’t get 10 yards it’s three and out, ..

  2. Shafer's Dealer - Nov 9, 2012 at 7:52 AM

    How many are out on a bad check swing call and how many make it on a dropped third strike?
    Rules or even more the “umpires” are far from perfect.

    And don’t get me started on the Jury fans…

    The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury. It is a shame that we must continue to use a worthless system because it was good a thousand years ago…I desire to tamper with the jury law. I wish to so alter it as to put a premium on intelligence and character, and close the jury box against idiots, blacklegs, and people who do not read newspapers. But no doubt I shall be defeated–every effort I make to save the country “misses fire.”
    -Mark Twain

    • historiophiliac - Nov 9, 2012 at 9:49 AM

      What do you want instead of juries then?

      • cur68 - Nov 9, 2012 at 10:09 AM

        I don’t think that quote means anyone’s against juries, per se. I think what we got here is an anti dumb people tirade. Frankly, I kind of see the point. If my fate hung in the balance I’d want to be judged by smart people. Providing I didn’t sod it, of course. If I DID do it…bring on the clowns.

      • cur68 - Nov 9, 2012 at 10:15 AM

        Uh…”sod it”?? How did I type that? Man. What an epic fail. Y’know, I might be qualified for jury duty…

      • historiophiliac - Nov 9, 2012 at 10:31 AM

        I’ll take a stupid jury over Antonin Scalia any day. Smart people on a jury does not necessarily guarantee justice. Karl Rove is a smart guy. Which of you wants to put your fate in his hands? Assiness is worse than stupidity. But, anyway, I’m not okay with instituting strict competency requirements for jury service. That smacks of the voting requirements of the 19th & 20th century (pre-Civil Rights movement) — and if you think lawyers won’t find a way to manipulate those requirements, you do not belong on your own jury. None of you are getting better justice from having a professional on your jury than you would my family member who is learning disabled.

      • indaburg - Nov 9, 2012 at 10:48 AM

        Well said, ‘philliac. I think instituting competency requirements sets a dangerous precedence that can be horribly exploited. I have little patience for idiots personally, but dealing with an intelligent dickhead is far worse than dealing with a benevolent ignoramus. (The ignoramus dickheads are the worst.)

      • historiophiliac - Nov 9, 2012 at 11:14 AM

        I don’t disagree with Twain on too much — he’s my second favorite humorist of that time — but this is one.

      • Shafer's Dealer - Nov 9, 2012 at 1:46 PM

        “No freeman shall be taken or imprisoned, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his own peers, or by the law of the land.”

        As time passes and more people procreate, I am surrounded by less and less of my peers…

      • stex52 - Nov 9, 2012 at 1:50 PM

        Hey Cur, sod is a popular British epithet. You say “Sod it!”………Well you kind of get the drift. I seriously thought that was what you were saying at first. It seemed to fit.

    • indaburg - Nov 9, 2012 at 10:37 AM

      On the one hand, I understand why the system is the way it is. We want juries whose minds haven’t been tampered with by the slant of the newspapers, internet, television, and radio. Frequently when it comes to trials, especially sensational ones, the media gets it wrong since the reporters are not privy to a lot of information.

      On the other hand, I would personally hate to rest my fate on a system which places a premium on ignorance. I wouldn’t want my fate decided by a bunch of people who have no curiosity about the world around them.

      In spite of its imperfections, I think the system the way it is works pretty good. It’s not perfect, but neither are we.

      • paperlions - Nov 9, 2012 at 10:59 AM

        Yes, but selecting the willfully ignorant pretty much guarantees that many of your jurors won’t be particularly intelligent or have any critical thinking skills whatsoever.

        Whenever I’ve been called for jury duty, I spend the entire time making mental notes to see what kinds of people they pick. If you are in any position of authority, you won’t be picked. If you are in any field that requires analytical skills or that deals heavily with data, you won’t be picked. Both sides are looking for people that are used to taking direction and that can be swayed by argument rather than information.

      • indaburg - Nov 9, 2012 at 11:30 AM

        I have only been called to jury duty once, and I wasn’t picked. My mother, who is no dummie and was an accountant by trade, a field that relies on analytics and data, has surprisingly been picked twice to serve on juries, once in NY and once in Florida. I don’t presume to know what it is in the minds of the attorneys when they select jurors.

  3. sophiethegreatdane - Nov 9, 2012 at 7:59 AM

    Let us not forget that three is also the number upon which thou shalt pull the pin on the Holy Hand Grenade of Antioch.

    Coincidence? Not likely.

    • sabergid - Nov 9, 2012 at 2:14 PM

      Then shalt thou count to three, no more, no less. Three shall be the number thou shalt count, and the number of the counting shall be three. Four shalt thou not count no either count thou two, excepting that thou then proceed to three. Five is right out!

  4. heyblueyoustink - Nov 9, 2012 at 8:06 AM

    The punting idea might help that whole prison overcrowding problem.

  5. rockthered1286 - Nov 9, 2012 at 8:11 AM

    I’ve seen the judicial system balk a few times now…

  6. indaburg - Nov 9, 2012 at 8:17 AM

    Like the author of the blog you linked, I am also in severe baseball withdrawal and I am in the middle of rewatching Ken Burns’ Baseball. The first installment talks about the rules and their establishment, and I too wondered how they settled on three strikes or three outs and how much significance the number three has in the game. Nine men, the number three being a factor of nine, ninety feet between the bases, another three as factor, and so on. Although Burns doesn’t go into it, I thought back to my college religion classes and childhood Catholic classes and how the number 3 is very symbolic in Christianity–the trinity being its very foundation, the Three Wise Men and so on (I know the number 3 is significant in other religions, but this country and the game were primarily founded by men with Judeo-Christian ethics.) I guessed that baseball’s founders were enamored with the number three due to its religious symbolism. I never considered how it would apply to the laws such as Three Strikes and You’re Out, but if my theory holds true, it can all be traced back to (blamed on?) religion.

    • mrwillie - Nov 9, 2012 at 10:12 AM

      Glad I am not the only one. I’ve been watching it on Netflix during lunch, already up to Inning 6. For a few minutes it kinda seems like spring time.

    • sportsdrenched - Nov 9, 2012 at 11:06 AM

      I think there is a lot more religous symbolism in secular society than people are paying attention to.

      I’m gonna go raise some cain now.

  7. jkcalhoun - Nov 9, 2012 at 8:46 AM

    About this I have only three things to say: good morning, good afternoon, and good night.

  8. ddjesus - Nov 9, 2012 at 8:54 AM

    over the line! MARK IT ZERO DONNY!

    • sophiethegreatdane - Nov 9, 2012 at 9:12 AM

      I don’t roll on Shabbos.

      • sdelmonte - Nov 9, 2012 at 9:35 AM

        Finally saw that for the first time over the summer. Didn’t see what the big deal was.

        But darn it if that film hasn’t been resonating. It’s a work of stealth genius.

    • nolanwiffle - Nov 9, 2012 at 9:47 AM

      Nobody f**ks with the ddjesus?

    • sophiethegreatdane - Nov 9, 2012 at 3:32 PM

      “Finally saw that for the first time over the summer. Didn’t see what the big deal was.

      But darn it if that film hasn’t been resonating. It’s a work of stealth genius.”

      Stealth genius is a perfect description. I fell fast asleep the first time I saw it. But something stuck with me, and the next time I started giggling more and more. Now, it’s outright funny, and resonates even more. Definitely a movie you have to watch many times to fully grasp. You have to check in to see what condition your condition is in.

    • mazblast - Nov 10, 2012 at 2:51 PM

      Shut up, Donny, you’re out of your element.

  9. Joe - Nov 9, 2012 at 9:04 AM

    In bowling it would be “three strikes and you’re a turkey.”

  10. hisgirlgotburrelled - Nov 9, 2012 at 9:30 AM

    Some states are 2 strikes before an extended sentence, some are 4. These can still be referred to as strikes against your record without any reference to baseball.

    I find it more likely they decided that a 2nd felony was too few, a 4th was too many, but a 3rd was the right amount and then put a catchy and familiar name on it to make it popular. The name was based on the law, not that the law based on the name. Had baseball been 4 strikes it might have been named something else, perhaps not even a sports reference at all.

    • bigxrob - Nov 9, 2012 at 10:09 AM

      So, you’re going with the Goldilocks rule?

      • hisgirlgotburrelled - Nov 9, 2012 at 11:43 AM

        Better than thinking 3 strikes is the rule because that’s the way a game does it.

  11. bigleagues - Nov 9, 2012 at 9:32 AM

    Two Yellow Cards and your out!

  12. Stiller43 - Nov 9, 2012 at 10:54 AM

    Wouldnt it be “3 downs and you punt?”

    Sorry. I know how you dont like the foosball, but typically people punt on 4th down, not 5th.

    • historiophiliac - Nov 9, 2012 at 11:18 AM

      Personally, I love that he doesn’t know this.

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