In 1994 my home state of California passed an initiative measure that was officially titled “Three Strikes and You’re Out.” The Three Strikes Law, known in other states by the more technical sounding name of the Habitual Offender Act, ostensibly has nothing to do with baseball. It establishes increased penalties, (25 years to life imprisonment in California’s case) for a criminal who commits three felony crimes. I began thinking about this law recently because two days ago, amidst all the Presidential hoopla, California voters passed Proposition 36, which altered the existing Three Strikes Law to emphasize punishment of violent offenses, and to shorten prison terms for those who did not commit violent crimes.
Intrigued by talk of the ever-controversial Three Strikes Law, and in clear baseball withdrawal with the World Series over, I began to consider the apparent baseball connection to this law. I did a bit of research and was slightly surprised to note that not only was “Three Strikes and You’re Out” the wording that actually appeared on the ballot, such laws, no matter their official title, are referred to in legal jargon by the acronym TSAYO. Even stranger to me was the fact that the connection of a law that shapes lives, deaths, and demographics is so explicitly based on an arbitrary rule in baseball.
One scholarly paper I found referred to this connection offhand, as if it were entirely incidental, mentioning that, “President Bill Clinton received lengthy applause during his State of the Union address when he touted the law with the catchy baseball name.” Or labeling a chilling graph about convictions like this: “California ‘Strikes Out’ 4 Times as Many Persons As All Other 3-Strikes States Combined”
A less scholarly but still extensively detailed article described how baseball players are allowed three strikes in an at bat before they are out as a preamble to explaining how “the same concept is invoked in the language of habitual offender laws, as three strikes laws are more properly known, as in ‘three strikes and the offender is out of society.’”
So, this strongly enforced and significantly impactful law is based on the logic of the baseball plate appearance. It was at about the time I realized this that I began to ask an absurd number of rhetorical questions about the history of the traditional inputs to the baseball plate appearance and its influence on the Three Strikes Laws.
The history of the three-strike strikeout has remained remarkably stable throughout baseball history, with only one real blip, as Joe Posnanski noted in his profile of deadball hurler Old Hoss Radbourn: "in 1887, for one year and one year only in the National League, they changed the rules so that it took FOUR strikes to get a strikeout. Could you imagine, say, Justin Verlander having to deal with that? Hey Justin, we changed the rules. It’s four strikes for a strikeout now. Yeah. But it’s also five balls for a walk. Go on, have some fun out there."
The number of balls that equals a walk, however, has not remained static throughout baseball history. It was not until 1889 that the various baseball associations and leagues agreed that four balls would equal a walk. In the preceding decades as many as nine balls had been required for a batter to get a free pass, with the number gradually decreasing starting in 1880 before settling in at the “natural” number of four.
So here begins the long chain of rhetorical questions:
What if, like balls, the number of strikes had varied a lot in the late 1800s? What if that magical year of 1887 had become the norm, and five balls and four strikes remained the rule. Such a change would not have inherently altered the structure of the game. After all, the only reason four and three seem “natural” is because they are what we have grown accustomed to.
How would the game have changed?
But perhaps even more meaningfully, how would our modern approach to crime legislation through Three Strikes Laws be different?
If batters and pitchers lived in a four-strike world, would cops and criminals battle in one as well?
How would it affect our perception of crime and criminals?
Would we have Four Strikes Laws instead of Three, or would we have none at all?
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 argument, misery, and debatable justice they imply, is because of an arbitrary rule in what was once a children’s game. If so, what does that tell us about the role of baseball in shaping America’s cultural and political mindset, and what does that tell us about our democratic, legislative, and judicial systems?
As I said, these are rhetorical questions, I truly do not have answers to them, and to me at least this is somewhat troubling. Chime in with comments if you think you have answers, or even if you just have more questions.