Three strikes is good for baseball but bad for nursing homes

John O'Connor
John O'Connor

Even if you are not a baseball fan, you are probably familiar with the concept of three-strikes-and-you're-out.

There's a certain elegance to the phrase. Maybe that's why it tends to get borrowed for use in other scenarios. One place where the concept has no place is a courtroom. Yet that's exactly what will happen if a Texas lawmaker gets his way.

Last week, State Sen. Charles Schwertner (R) introduced three strikes legislation. The measure would shut down any Texas nursing facility that receives three serious safety and heath violations. Schwertner, an orthopedic surgeon by trade with a degree in pharmacy, is clearly fed up. He says many facilities are acting as scofflaws, and are essentially treating sanctions as little more than a cost of doing business.

He may have a point. And his frustration is understandable. Unfortunately, his approach is not. For if there is one thing that recent history has taught us, it's that three-strike laws often cause more harm than good.

Consider California, the granddaddy of this approach. Mike Reynolds helped put it in place after his daughter was the victim of a brutal, senseless murder. The California statute that took effect in 1994 offered a severe counterpoint to lenient laws that put habitual offenders quickly back on the streets. The problem however, is that the law unintentionally created an unfair criminal justice system. Perhaps not surprisingly, Californians voted to repeal its mandatory sentencing provisions in 2012.

Anyone familiar with my blog knows I am not a fan of yo-yo facilities. For the uninitiated, these are nursing homes that generally do a lousy job, and then get their act together just enough at crunch time to avoid being closed. Frankly, they are an embarrassment to any provider trying to deliver quality resident care. And a three strikes law might help shut them down. Unfortunately, it might also have the unintended consequence of shuttering other facilities that don't deserve to be put out of business.

There is a name for the collective group of agencies and processes established to control crime and impose penalties on law violators. It's called the justice system. As the name implies, it is supposed to be just.

But a three strikes approach is anything but. By imposing mandatory sentences, they remove judicial discretion. They can also impose sentences on facilities whose F-tags do not warrant such harsh punishment. At their heart, they run roughshod over the notion that a punishment should fit the crime.

Nursing facilities that do not play by the rules need to be held fully accountable. But a Kafkaesque system is hardly the best way to make sure that happens.

John O'Connor is McKnight's Editorial Director.

Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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