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 settings. 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.
Recently, 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 can 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.
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, it removes judicial discretion. It also can impose death sentences on facilities whose F-tags do not warrant such harsh treatment. At heart, the approach runs 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 response goes way too far. n
From the March 01, 2015 Issue of McKnight's Long-Term Care News
