Three strikes laws are statutes enacted by state governments in the United States which require the state courts to impose a life sentence (usually with the possibility of parole) to persons who have been convicted of two or more serious criminal offenses. These statutes became very popular in the 1990s. Twenty-four states have some form of habitual offender laws.
The name comes from baseball, where a batter is permitted two strikes before striking out on the third.
The three strikes law significantly increases the prison sentences of persons convicted of a felony who have been previously convicted of two or more violent crimes or serious felonies, and limits the ability of these offenders to receive a punishment other than a life sentence. Violent and serious felonies are specifically listed in state laws. Violent offenses include murder, robbery of a residence in which a deadly or dangerous weapon is used, rape and other sex offenses; serious offenses include the same offenses defined as violent offenses, but also include other crimes such as burglary of a residence and assault with intent to commit a robbery or murder.
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The practice of imposing longer prison sentences on repeat offenders (versus first-time offenders who commit the same crime) is nothing new.[1] For example, New York State has a Persistent Felony Offender law that dates back to the late 19th Century. But such sentences were not compulsory in each case, and judges had much more discretion as to what term of incarceration should be imposed.
The first true "three strikes" law, with virtually no exceptions provided was passed in 1993, when Washington state voters approved Initiative 593. California passed its own in 1994, when that state's voters passed Proposition 184 by an overwhelming majority, with 72% in favor and 28% against. The initiative proposed to the voters had the title of Three Strikes and You're Out, referring to de facto life imprisonment after being convicted of three felonies.[2]
The concept swiftly spread to other states, but none of them chose to adopt a law as sweeping as California's: By 2004, twenty-six states and the federal government had laws that satisfy the general criteria for designation as "three strikes" statutes—namely, that a third felony conviction brings a sentence of life in prison, with no parole possible until a long period of time, most commonly twenty-five years, has been served.
The following states have enacted three strike laws:
They are formally known among lawyers and legal academics as habitual offender laws.[4] They are designed to counter criminal recidivism by physical incapacitation via imprisonment. A person accused under such laws is referred to in a few states (notably Connecticut and Kansas) as a "persistent offender," while Missouri uses the unique term "prior and persistent offender." These terms are used even though all of the offenses could occur in one incident.
The exact application of the three strikes laws varies considerably from state to state. Some states require all three felony convictions to be for violent crimes in order for the mandatory sentence to be pronounced, while California — mandates the enhanced sentence for any third felony conviction so long as the first two felonies were deemed to be either "violent" or "serious," or both.
Violent crime, but especially homicide, has fallen in the Los Angeles area, as well as other areas of the southland—Los Angeles's 2010 homicide count was 297, less than a third of the 1992 high of 1,000 slayings.[5] However, Violent crime has also fallen in other areas of California where the Three Strikes law is not enforced.
However, there is some evidence that criminals on their last strike are more desperate to escape from police and therefore more likely to attack police.[6][7] This does not reveal whether or not the criminals in question were or were not more desperate and willing to kill prior to their last strike.[8]
On November 7, 2000, 60.8% of the state's voters supported an amendment to the statute (offered in Proposition 36) that scaled it back by providing for drug treatment instead of life in prison for most of those convicted of possessing drugs after the amendment went into effect.
Some unusual scenarios have arisen, particularly in California — the state punishes shoplifting and similar crimes involving under $950 in property as felony petty theft if the person who committed the crime has three prior convictions for any form of theft, including robbery or burglary and have served time in jail or prison for that offense. As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, previous convictions for robbery and attempted robbery, sentence later reduced to six years).[9] In Rummel v. Estelle (1980), the Supreme Court upheld life with possible parole for a third-strike fraud felony in Texas, which arose from a refusal to repay $120.75 paid for air conditioning repair that was subsequently considered unsatisfactory.[10] Rummel was released a few months later, after pleading guilty.[11]
In California, first and second strikes are counted by individual charges, rather than individual cases, so a defendant may have been charged and convicted of "first and second strikes", potentially many more than two such strikes, arising from a single case, even one that was disposed of prior to the passage of the law. Convictions from all 50 states and the federal courts at any point in the defendant's past, as well as juvenile offenses if the defendant was age 16 or older that would otherwise be sealed can be counted (although once a juvenile record is sealed, it cannot be "unsealed"; it does not exist any longer and there is no longer any record to be used as a prior conviction), regardless of the date of offense or conviction or whether the conviction was the result of a plea bargain. It is up to the prosecutor's discretion how many charges to levy against a defendant for a single criminal event.[12]
Defendants already convicted of two or more "strike" charges arising from one single case potentially years in the past, even if the defendant was a juvenile over 16 at the time, can be and have been charged and convicted with a third strike for any felony or any offense that could be charged as a felony (including "felony petty theft" or possession of a controlled substance prior to Proposition 36 (see below)) and given 25 years to life. (In the California Supreme Court decision People vs. Garcia, 1999, the Court withdrew residential burglary from the juvenile strike list. For a juvenile residential burglary to count it must also be adjudicated in combination with another felony such as armed robbery, which is a strike. Out of the over 43,000 second and third strikers in California prisons today, none has received a prior strike for residential burglary as a juvenile.)
It is possible for a defendant to be charged and convicted with multiple "third strikes" (technically third and fourth strikes) in a single case. It is also possible for multiple "third" strikes to arise from a single criminal act (or omission). As a result, a defendant may then be given two separate sentences that run consecutively,[13] which can make for a sentence of 50 (or 75, or 100) years to life. 50 years to life was the actual sentence given to Leandro Andrade (more information below).
In turn, as a result of all these factors, three strikes sentences have prompted harsh criticism not only within the United States but from outside the country as well.[14] Within California, criticism has come from organizations such as Families to Amend California's Three Strikes (FACTS).[15] On a practical level, the Stanford Law School Three Strikes Project is working to reverse life sentences imposed for non-violent, minor felonies. Enforcement of the provision differs from county to county in California. For instance, current Los Angeles County District Attorney Steve Cooley does not pursue third strike convictions against offenders whose felony is non-violent or non-serious in nature.
On March 5, 2003, the U.S. Supreme Court held by a 5–4 majority that such sentences do not violate the Eighth Amendment of the U.S. Constitution, which prohibits "cruel and unusual punishment."[23] In two separate opinions handed down on the same day, the court upheld California's three strikes law against an attack on direct appeal from conviction, Ewing v. California, 538 U.S. 11, and a collateral attack through a petition for habeas corpus, Lockyer v. Andrade, 538 U.S. 63 (2003).
Writing for the plurality in Ewing, Justice Sandra Day O'Connor analyzed the serious problem of recidivism among criminals in California, applied rational basis review, and concluded:
We do not sit as a "superlegislature" to second-guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way … To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.
In his dissenting statement in "Lockyer v. Andrade" Justice David H. Souter said, "If Andrade's sentence ... is not grossly disproportionate, the principle has no meaning."[12]
New Zealand was scheduled to introduce a form of the Three Strikes Law in early 2010 as part of the Sentencing and Parole Reform Bill.[24]