Three-strikes law

In the United States, habitual offender laws^[1] (commonly referred to as three-strikes laws) are statutes enacted by state governments which mandate courts to impose harsher sentences on those convicted of an offense if they have been previously convicted of two prior serious criminal offenses. They are designed to incapacitate those more likely to commit crime.

Twenty-four states have some form of "three-strikes" law. 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". In most jurisdictions, only crimes at the felony level qualify as serious offenses; however, misdemeanor offenses previously could qualify for application of the three-strikes law in California, whose application has been the subject of controversy. This changed after Proposition 36 passed in 2012, that meant it had to be a serious or violent felony.

The popular name of these laws, three-strikes laws, 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. Some analysts claim that the three-strikes law has also exacerbated the mass incarceration in the 1990s.^[2]

Under Bill Clinton, the federal incarceration rate doubled, growing "more than it did under the previous 12 years of Republican rule combined", according to the Justice Policy Institute. In 1999, the federal incarceration rate was 42 per 100,000 - more than double the rate at the end of Ronald Reagan's term (17 per 100,000), and 61 % higher than at the end of George Bush's term (25 per 100,000).^[3]

History

The practice of imposing longer prison sentences on repeat offenders (versus first-time offenders who commit the same crime) is nothing new, as judges often take into consideration prior offenses when sentencing. However, there is a more recent history of mandatory prison sentences for repeat offenders.^[4] For example, New York State had a long-standing Persistent Felony Offender law dating back to the early 20th century^[5] (partially ruled unconstitutional in 2010,^[6][7] but reaffirmed en banc shortly after^[8][9]). 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 was passed in 1993, when Washington state voters approved Initiative 593.

California passed its own in 1994, when their voters passed Proposition 184^[10] 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 violent or serious felonies which are listed under California Penal Code section 1192.7.^[11] Its successful passing has been primarily attributed to the kidnapping, rape and murder of 12 year-old Polly Klaas by a repeat violent offender.

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 20 to life where 20 years must be served before becoming parole eligible. After the hype leading to the institution of these laws across the country, it soon became apparent that they were not bringing the results the public expected. Data shows that the laws didn’t necessarily reduce violent crime, but instead, in states such as California where a "strike" did not have to be a violent felony, put away more “criminals” for non-violent and petty crimes, dramatically raising the prison population.^[12] This led to the drastic reduction of the power of the Three-Strikes Law in California in 2012 by approval of Proposition 36.

Enactment by states

The following states have enacted three-strikes laws:

• New York has employed a habitual felon statute since 1797.^[13]
• Texas has had a three-strikes with mandatory life sentence since at least 1952.^[14]
  • In Rummel v. Estelle (1980), the Supreme Court upheld Texas' statute, which arose from a case involving a refusal to repay $120.75 paid for air conditioning repair that was, depending on the source cited, either considered unsatisfactory^[15] or not performed at all,^[16] where the defendant had been convicted of two prior felony convictions, and where the total amount involved from all three felonies was around $230.^[17][18])
• In 1993: Washington
• In 1994: California,^[19] Colorado, Connecticut, Indiana, Kansas, Maryland, New Mexico, North Carolina, Virginia, Louisiana, Wisconsin, Tennessee, and Georgia^[20]
• In 1995: Arkansas, Florida, Montana, Nevada, New Jersey, North Dakota, Pennsylvania, South Carolina, Utah, and Vermont ^[21]
• In 2006: Arizona
• In 2012: Massachusetts^[22]

Application

The exact application of the three-strikes laws varies considerably from state to state, but the laws call for life sentences without possibility of release for at least 25 years on their third strike.

Most states require one or more of the three felony convictions to be for violent crimes in order for the mandatory sentence to be pronounced. Crimes that fall under the category of “violent” include: murder, kidnapping, sexual abuse, rape, aggravated robbery, and aggravated assault. Some states include additional, lesser offenses that one would not normally see as violent.^[23] California mandated a minimum sentence of 25-to-life so long as the first two felonies were deemed to be either "serious" or "violent". For example, California did not require the third “strike” to be serious or violent to qualify for a life sentence, and 2-strike felons could easily be given this enhanced sentence for minor third strike lawbreaking.^[24] As another example, Texas does not require any of the three felony convictions to be violent, but specifically excludes certain "state jail felonies" from being counted for enhancement purposes.^[25]

In 1995, Sioux City Iowa native Tommy Lee Farmer, a professional criminal who had served 43 years in prison for murder and armed robbery was the first person in the United States to be convicted under the Three-Strikes Law when he was sentenced to life in prison for his botched attempt to hold up an eastern Iowa convenience store. The sentencing was considered so significant that President Bill Clinton interrupted a vacation to make a press statement about it.^[26]

Effectiveness

Violent crime, but especially homicide, has fallen in the Los Angeles area, as well as other areas of Southern California: Los Angeles's 2010 homicide count was 297, less than a third of the 1992 high of 1,000 homicides. This statistic reflects overall national trends of decreasing violent crime and may be unrelated to the three-strikes law.^[27] A 1999 study, in which, pre-three strikes crime rate (1991-1993) were compared to post-three strikes crime rate (1995-1997).^[28] The dropping crime rate in California was compared directly to how severely counties enforced the three strikes law. The dropping crime rate was the same in counties with both light and harsh enforcement, sometimes being even greater in counties with lighter enforcement of the three strikes law.

Does Three Strikes Deter? A Non-Parametric Estimation, was a study published by researchers at George Mason University in Virginia and said that arrest rates were 17 to 20 per cent lower for the group of offenders convicted of two-strike eligible offences, compared to those convicted of one-strike eligible offences. The authors concluded this indicated that the three-strikes policy was deterring recidivists from committing crimes.^[29]

A study written by Robert Parker, director of the Presley Center for Crime and Justice Studies at UC Riverside, states that, violent crime began falling almost two years before the law was enacted in 1994 {California}. The study argues that the decrease in crime is linked to lower alcohol consumption and unemployment.^[30]

A 2007 study from the Vera Institute of Justice in New York examined the effectiveness of incapacitation - depriving criminals of the opportunity to offend - under all forms of sentencing, mandatory or otherwise. The study estimated that if US incarceration rates were increased by 10 per cent the crime rate would decrease by 2 to 4 per cent, but also cautioned that "analysts are nearly unanimous in their conclusion that continued growth in incarceration will prevent considerably fewer, if any, crimes than past increases did and will cost taxpayers substantially more to achieve".^[31]

A study released by the National Bureau of Economic Research found that three-strikes laws like California's, while discouraging criminals from doing things like smoking pot or shoplifting, may push those who do commit crime, to commit more violent offenses. The study's author, Radha Iyengar, argues that this is because under such laws, felons knowing they could face a long jail sentence for their next crime, have little to lose by committing serious crimes rather than minor offenses.^[32]

Successful California amendments

Proposition 36 (2000)

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.

AB 109

A new sentencing guideline, established by AB 109, was approved in October 2011. This bill does not eliminate TSL; however, it gives convicted criminals opportunities to participate in alternative rehabilitative services in lieu of prison time. This is an opportunity to prove to the courts that they want something better in life than to continue down the criminal path. Felony crimes that are punishable by imprisonment, such as possession of methamphetamine for sale, possession of marijuana for sale, unlawful driving or taking of a vehicle, forgery, receiving stolen property, cruelty to animals, driving under the influence of alcohol or other drugs and burglary will serve 16 months to 3 years in county jail, if the crime is considered nonviolent, non-serious and non-registerable sex offenses. This prison overhaul changes sentencing structures but leaves judges with little limited discretion when it comes to sentencing, Judges may commit the offender to County Jail, or they can impose what's called a split sentence, with a portion served in jail and the rest on mandatory supervision. Once a person is handed a jail sentence, it is the jail staff that determines if an individual can serve time in one of the alternative ways offered.

Alternatives include various levels of electronic monitoring via ankle bracelet, certain types of drug and alcohol treatment programs and work release: giving a convicted felon a chance to have their case monitored on a one to one basis.

Proposition 36 (2012) California

Proposition 36, a Change in the "Three Strikes Law" Initiative, was on the November 6, 2012 ballot as an initiated state statute, where it was approved.^[33]

Proposition 36:

• Revises the three strikes law to impose life sentence only when the new felony conviction is "serious or violent".
• Authorizes re-sentencing for offenders currently serving life sentences if their third strike conviction was not serious or violent and if the judge determines that the re-sentence does not pose unreasonable risk to public safety.
• Continues to impose a life sentence penalty if the third strike conviction was for "certain non-serious, non-violent sex or drug offenses or involved firearm possession".
• Maintains the life sentence penalty for felons with "non-serious, non-violent third strike if prior convictions were for rape, murder, or child molestation."

One impact of the approval of Proposition 36 was that the approximately 3,000 convicted felons who were as of November 2012 serving life terms under the Three Strikes law, whose third strike conviction was for a nonviolent crime, became eligible to petition the court for a new, reduced, sentence.^[34] Taxpayers could save over $100 million per year by reducing the sentences of these current prisoners and use the money to fund schools, fight crime and reduce the state’s deficit.^[35]

Consequences and criticisms

There are legal implications of the three-strikes law that raise problematic and ethical questions. In Leandro Andrade's case, he was given two 25 to life sentences for various shoplifting charges that were deemed felonies given California's three-strikes provision that would otherwise, if a first offense, result in just 6 months of jail. He appealed his case on grounds of cruel and unusual punishment via the 8th Amendment. His case was determined not cruel and unusual because no precedent existed that a three-strikes sentence was cruel and unusual.^[36] In California Supreme Court case People v. Williams, the Court stated that a sentencing judge may not impose a life sentence if the defendant's "character, background, and prospects" place him "outside the spirit" of the three-strikes law. They ruled that a trial court is required to conduct this analysis of the spirit of the law, but without clear clarification on how to do so. Michael Romano provides ways to determine the "spirit" of the law in relation to an individual case. Sentencing should reflect the legislative intent of the law, which is to target violent career criminals. If an individual does not fall into this category, he should not be given a life sentence.

Three-strikes sentences have prompted criticism not only within the United States but from outside the country as well.^[37] Within California, criticism has come from organizations such as Families to Amend California's Three Strikes (FACTS). 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, former Los Angeles County District Attorney Steve Cooley did not pursue third strike convictions against offenders whose felony was non-violent or non-serious in nature.

The application and enforcement of three-strikes laws are varied demographically. In California, the social costs are borne disproportionately by African American men, who constitute only about 3% of the state's population, but represent approximately 33% of second-strikers and 44% of third-strikers among California prison inmates.^[38]

A 2004 study found that cities in states with three-strikes laws did not experience significant reductions in crime rates.^[39] A 2015 study found that three-strikes laws were associated with a 33% increase in the risk of fatal assaults on law enforcement officers.^[40]

U.S. Supreme Court response to California's law

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."^[41] 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). An article in The Journal of Criminal Law and Criminology criticized the decision, arguing that three-strikes sentencing is excessive and disproportional to the crime committed.^[42]

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 opinion in the companion Lockyer case, Justice David H. Souter shot back at the majority: "If Andrade's sentence ... is not grossly disproportionate, the principle has no meaning."^[43]

See also

• 10-20-Life
• Armed Career Criminal Act
• Baumes law, 1926 four strike law
• Deterrence
• Habitual Offender Laws, a comparison of similar laws in several countries
• HADOPI law
• Incapacitation (penology)
• Indefinite prison sentence
• Mandatory sentencing
• Mass incarceration
• One strike you're out
• Prison-industrial complex
• Recidivism
• Stanford Law School Criminal Defense Clinic
• United States Federal Sentencing Guidelines

References