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Three strikes laws are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became very popular in the 1990s. They are formally known among lawyers and legal academics as habitual offender laws. 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.” 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 felonies who have been previously convicted of a violent or serious felony, and limits the ability of these offenders to receive a punishment other than a prison 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 rape.
The practice of imposing longer prison sentences on repeat offenders versus first-time offenders, who commit the same crime is nothing new. 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 every single 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 voters passed Proposition 184 by an overwhelming majority. 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.
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 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 others — most notably California — mandate 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.
Effects of “3 Strikes” in California
Generally, three strikes laws have been empirically substantiated as having negligible impacts on overall recidivism rates amongst the general population, a trend substantiated by the weak correlation found between demonstrative prison sentences and general or individuals deterrence. Furthermore, the cost of imprisoning large numbers of individuals for extended periods of time have often crippled state’s economies, and led to America possessing the highest rate of imprisonment in the Western world.
There is an idea that criminals on their last strike will be more desperate to escape from police and therefore will be more likely to attack police. This does not reveal whether or not the criminals in question were or were not more desperate and willing to kill.
Some unusual scenarios have arisen, particularly in California — the state punishes shoplifting and similar crimes involving over $500 in property as felony petty theft if the person who committed the crime has a prior conviction for any form of theft, including robbery or burglary. 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), nine videotapes (Leandro Andrade, received double sentence of 25 year-to-life for 2 counts of shoplifting) , or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, four previous non-violent felonies, sentence later reduced to six years).
In one particularly notorious case, Kevin Weber was sentenced to 26 years to life for the crime of stealing four chocolate chip cookies (previous strikes of burglary and assault with a deadly weapon). However, prosecutors said the six-time parole violator broke into the restaurant to rob the safe after a busy Mother’s Day holiday, but he triggered the alarm system before he could do it. When arrested, his pockets were full of cookies he had taken from the restaurant.
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 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.
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 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, 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.
As of 2007, California’s state prison system holds over 170,000 prisoners in custody in a system designed for 83,000, and most California prisons currently hold populations more than double their design capacity. Using design capacity to measure prison capacity is a term unique to the California Department of Corrections & Rehabilitation. According to the California Legislative Analyst, the actual prison bed shortfall is 16,600, beds based on nationally recognized American Correctional Association standards. The state has progressively been forced to manage this overcrowded system year by year through various workarounds, including referring nonviolent drug offenses to special “drug courts” that mandate treatment rather than incarceration (see Proposition 36 below), early releases of prisoners, raising funds to build more prisons, and transfers of prisoners to the federal system or out-of-state privately run institutions with whom the state has contracted.
The system’s healthcare system and several of its institutions have been found inadequate or inhumane by federal courts in successive cases, which have resulted in their being placed under special oversight. The three strikes law has further contributed to the strain on the system by causing aging of the prison population.
U.S. Supreme Court response
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.” 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).
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.
Successful California amendment
On November 7, 2000, 60.8% of the state’s voters supported an amendment to the statute (offered in Proposition 36) which 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.
- ^ Ahmed A. White, “The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control,” 37 U. Tol. L. Rev. 705 (2006).
- ^ Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (New York: Oxford University Press, 2001), 4.
- ^ The substantive provisions of Proposition 184 are codified in California Penal Code Sections 667(e)(2)(A) (ii) and 1170.12(c)(2) (A)(ii).
- ^ Mathiesen, 2004 ; Gottschalk, 2006
- ^ Jeffry L. Johnson. “Officer Down: Implications of Three Strikes for Public Safety”. http://cjp.sagepub. com/cgi/content/ abstract/ 16/4/443. Retrieved on 2007-12-03.
- ^ Carlisle E. Moody ; Thomas B. Marvell ; Robert J. Kaminski. “Unintended Consequences: Three-Strikes Laws and the Murders of Police Officers”. http://www.ncjrs. gov/App/Publicat ions/abstract. aspx?ID=203649.
- ^ “3-Strikes 1994 to 2004: A Decade of Difference”. 2004. http://www.threestr ikes.org/ TenYearReport04. pdf.
- ^ Ken Ellingwood, “Three-Time Loser Gets Life in Cookie Theft,” Los Angeles Times, 28 October 1995, 1.
- ^ “CNN News Briefs”. 1995-10-27. http://www.cnn. com/US/Newsbrief s/9510/10- 27/index. html.
- ^ See California Penal Code Section 669.
- ^ Aging behind barsRyan S. King and Mark Mauer. “Aging Behind Bars” (PDF). http://public. soros.org/ initiatives/ justice/articles _publications/ publications/ agingbehindbars_ 20010801/ agingbehindbars. pdf.
- ^ Duane Campbell, “Three strikes and you’re out — Human rights, US style: As Americans shrug off criticism of Camp X-Ray, thousands of their countrymen suffer cruel but all-too-usual punishment,” The Guardian, 26 January 2002, 3.
- ^ Linda Greenhouse, “Justices Uphold Long Sentences In Repeat Cases,” New York Times, 6 March 2003, A1.