Three-strikes law

"Three strikes" redirects here. For other uses, see Three strikes (disambiguation).

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 law professors as habitual offender laws. The name comes from baseball, where a batter has two strikes before striking out on the third.

The stated rationale for these laws is that the automatic and lengthy imprisonment of individuals who commit three or more felonies is justified on the basis that recidivists are incorrigible and chronically criminal, and must be imprisoned as a matter of public safety.

History

The practice of imposing longer prison sentences on repeat offenders than on 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 not enacted until 1993, when Washington voters approved Initiative 593. California followed one year later, when that state's voters approved Proposition 184 by an overwhelming majority of 72% in favor to 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 three felonies had been committed.

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.

Application

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.

File:CaliforniaCrimeIndex.png

Rates of murder, rape, robbery, and aggravated assault peaked shortly before passage of the three strikes law.

Benefits of "3 Strikes" in California

According to the CA Dept. of Justice and the CA Dept. of Corrections, for the ten years prior to the enactment of the “3 strikes law”: Homicide, Rape, Robbery, Assault, Burglary, and Vehicle theft totaled 8,825,353 crimes, but for the ten years after the enactment of the law, these crimes dropped to 6,780,964. According to threestrikes.org, “These reductions also represent fewer criminals. Less crime equals fewer arrests, prosecutions and incarcerations. Lower crime rates can also be translated into dollars saved. The US Department of Justice has set a dollar value equal to the average cost per crime.” Based on the cost per crime multiplied by the number of crimes, threestrikes.org estimates that the state of California saved $28,493,010,750, or just under $28.5 billion in the ten years after the enactment of the “3 strikes law.” It should be noted that correlation does not necessarily equate to causation. The decline in crime was a general trend throughout the US, even in those parts of the country without three strikes laws. It should also be noted that, being that there are only 2 million people even in the prison system, it's highly unlikely that the hundred thousand or so locked away for life under California's law would have even been capable of committing those two million crimes three strikes is being praised for reducing.

Another common criticism is that the law puts strain on an already overcrowded prison system. However, for the ten years prior to the enactment of the “3 strikes law,” the California prison population expanded by 400% and for the ten years after there was an overall increase of only 25.5%, a massive decrease in prison population expansion .

Some have said that there would need to be many new prisons built to house all of these violent criminals. However, for the ten years prior to the law, 19 new prisons were built in California, while in the ten years after no new prisons were built.

Finally, 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. However, this does not reveal whether or not the criminals in question were or were not more desperate and willing to kill.

Controversial results

Some unusual scenarios have arisen, particularly in California — the state punishes shoplifting and similar crimes 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, previous strikes for home burglary), 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 (although once a juvenile record is sealed, it cannot be "unsealed" it does not exist any longer, 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, can be counted. The law also mandates that so called "wobbler" offenses that may be charged as a misdemeanor or a felony be charged as a felony if the charge would be a third strike. Thus, 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. (e.g.: A defendant who accepted a plea bargain to 2 counts of residential burglary in one juvenile case 20 years before the passage of the law would have both counts regarded as first and second strikes, and would face a third strike if charged with any offense potentially chargeable as a felony, such as possession of a controlled substance or "felony petty theft"). It is possible for a defendant to be charged and convicted with two "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. 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.

In turn, such sentences have prompted harsh criticism not only within the United States but from outside the country as well.

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).

Writing for the majority in Ewing, Justice Sandra Day O'Connor analyzed the serious problem of recidivism among criminals in California 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.

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 if went the amendment went into effect.

Failed California amendment

On November 2, 2004, the state's voters rejected an amendment to the statute (offered in Proposition 66). 5.5 million voters (47.3%) voted yes, but 6.2 million (52.7%) voted no.

The amendment would have required the third felony to be either "violent" and/or "serious" in order to result in a 25-years-to-life sentence.

Criticism

Some critics have argued that three-strikes laws violate the double jeopardy clause of the U.S. Constitution, although the Supreme Court of the United States has already upheld the constitutionality, in general, of using the fact of prior convictions as an aggravating factor in determining the severity of a sentence. Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Another criticism is that many felonies involve only a minimal threat to society. In some states, possession of a small amount of crack cocaine or even marijuana may be treated as a felony, so three such convictions would carry permanent imprisonment. There are many other felonies which call into question the advisability of strict three-strikes laws, such as some minor white-collar crimes which only marginally qualify as felonies.

A burglary, a crime which could result in the theft of something having little or no value, is perceived as being unjustly included as one of the three "strikes." However, burglary often involves breaking into others' houses, and burglars often resort to violence when they encounter the family members unexpectedly. For instance, on July 22, 2007, two convicted burglars out on parole (Joshua Komisarjevsky and Steven Hayes) were accused of killing three family members during a home invasion, sexual assault, and arson in Cheshire, Connecticut. As a result of the massacre of the Petit family, Governor M. Jodi Rell has asked the Connecticut legislature to redefine burglary as a violent crime.

Some have also argued that these laws can provide criminals with a perverse incentive to commit murder. This is based on the added penalties that arise under these laws, penalties that equal or exceed common sentences for many homicides, and which would presumably render moot the legal disincentive from committing a homicide if facing those penalties. If a person already has two felony convictions, then a conviction for any third felony (such as grand theft) may carry a penalty comparable to or greater than that for a murder conviction. Thus these laws could encourage homicides committed either incident or related to the commission of a third-strike felony or committed in an effort to avoid apprehension and prosecution, such as killing a witness to a crime or killing police officers while attempting to escape, potentially lessening the risk of being apprehended and sentenced under these laws (though the death penalty might apply to such cases as an added disincentive). The refutation to this claim is that most brutal crimes are committed in impulse (when the emotion overpowers the rationality), and very few criminals have the chance to think through all the consequences when they commit crimes. Therefore the so called “perverse incentive” has never been proved to exist.

Less dramatic, though by no means insignificant perverse incentives may arise from these laws. As guilty pleas may and have resulted in multiple strikes being added, these laws may decrease the incentive to plea bargain, increasing the cost and time spent by courts. Defendants facing third strikes lose incentives to plead to lesser offenses that may result in strike, and also lose incentives to cooperate with investigations, forcing prosecutors to take to court potentially weak cases. Life sentences rule out the possibility of rehabilitation, and likewise often remove incentives on prisoners to participate meaningfully in prison programs or to control their behavior, producing a larger population of violent and disruptive prisoners. The refutation to this claim is that the victims' lives are too precious to be compared to the cost and time spent by courts.

Holding many more inmates for longer sentences increases the overall strain on prison systems, many of which (particularly in California) are already perilously overcrowded. Three-strikes laws place a particular strain on high- and maximum-security facilities. Prisoners serving long sentences are commonly held in maximum-security, regardless of the nature of their specific offenses or other factors affecting their profile as inmates, on the principle that inmates with longer sentences have more reason to escape or become disruptive than inmates with shorter sentences. Thus, third-strike life prisoners held on non-violent offenses occupy space that might otherwise be used to confine more dangerous and violent inmates, and they are also exposed to those inmates in maximum-security, placing them at higher risk of assault, rape, murder and prison gang activity.

Any criticism, right or wrong, must first passes the logical fallacy test. Some of the criticisms of three-strikes laws may have committed the perfect solution fallacy, and that the critics themselves have not presented a perfect solution. It is possible that with the improvements on its questionable parts, three-strikes laws as a whole may be able to serve as an acceptable solution to the violent crimes of our society. It is also possible that the use of disproportionately harsh and unjust sentencing represents a distraction from efforts to understand and confront the underlying causes of violent crime, thereby satisfying the instincts for revenge, but ultimately serving to make the problem worse.

Notes

http://www.eurekalert.org/pub_releases/2007-02/uoc--nrr021207.php

External links

• Families United for Prison Reform - Initiative to Repeal California's Three Strikes Law in 2008

• Families to Amend California's 3-Strikes