Three strikes laws)"are statutes enacted by
stateA U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
governments in the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
which require the state courts to hand down a
mandatoryA mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison...
and extended period of
incarcerationA prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
to persons who have been convicted of a serious criminal
offenseIn law, an offence is a violation of the criminal law .In England and Wales, as well as in Hong Kong the term "offence" means the same thing as, and is interchangeable with, the term "crime"....
on three or more separate occasions. These statutes became very popular in the 1990s. Twenty-four states have some form of habitual offender laws.
The name comes from
BaseballBaseball is a bat-and-ball sport played between two teams of nine players each. The aim is to score runs by hitting a thrown ball with a bat and touching a series of four bases arranged at the corners of a ninety-foot diamond...
, where a batter is permitted two strikes before
striking outIn baseball or softball, a strikeout or strike-out occurs when a batter receives three strikes during his time at bat. A strikeout is a statistic recorded for both pitchers and batters....
on the third.
The Three Strikes law significantly increases the prison sentences of persons convicted of
feloniesA felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
who have been previously convicted of a violent crime 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 murder.
History
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 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.
CaliforniaCalifornia is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
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 factoDe facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
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
paroleParole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
possible until a long period of time, most commonly twenty-five years, has been served.
Enactment by states
The following states have enacted three strike laws:
- In 1974: Texas
- In 1993: Washington
- In 1994: California, Colorado, Connecticut, Indiana, Kansas, Nevada, North Dakota, Louisiana
- In 1995: Arkansas, Georgia, Maryland, Montana, New Jersey, New Mexico, North Carolina, Pennsylvania, South Carolina, Utah, Vermont, Wisconsin
- In 1996: Florida, Tennessee, Virginia
- In 2006: Arizona
They are formally known among lawyers and legal academics as
habitual offenderA habitual offender is a person who has repeatedly committed the same crime. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced or exemplary punishments or other sanctions...
laws. They are designed to counter criminal
recidivismRecidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...
by
physical incapacitation via imprisonmentIncapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing future offending....
. A person accused under such laws is referred to in a few states (notably
ConnecticutConnecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...
and
KansasKansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
) as a "persistent offender," while
MissouriMissouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
uses the unique term "prior and persistent offender." These terms are used even though all of the offenses could occur in one incident.
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
CaliforniaCalifornia is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
— 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 in California
Violent crime, but especially homicide, has fallen precipitously 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.
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. 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.
Successful amendment
On November 7, 2000, 60.8% of the state's voters supported an amendment to the statute (offered in
Proposition 36California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was an initiative statute that permanently changed state law to allow qualifying defendants convicted of non-violent drug possession offenses to receive a probationary sentence in lieu of incarceration...
) 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.
Controversial results
Some unusual scenarios have arisen, particularly in California — the state punishes shoplifting and similar crimes involving under $950 in property as
felony petty theftFelony petty theft is the colloquial term for a statute in the California Penal Code that makes it possible for a person who commits the crime of petty theft to be charged with a felony rather than a misdemeanor if the accused had previously been convicted of a theft-related crime at any time in...
if the person who committed the crime has three prior convictions for any form of
theftIn common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
, including
robberyRobbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
or
burglaryBurglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of 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
shopliftingShoplifting is theft of goods from a retail establishment. It is one of the most common property crimes dealt with by police and courts....
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). In
Rummel v. EstelleRummel v. Estelle 445 U.S. 263 is a United States Supreme Court case in which the Court upheld a life sentence with the possibility of parole for William James Rummel for a felony fraud crime amounting to $120.75...
(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. Rummel was released a few months later, after pleading guilty.
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
convictionIn law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
), regardless of the date of offense or conviction or whether the conviction was the result of a
plea bargainA plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
. It is up to the prosecutor's discretion how many charges to levy against a defendant for a single criminal event.
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, 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 StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
but from outside the country as well. Within California, criticism has come from organizations such as Families to Amend California's Three Strikes (FACTS). On a practical level, the
Stanford Law School Three Strikes ProjectThe Stanford Law School Three Strikes Project is one of the eleven Mills Legal Clinics at Stanford Law School. Founded in 2006, it provides legal representation to convicts serving life sentences under California's three strikes law for committing minor, non-violent felonies. Under the supervision...
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 AttorneyIn many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
Steve CooleyStephen Lawrence "Steve" Cooley is an American politician. As a Republican, he has been a prosecutor for 27 years and has been the Los Angeles County District Attorney since his election in 2000, in which he defeated incumbent two-term District Attorney Gil Garcetti, a Democrat...
does not pursue third strike convictions against offenders whose felony is non-violent or non-serious in nature.
Cases
- On November 4, 1995, Leandro Andrade stole five videotapes from a K-Mart store in Ontario, California. Two weeks later, he stole four videotapes from a different K-Mart store in Montclair, California. Andrade had been in and out of state and federal prisons since 1982, and at the time of these two crimes in 1995, had been convicted of petty theft, residential burglary, transportation of marijuana, and escaping from prison. As a result of these prior convictions, the prosecution charged Andrade with two counts of petty theft with a prior conviction, which under California law can either be a felony or a misdemeanor. Under California's three strikes law, any felony can serve as the third "strike" and thereby expose the defendant to a mandatory sentence of 25 years to life in prison.
- Kevin Weber was sentenced to 25 years to life for the crime of burglary (previous strikes of burglary and assault with a deadly weapon). Prosecutors said the six-time parole violator broke into the restaurant to rob the safe after a busy Mother's Day holiday, but triggered the alarm system before he could do it. When Weber was arrested, his pockets were full of cookies he had taken from the restaurant.
- Gregory Taylor was serving a 25 years to life sentence for trying to break into a soup kitchen
A soup kitchen, a bread line, or a meal center is a place where food is offered to the hungry for free or at a reasonably low price. Frequently located in lower-income neighborhoods, they are often staffed by volunteer organizations, such as church groups or community groups...
in 1997 when he was ordered to be released by Judge Peter Espinoza of California Superior Court in 2010.
- Santos Reyes
Santos Reyes is a prisoner at Folsom Prison in the state of California who became a focal point of an effort to overturn the state's three strikes law. The case has attracted widespread media attention, including coverage in the Los Angeles Times, the San Francisco Chronicle, Reuters, the Pasadena...
in CaliforniaCalifornia is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
committed a burglary as a juvenile with no jury trialA jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
(strike one); the second strike was a robbery which didn't involve injury to anybody; after ten years had passed without incident, Reyes was convicted of perjury for submitting a false application whilst under oath and, as a result of the three strikes law, he was sentenced to 26 years to life.
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 AmendmentThe Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
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. CaliforniaEwing v. California, , is one of two cases upholding a sentence imposed under California's three strikes law against a challenge that it constituted cruel and unusual punishment in violation of the Eighth Amendment. As in its prior decision in Harmelin v. Michigan, , the Court could not agree on...
,
538 U.S. 11, and a collateral attack through a petition for
habeas corpus is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
,
Lockyer v. AndradeLockyer v. Andrade, , decided the same day as Ewing v. California, held that there would be no relief by means of a petition for a writ of habeas corpus from a sentence imposed under California's three strikes law as a violation of the Eighth Amendment's prohibition of cruel and unusual...
,
538 U.S. 63 (2003).
Writing for the
pluralityA plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
in
Ewing, Justice
Sandra Day O'ConnorSandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
analyzed the serious problem of recidivism among criminals in California, applied
rational basis reviewRational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
, 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."
In New Zealand
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.
See also
- 10-20-Life
The 10-20-Life law is a mandatory minimum sentencing law in the U.S. state of Florida. It primarily regards the use of a firearm in committing a violent felony. The law's name comes from a set of three basic minimum sentences it provides for...
- Armed Career Criminal Act
The Armed Career Criminal Act of 1984 is a United States federal law that provides sentence enhancements for felons who commit crimes with firearms, if convicted of certain crimes three or more times....
- Deterrence
Deterrence may refer to:* Deterrence theory, a theory of war, especially regarding nuclear weapons* Deterrence , a theory of justice* Deterrence , a psychological theory...
- Habitual Offender Laws, a comparison of similar laws in several countries
- HADOPI law
The French HADOPI law or Creation and Internet law was introduced during 2009 as a means to control and regulate internet access and encourage compliance with copyright laws...
- Incapacitation (penology)
Incapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing future offending....
- Indefinite prison sentence
- Mandatory sentencing
A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison...
- One strike you're out
One strike, you're out is a colloquial term for a policy adhered to by public housing officials in the United States which requires tenants living in housing projects or otherwise receiving housing assistance from the federal government to be evicted if they, or any guest or visitor under their...
- Recidivism
Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...
- Stanford Law School Criminal Defense Clinic
- United States Federal Sentencing Guidelines