Three-strikes-and-you’re-out laws, borrowing a phrase from the baseball context, are those laws that impose up to natural life imprisonment on offenders convicted of three offenses, so categorized as strike offenses. Strikes need not necessarily be for violent crimes, but three strikes, according to some state legislatures, renders the offender a habitual felon who should be removed from society. Although recently characterized by California’s aggressive use of a three-strikes law, California is not the state in which such laws originated in the modern era. In November 1993, voters in Washington State passed Initiative 593, which mandated life without parole for offenders convicted for the third time of one of 42 qualifying felonies.
Although originating in Washington and then spreading to more than 20 other states, it is California’s use of three-strikes law that has drawn the most criticism and notoriety. The engine for the three-strikes provision in California law was undoubtedly the 1993 murder of 12-yearold Polly Klaas. Klaas was abducted from her home, sexually assaulted, and murdered by Richard Allen Davis, a career criminal on parole at the time for a kidnapping charge. As Davis was a repeat offender, the logic behind three-strikes thinking was that if he had been sentenced to life imprisonment for the earlier felonies he had committed, he would not have been free or able to kidnap Klaas. With substantial public and political backing in the emotionally charged atmosphere that followed the case, California’s three-strikes law was created. After its enactment in the 1990s, the law was further amended in 2000 and again in 2006 to add additional crimes to the list of qualifying strike offenses.
According to the California statute, the three-strikes law is intended to “ensure prison sentences and greater punishment for those who commit a felony and have previously been convicted of one or more serious and/or violent felony offenses.” Anyone convicted of a third-strike offense in California is subject to a term of imprisonment from 25 years to life. The three-strikes law also eliminates the possibility of probation and of the offender’s ability to earn custody credits. Proponents of three-strikes laws claim that simple incapacitation, taking repeat offenders off the street, will drive down crime rates, assuming that a substantial amount of crimes are committed by a relatively small proportion of offenders. However, studies have shown no appreciable difference in crime rates between those states that enacted three-strikes laws in the 1990s and those that did not. The most appreciable effect has instead been upon prison populations.
Three-strikes laws have been a main factor in the overcrowding of many state prisons. In California, the prison system has struggled with offender numbers to the extent that the population reached 156,000 inmates. As many as 200 prisoners had lived in a gym and as many as 54 prisoners had shared a single toilet, prompting the U.S. Supreme Court to rule that the overcrowding constituted an Eighth Amendment violation for cruel and unusual punishment Brown v. Plata (2011). There has also been a disproportional effect on the imprisonment levels of minority groups caused by three-strikes law: as of 2010, the three-strikes population in California included 15,050 African American inmates, 14,124 Hispanics, and 10,048 white inmates.
Offenses committed by a juvenile can count as strikes. In California, a “juvenile sustained petition” (a conviction in juvenile court) counts as a strike if three conditions are met: (1) the conviction counts as a strike under the California Penal Code definitions of violent or serious felony, (2) the crime is listed in California Welfare and Institutions Code 707(b), and (3) the person was at least 16 years of age when the offense occurred.
Prosecutors, judges, and defense attorneys can move to dismiss previous strikes. Prosecutors, up until the trial, can “strike” strike allegations if it is not in the interests of justice to treat the offender as a striker based on the nature of past or current offenses, or if the prosecutor believes strike allegations will be too difficult to prove. Defense attorneys can file a motion with the court asking the judge to dismiss strike allegations in the furtherance of justice, asking the court to consider the nature of the charge, the time since the strike(s) occurred, and the defendant’s history. The judge can dismiss a strike anytime up until sentencing. Strikes need not be accrued separately but can accumulate in a single court proceeding.
When charged with a final strike, however, and when the imposition of a life sentence is the mandatory punishment for a third-strike offense, the court in sentencing is unable to consider the weight of mitigating factors—such as age, substance abuse, homelessness, or mental illness— in an individual’s case; all offenders are often unfairly reduced to the same “type.” In Washington, for example, 62 percent of sentenced strikers report being homeless at some point, 78 percent of them at the time they committed one of their strikes. In California nearly 40 percent of three-strikers qualify as being mentally ill and requiring psychiatric treatment. Such factors cannot be taken into account by the court when life imprisonment has to be imposed for a third strike, even when, as in California, a third strike, until recently, could be for a minor offense, such as stealing food. When an offender is imprisoned for life and no violent act has been committed, the propriety of the three-strikes law is called into question, as it could possibly be unconstitutional under the Eighth Amendment.
In November 2012, California voters approved Proposition 36, which modified the state’s three-strikes law. Proposition 36 revised the law so that a life sentence is imposed only when the new felony conviction is serious or violent. Additionally, it allows for the resentencing of offenders who have been sentenced to life imprisonment when their third-strike conviction was for a nonviolent offense and the judge determines that resentencing will not pose a risk to public safety. Approximately 3,000 convicted offenders are eligible to petition the court for new, reduced sentences. Proposition 36 allows for the continued imposition of a life sentence for a third strike for certain nonviolent offenses that are deemed particularly serious, including: the possession for sale, sale, transportation, or manufacturing of cocaine, heroin, methamphetamine, or related substances; the use of a firearm in the commission of the offense; or if a previous strike offense was particularly serious, for example, a sexually violent offense, or murder, manslaughter, or lewd acts with a child under 14 years of age.
Although the three-strikes law has been modified, eliminating the possibility of a third strike given for minor theft, the very philosophy underpinning three-strikes laws remains controversial. Three-strikes laws disavow rehabilitation, marking the striker as beyond redemption. Such laws emphasize the incapacitation of the offender, not rehabilitative treatment, while the very length of the sentence adds a particularly retributive element to the punishment. Under three-strikes laws offenders have been sentenced to life imprisonment even when they have not been violent; treatment and welfare programs are arguably more helpful than penal sanctions, particularly life imprisonment.
Age is also a salient factor regarding the propriety of three-strike laws. To include strikes committed by an offender as young as 16, an age when an offenders’ reasoning skills have not yet matured (Miller v. Alabama, 2012; Roper v. Simmons, 2005) is both ethically and constitutionally dubious. Moreover, when the youngest offenders are convicted of a third strike, imposing whole of life imprisonment upon them will have a particularly serious effect. Age is relevant in another way: The result of imposing so many life sentences is that prisons ultimately become responsible for caring for prisoners in their old age, even when they arguably no longer pose a danger to society. With no review of the need to detain prisoners into their old age, in the years of their declining health prisoners are warehoused long after their threat to the general public has gone. Moreover, prisons are not ideal situations in which to provide geriatric health care, and can only attempt to do so at a great cost to the prison system.
- Chen, Elsa Y. “Impacts of ‘Three Strikes and You’re Out’ on Crime Trends in California and Throughout the United States.” Journal of Contemporary Criminal Justice, v.24/4 (2008).
- Taibbi, Matt. “Cruel and Unusual Punishment: The Shame of Three Strikes Laws.” Rolling Stone (March 27, 2013). http://www.rollingstone.com/ politics/news/cruel-and-unusual-punishment-the-shame-of-three-strikes-laws-20130327 (Accessed November 2013).
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