Three strikes law
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"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.[1] 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.[citation needed]
However, such laws have been criticized as ineffective in preventing crime and as ultimately serving to perpetuate cycles of violence and crime.[citation needed] For example, restricting or removing judicial discretion in sentencing tends to limit the ability of judges to properly deliver justice in accordance with the circumstances of each case. Furthermore, the highly politicized nature of law and order issues may lead politicians to support mandatory sentencing laws so as to appear "tough on crime", while failing to implement or support programs which may be more effective in preventing crime.[citation needed]
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[edit] 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.[2]
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.
[edit] 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.
[edit] 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 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).[3]
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 both 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,[4] which can make for a sentence of 50 years to life. This was the actual sentence given to Leandro Andrade.
In turn, such sentences have prompted harsh criticism not only within the United States but from outside the country as well.[5]
[edit] 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."[6] 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.
[edit] 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.
[edit] 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.
[edit] Criticism
Some critics have argued that three-strikes laws violate the double jeopardy clause of the U.S. Constitution, however few U.S. judges take this argument seriously.[citation needed] In the vast majority of U.S. courts, it is generally accepted that defendants are not at risk of double jeopardy because they are not being retried or punished again for the same set of facts which gave rise to earlier convictions; the existence of these convictions is merely being used as evidence of the defendant's incorrigible character in order to enhance the sentence for the third conviction.
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, .
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. Often 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."
Some have also argued that these laws can provide criminals with a perverse incentive to commit murder. If a certain 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. That is, situations could arise in which a criminal could choose to kill a witness to a nonviolent crime rather than risk being apprehended, and get a shorter sentence for that murder than they would have gotten for the first crime or get the same long sentence they would have gotten anyway with a third felony conviction — in this hypothetical situation, under a three-strikes law the murderer has no incentive to not commit the murder (though the death penalty might apply to some such cases).
[edit] Notes
- ^ Ahmed A. White, "The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control," 37 U. Tol. L. Rev. 705 (2006).
- ^ 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).
- ^ Ken Ellingwood, "Three-Time Loser Gets Life in Cookie Theft," Los Angeles Times, 28 October 1995, 1.
- ^ See California Penal Code Section 669.
- ^ 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.
