Symbol and Substance: Effects of California's Three Strikes Law on Felony Sentencing

Date01 March 2013
DOIhttp://doi.org/10.1111/lasr.12001
Published date01 March 2013
Symbol and Substance: Effects of California’s
Three Strikes Law on Felony Sentencing
John R. Sutton
California’s “three strikes and you’re out” law is the most notorious example
of the wave of mandatory sentencing policies that many states enacted begin-
ning in the late 1970s. While advocates and critics predicted the law would
have profound effects on aggregate punishment trends and individual case
outcomes, Feeley and Kamin’s analysis of previous sentencing reforms sug-
gested the law’s impact would be mainly symbolic because local officials would
ignore, subvert, or nullify its major provisions. While aggregate analyses have
tended to confirm this argument, so far there has been no systematic test of the
law’s effect on individual cases. This analysis uses multilevel models applied to
case-level data from 12 urban California counties to test hypotheses about
shifts in average punitiveness, the relative influence of legal and extralegal
factors on sentencing, and the uncertainty of sentencing outcomes. Results
mostly support Feeley and Kamin’s symbolic interpretation, but also reveal
important substantive impacts: since Three Strikes, sentences have become
harsher, particularly in politically conservative counties, and black felons
receive longer prison sentences.
California’s “three strikes and you’re out” law, enacted in 1994,
is the most notorious example of the wave of mandatory sentencing
reforms that swept the United States from the late 1970s through
the ‘90 s. The law’s notoriety is not due to its originality. Washing-
ton state passed the first Three Strikes law the year before, and nine
other states passed their own laws the same year as California
(Austin et al. 1999). Moreover California’s law was not qualitatively
different from the state’s existing mandatory sentencing policy, nor
from the habitual offender statutes that had long existed in almost
all states. The new law’s notoriety arose from two sources. One was
its significance as an exemplar of penal populism. The measure
originated as a ballot initiative, and the Three Strikes movement
exploited two recent and particularly cruel murders, both commit-
ted by repeat felons, to stampede the media, voters, and state
I am grateful to Ryan King, TraciSchlesinger, and LSR reviewers and editors for their
careful reading of earlier drafts and thoughtful suggestions for their improvement.
Remaining limitations, errors, and verbal infelicities are wholly my responsibility. Please
direct all correspondence to John Sutton, Department of Sociology, University of
California, Santa Barbara CA 93106-9430; e-mail: sutton@soc.ucsb.edu.
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Law & Society Review, Volume 47, Number 1 (2013)
© 2013 Law and Society Association. All rights reserved.
politicians toward adoption, in the process turning local tragedies
into national icons (Domanick 2004). The second source was the
exceptional breadth and harshness of the new policy. Similar to
reforms in other states, California’s law required that defendants
convicted for the second time of any of a certain class of felonies
receive twice the normal sentence, and that those convicted for a
third time receive a sentence of life imprisonment with no parole
after less than 25 years. But the California law defined “strikeable”
offenses expansively, including with the usual list of violent felonies
a set of “serious” but nonviolent felonies such as selling drugs to
minors, burglary, and weapons possession. Moreover, California is
unique in that any felony can be called a third strike at the discre-
tion of the prosecutor, not just those on the “serious or violent”
list (Austin et al. 1999; California Legislative Analyst’s Office
2005:5–9).
Following the law’s enactment, legal officials, correctional
administrators, politicians, and academics tried to predict its likely
impact. Three schools of thought emerged. Advocates of the law,
including the governor and attorney general, argued that the new
policy would reduce crime and improve public safety in a cost-
effective way by incapacitating some bad actors, deterring others,
and encouraging still others to leave the state for more lenient
climes; and further that by reducing judges’ discretion it would
reduce racial disparities in sentencing (Greenwood et al. 1994;
King & Mauer 2001; Lungren 1996). A second group of critics
doubted whether the habitual offenders targeted by the new law
actually existed as an identifiable class of defendants (Auerhahn
1999), and worried that it would lead to gross inequities of justice,
a paralyzing rise in demands for jury trials, overcrowding in jails
and prisons, and ultimately to severe fiscal strain on state and local
governments (Cushman 1996). Still others predicted that Califor-
nia’s Three Strikes law was mainly a symbolic accomplishment that
would prove to be neither panacea nor catastrophe. Feeley and
Kamin (1996:135) stated this position most forcefully when they
diagnosed Three Strikes laws as the products of “moral panics or
symbolic crusades with only marginal instrumental value in terms
of improving the effectiveness and efficiency of crime control.”
Reasoning from prior instances of panic-induced sentencing
reform, Feeley and Kamin predicted that criminal justice officials
would adapt to the new policy in a series of stages: they would
initially swim with the political tide, proclaiming their enthusiasm
for a policy they may not in fact welcome; then they would expe-
rience a period of uncertainty and confusion about how the law
should be applied in particular cases; and eventually, once the
political hubbub had died down, officials would use their discretion
to undermine the provisions of the new policy they find most
38 Three Strikes and Felony Sentencing
troublesome, nullifying its most draconian effects and smoothing
the flow of cases through the system.
Reduced to their basic elements, these forecasts suggest three
kinds of potential effects of Three Strikes on the criminal court
process.1The first concerns its impact on overall levels of punitive-
ness. Virtually all commentators, including Feeley and Kamin, pre-
dicted that prison sentences under Three Strikes would be longer
and more frequent. Available aggregate data shed little light on this
prediction: convicted Three Strikes defendants receive harsher
sentences than others, but the law’s contribution to the total inmate
population has been only about a third of what was projected
(California Legislative Analyst’s Office 2005:15–16). The real ques-
tion is whether similar defendants with similar case characteristics
are sentenced differently under Three Strikes than before—a ques-
tion that can only be answered using individual-level data. The
second issue is the impact of the law on racial-ethnic sentencing
disparities. Elimination of racial bias is an often-stated motive for
sentencing reforms, including Three Strikes, and has been the
central focus of research on specific policies (e.g., Albonetti 1997;
Kramer & Ulmer 2002; Spohn 2000; Ulmer & Kramer 1996;
Wooldredge, Griffin, & Rauschenberg 2005; Zatz 1984). The evi-
dence on Three Strikes so far—again from aggregate data—is
mixed: the proportions of blacks, Latinos, and Anglos in the
second- and third-strike populations are about the same as their
proportions in the state prison system, but black offenders are
overrepresented among third strikers by 15 percent (California
Legislative Analyst’s Office 2005:21–22). Whether this is because of
differential offending rates, racial differences in criminal histories,
or disparities in the application of Three Strikes has so far not been
tested.
The third issue is the predictability of sentencing. Three Strikes
proponents argued that sentencing was not only excessively lenient
and potentially biased, but arbitrary and uncertain in general; and
they predicted that a tighter mandatory sentence policy would
increase predictability by forcing judges to adhere to a strict sen-
tencing formula. Feeley and Kamin (1996) challenge this predic-
tion, noting that while Three Strikes may have brought clarity
to the judge’s role, it raised ambiguities for prosecutors about
how potential Three Strikes defendants should be charged. They
observed that these ambiguities initially led to unsettled relations
within courtroom workgroups and raised uncertainty about case
outcomes—a point echoed by Harris and Jesilow (2000). Feeley and
1I am not concerned with the effects of Three Strikes on crime rates. Careful studies
have already been done, and show no long-term impact (e.g., Stolzenberg & D’Alessio 1997;
Turner etal. 1999; Worrall 2004).
Sutton 39

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