Three Strikes Laws

• Author: Jeffrey Lehman, Shirelle Phelps

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Criminal statutes that mandate increased sentences for repeat offenders, usually after three serious crimes.

Beginning in the early 1990s, states began to enact mandatory sentencing laws for repeat criminal offenders. These statutes came to be known as "three strikes laws," because they were invoked when offenders committed their third offense. By 2003 over half the states and the federal government had enacted three strikes laws. The belief behind the laws was that getting career criminals off the streets was good public policy. However, the laws have their critics, who charge that sentences are often disproportionate to the crimes committed and that incarceration of three strikes inmates for 25 years to life would drive up correctional costs. Nevertheless, the U.S. Supreme Court has upheld three strikes laws and has rejected the argument that they amount to CRUEL AND UNUSUAL PUNISHMENT.

The state of Washington passed the first three strikes law in 1993. Anyone convicted of three separate violent felonies must be sentenced to life in prison with no chance for PAROLE. The state of California followed, in 1994, by enacting a three strikes law that mandates a sentence of 25 years to life for a third felony conviction. Unlike Washington, the California law counts nonviolent felonies, such as BURGLARY and theft, as "strike" offenses. The popularity of the three strikes law in California has been pronounced. By 2001 over 50,000 criminals had been sentenced under the new law, far more than any other state, with almost one-quarter of the inmates facing a minimum of 25 years in prison. Not surprisingly, California's law has drawn the most attention in the debate over three strikes statutes.

The California law originally gave judges no discretion in setting prison terms for three strikes offenders. However, the California Supreme Court ruled, in 1996, that judges, in the interest of justice, could ignore prior convictions in determining whether an offender qualified for a three strikes sentence. Prosecutors have the greatest discretion; they may decide whether to count certain crimes as strikes when they file their criminal complaint. Critics have charged that this system introduces the worst of both worlds: mandatory sentences for those charged under the law and unequal application of the law. The disparity in prosecutorial use of the Californian law has meant that the law is rarely used in San Francisco but is used heavily in other parts of the state.

Supporters of three strikes laws have argued that the plummeting crime rates of the 1990s were due in part to this tough new sentencing scheme. They especially rely on California statistics, which cite the fact that approximately 1,200 offenders are sentenced per year in California under the three strikes law. They call the law a success since offenders are off the street for at least 25 years and are not able to harm the public again.

The three strikes sentencing of offenders who have committed a number of violent crimes has rarely drawn much criticism. Concerns about the fairness and proportionality of the law have been raised when an offender is sent to prison for 25 years for shoplifting or some other minor property crime. Critics note that a 25-year sentence for a third strike shoplifting offense is the same sentence meted out to those who commit murder. Long sentences for relatively minor offenses, they contend, amounts to cruel and unusual punishment, which is barred by the EIGHTH AMENDMENT. By the late 1990s a number of appeals had been raised in state and federal courts based on the disproportionality argument.

The case of Leandro Andrade became a focal point in the argument over the constitutionality of California's three strikes law. Andrade was convicted of two counts of petty theft for shoplifting a total of nine videotapes from two Kmart stores. The value of the tapes stolen amounted to $153.54. Under California law, a

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petty theft charge is usually a misdemeanor with a penalty of up to six months in county jail and a fine of up to $1,000. However, the prosecutor had the discretion to elevate the charges to felony level offenses. Andrade, who was a heroin addict, had a string of burglary, theft, and drug convictions on his criminal record. The prosecutor charged him with two counts of felony theft and a jury convicted Andrade on both counts.

HAVE THREE-STRIKES LAWS WORKED TO REDUCE RECIDIVISM?

Most state and federal laws impose stiffer sentences for repeat offenders, but they do not impose punishments as harsh as "Three Strikes and You're Out" (TSAYO) laws. TSAYO laws mandate that a heavy sentence be imposed on persons who are convicted of a third felony. The minimum prison sentence required by such laws is typically between 25 years and life. The federal government and more than two dozen states have passed TSAYO legislation since 1992.

TSAYO legislation is designed to protect society from dangerous...