Three strikes: can we return to rationality?

• Author: Vitiello, Michael
• Position: Includes appendix of laws enacted in California and other states

1. Introduction

   California's widely publicized "Three Strikes"(1) legislation was the culmination of over a decade of "get tough on crime" legislation.(2) The story surrounding Three Strikes is symptomatic of the excesses of our nation's crime prevention policy during the 1980s and 1990s.

   Despite a threefold increase in the nation's prison population between 1980 and 1994,(3) Most Americans felt more vulnerable to violent crime than they did a decade earlier.(4) At a time when crime rates were declining modestly,(5) politicians in several states seized on the fear of crime as a powerful political issue. For example, in a close gubernatorial race, Governor Pete Wilson's support of Three Strikes provides a case study of sound-bite electioneering substituting for careful analysis of frustratingly complex social and penological problems.(6)

   Two years of experience with Three Strikes in California has not quieted debate about the efficacy of the law. Proponents claim victory based on lower crime rates since its passage(7) while opponents point to widely reported cases, involving minor third strikes, leading to grossly disproportionate prison terms.(8)

   While a number of jurisdictions have recently adopted multiple offender statutes, California's is the most draconian.(9) Section II of this article examines the key elements of California's Three Strikes legislation and the events that led to its adoption.(10) Section III then considers a significant and rapid change in penological theory that has taken place in less than a decade. During the 1960s through the mid-1980s, legislatures, judges and commentators abandoned the rehabilitative ideal of the criminal justice system. A broad political coalition oversaw a return to retribution as the justification for punishment.(11) Renewed interest in multiple offender statutes like the Three Strikes legislation signals another dramatic shift from retribution to incapacitation and, to a lesser degree, deterrence as the primary justifications for punishment.(12)

   Incapacitation and deterrence are supported by utilitarian arguments; as such, they rest on factual premises. Utilitarian justifications for punishment rest on the premise that the pain inflicted by punishment is justified only if greater good results from its imposition.(13) For utilitarians, punishment should not, therefore, be imposed if it will not lead to a net benefit.

   Proponents in California and elsewhere have justified the massive increase in prison construction by reference to cost benefit analyses.(14) Section III examines whether Three Strikes can deliver on its promised benefits.(15) Careful review of the claimed benefits of incapacitation suggests that those benefits have been exaggerated.(16) Franklin Zimring and Gordon Hawkins' serious study of widespread incapacitation during the 1980s casts doubt on whether Three Strikes produced a concomitant reduction in crime.(17) Their conclusions should cause hesitation in wholesale adoption of legislation like Three Strikes. Even if Three Strikes has led to a reduction in crime, we are paying far too much for those benefits.(18)

   A great deal has already been written about Three Strikes, most of it negative and much of it forecasting doom.(19) Critics of Three Strikes rightly point to some potentially disastrous effects. Three Strikes has already exacerbated the racially discriminatory effects of sentencing policy.(20) Moreover, the projected costs for prison construction and operation are staggering,(21) and absent other ready revenue sources the legislature may be forced to shift funds from education to corrections.(22)

   Section IV discusses a number of events that may signal rational reform of Three Strikes.(23) Rational debate was largely muted during passage of Three Strikes. If we listen carefully, we can begin to hear voices of reason. In light of that fact, section IV closes with some proposed legislative reforms that may curb some of the excesses of the penological reform of the past decade.(24)

2. Three Strikes Comes to California

   A. How the "strike zone" may vary

   Multiple offender statutes, imposing stepped up sentences for "incorrigible" offenders, have a long history in the United States.(25) But during the 1990s, several states have enacted multiple offender statutes in reaction to public alarm with violent crime.(26)

   Popularized by the "Three Strikes" slogan, multiple offender statutes vary in a number of significant ways. For example, some statutes give judges and/or prosecutors discretion whether to invoke the enhanced sentencing power.(27) Statutes nationwide vary in the number of prior felonies that trigger the sentence enhancement.(28) They also vary in what qualifies as a prior "strike" for example, at least 22 states limit prior felonies to violent felonies.(29) A third variable is what qualifies as the felony that triggers the sentence enhancement. Several states require the applicable felony to be one from among an enumerated list of violent felonies.(30) Statutes also vary on whether the age of the prior felony conviction is relevant. Some statutes include a "wash out" period; in other words, if the prior conviction is sufficiently stale, it cannot be used to invoke enhancement provisions.(31)

   Another variable is the sentence imposed upon the multiple offender. In some instances, the increased punishment relates to the available sentence for the substantive offense.(32) For example, if a thief is subject to a term of five years in prison, the multiple offending thief may be subject to a term of ten years in prison.(33) More common are statutes which impose long terms of imprisonment without regard to the underlying felony.(34) Frequently, the sentence will be an indeterminate sentence of life in prison with a stated minimum term.(35) In some instances, the term of imprisonment is life without benefit of parole.(36)

   These differences are no minor matter because they may have an enormous impact on a state's prison population. Most felony prosecutions are for non-violent climes.(37) Inclusion of non-violent felonies, either as prior strikes or as a third (or final) strike, may overwhelm a prison system.(38) If a prosecutor or judge has discretion whether to invoke the enhancement penalties, limited use of the statutory provisions may prevent bloating state prison populations.

   California's Three Strikes legislation took the most extreme position on almost all of the variables discussed above. AB 971 amended California Penal Code section 667 by adding new subsections (b) through (j).(39) The law keeps intact section 667(a) (1), a harsh sentence enhancement law enacted as part of an earlier wave of "get tough on crime" legislation.(40) Subsection (a) (1) applies to any de fendant convicted of a "serious felony" who is currently charged with another serious felony.(41) That provision already provided for a sentence enhancement of five years for each of the defendant's prior serious felony convictions. The enhancement runs consecutively to the term of imprisonment for the current offense.(42) The effect of retaining section 667(a) is to make its enhancement provision applicable over and above the new enhancement provisions in section 667.(43)

   Section 667(b) states the legislative intent to "ensure longer prison sentences and greater punishment" for those who have committed prior felonies.(44) The law does so in a number of ways. For example, the law eliminates limitations on aggregate terms of imprisonment.(45) Amended section 667 prohibits probation for second or third time felons within its provisions;(46) it also withdraws discretion to commit offenders covered by its provisions to diversion programs or to the California Rehabilitation Center.(47) It reduces the amount of good time credits that may be awarded.(48) The law requires courts to sentence certain defendants to consecutive, rather than concurrent, terms of imprisonment.(49)

   Subsection 667(c) (3) also provides that "[t]he length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence."(50) Section 667(c)(3) is intended to apply the new stepped up sentences for all multiple offenders even though a defendant may not have had a felony conviction for a number of years.(51) Thus, the law recognizes no "wash out" period.

   Sections 667(d), (e) and (f) include the key provisions of the Three Strikes legislation. Subsection (d) identifies what is colloquially called a "strike."(52) Specifically, section 667(d) (1) states that any offense listed in Penal Code sections 667.5(c) or 1192.7(c) is "a prior conviction of a felony" for purposes of amended section 667,(53) i.e., one that will serve to trigger the law's enhancement provisions. Section 667.5(c) lists what are considered "violent" felonies and section 1192.7 (c) lists "serious" felonies.(54) Subsection 667(d)(3) lists certain juvenile offenses that may be used as prior "strikes" for the purpose of sentence enhancement.(55)

   Section 667(e) enhances punishment for the offender on his second strike.(56) Under subsection (e)(1), for an offender with a prior "serious" or "violent" felony conviction who has a current felony conviction -- which need not be serious or violent -- the term of imprisonment "shall be twice the term otherwise provided as punishment for the current felony conviction."(57) The doubled term of imprisonment is "in addition to any other [applicable] enhancement provisions."(58)

   Subsection 667(e)(2)(a) is the three strikes" provision of the law.(59) It provides that if a defendant has two or more prior "serious" or "violent" felony convictions, the term of imprisonment for the current felony conviction "shall be an indeterminate term of life imprisonment."(60) The minimum sentence shall be the greater of three times the term of imprisonment provided for each current felony, twenty-five years or the term of imprisonment determined by application of...