Three strikes law

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Three Strikes Laws are statutes enacted by state governments in the United States which mandates state courts to impose 25 years to life sentences on persons convicted of three or more serious criminal offenses. In most jurisdictions, only crimes at the felony level qualify as serious offenses and typically the defendant is given the possibility of parole with their life sentence. These statutes became very popular in the 1990s. Twenty-four states have some form of habitual offender laws.

The name comes from baseball, where a batter is permitted two strikes before striking out on the third.

The three strikes law significantly increases the prison sentences of persons convicted of a felony who have been previously convicted of two or more violent crimes or serious felonies, and limits the ability of these offenders to receive a punishment other than a life sentence. Violent and serious felonies are specifically listed in state laws. Violent offenses include murder, robbery of a residence in which a deadly or dangerous weapon is used, rape and other sex offenses; serious offenses include the same offenses defined as violent offenses, but also include other crimes such as burglary of a residence and assault with intent to commit a robbery or murder.



The practice of imposing longer prison sentences on repeat offenders (versus first-time offenders who commit the same crime) is nothing new, as judges often take into consideration prior offenses when sentencing. However, there is a more recent history of mandatory prison sentences for repeat offenders.[1] 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 each case, and judges had much more discretion as to what term of incarceration should be imposed.

The first true "three strikes" law was passed in 1993, when Washington state voters approved Initiative 593. California passed its own in 1994, when their voters passed Proposition 184 by an overwhelming majority, with 72% in favor and 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 being convicted of three felonies.[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.

Enactment by states

The following states have enacted three strike laws:

They are formally known among lawyers and legal academics as habitual offender laws.[6] They are designed to counter criminal recidivism by physical incapacitation via imprisonment. A person accused under such laws is referred to in a few states (notably Connecticut and Kansas) as a "persistent offender," while Missouri uses the unique term "prior and persistent offender."


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 California mandates 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.

Effects in California

Violent crime, but especially homicide, has fallen in the Los Angeles area, as well as other areas of the southland—Los Angeles's 2010 homicide count was 297, less than a third of the 1992 high of 1,000 homicides.[7] However, this may just be a correlation and not causal, as violent crime has also fallen in other areas of California where the three strikes law is not enforced. It should also be noted that punishments for homicides are extremely harsh, resulting in extremely long sentences, life sentences without the possibility of parole or even the death penalty, even for the first conviction, overshadowing any deterrent effect of the three strikes law.[citation needed]

However, there is some evidence that criminals on their last strike are more desperate to escape from police and therefore more likely to attack police.[8][9] This does not reveal whether or not the criminals in question were or were not more desperate and willing to kill prior to their last strike.[10]

Successful amendment

On November 7, 2000, 60.8% of the state's voters supported an amendment to the statute (offered in Proposition 36) that scaled it back by providing for drug treatment instead of life in prison for most of those convicted of possessing drugs after the amendment went into effect.

A new sentencing guideline established by AB 109, was approved in October 2011. This bill does not eliminate TSL; however, it gives convicted criminal opportunities to participate in alternative rehabilitative services in lieu of prison time. This is an opportunity to prove to the courts that they want something better in life than to continue down the criminal path. Felony crimes that are punishable by imprisonment such as, possession of methamphetamine for sale, possession of marijuana for sale, unlawful driving or taking of a vehicle, forgery, receiving stolen property, cruelty to animals, driving under the influence of alcohol or drugs and burglary will serve 16 months to 3 years in county jail, if the crime is considered nonviolent, non-serious and non-register able sex offenses. This prison overhaul changes sentencing structures but leaves judges with little limited discretion when it comes to sentencing, Judges may commit the offender to County Jail, or they can impose what's called a split sentence, with a portion served in jail and the rest on mandatory supervision. Once a person is handed a jail sentence, it is the jail staff that determines if an individual can serve time in one of the alternative ways offered. Alternatives include various levels of electronic monitoring via ankle bracelet, certain types of drug and alcohol treatment programs and work release: giving a convicted felon a chance to have their case monitored on a one to one basis. This process will help to eliminate individuals who choose to continue down the criminal path, while acknowledging individuals who wish to learn alternative ways to succeed at becoming a productive member in society At this point if an individual finds themselves in court facing sentencing under TSL guidelines there will be no more room for appeals, as you can only offer services to an individual, you cannot make them want to change: It is solely up to the individual himself.[11]

Controversial results

Some unusual scenarios have arisen, particularly in California — the state punished, up until 2011, shoplifting and similar crimes involving under $400 in property as felony petty theft if the person who committed the crime had one prior conviction of any form of theft, including robbery or burglary and who had served time in jail or prison for that offense. (The law was changed in 2011 to require three prior theft related convictions before a petty theft could be charged as a felony.) 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), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, previous convictions for robbery and attempted robbery, sentence later reduced to six years).[12] In Rummel v. Estelle (1980), the Supreme Court upheld life with possible parole for a third-strike fraud felony in Texas, which arose from a refusal to repay $120.75 paid for air conditioning repair that was subsequently considered unsatisfactory.[13] Rummel was released a few months later, after pleading guilty.[14]

In California, first and second strikes are counted by individual charges, rather than individual cases, so a defendant may have been charged and convicted of "first and second strikes", potentially many more than two such strikes, arising from a single case, even one that was disposed of prior to the passage of the law. Convictions from all 50 states and the federal courts at any point in the defendant's past, as well as juvenile offenses if the defendant was age 16 or older that would otherwise be sealed can be counted (although once a juvenile record is sealed, it cannot be "unsealed"; it does not exist any longer and there is no longer any record to be used as a prior conviction), regardless of the date of offense or conviction or whether the conviction was the result of a plea bargain. It is up to the prosecutor's discretion how many charges to levy against a defendant for a single criminal event.[15]

Defendants already convicted of two or more "strike" charges arising from one single case potentially years in the past, even if the defendant was a juvenile over 16 at the time, can be and have been charged and convicted with a third strike for any felony or any offense that could be charged as a felony (including "felony petty theft" or possession of a controlled substance prior to Proposition 36 (see below)) and given 25 years to life. (In the California Supreme Court decision People vs. Garcia, 1999, the Court withdrew residential burglary from the juvenile strike list. For a juvenile residential burglary to count it must also be adjudicated in combination with another felony such as armed robbery, which is a strike. Out of the over 43,000 second and third strikers in California prisons today, none has received a prior strike for residential burglary as a juvenile.)[citation needed]

It is possible for a defendant to be charged and convicted with multiple "third strikes" (technically third and fourth strikes) in a single case. It is also possible for multiple "third" 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,[16] which can make for a sentence of 50 (or 75, or 100) years to life. 50 years to life was the actual sentence given to Leandro Andrade (more information below).

In turn, as a result of all these factors, three strikes sentences have prompted harsh criticism not only within the United States but from outside the country as well.[17] Within California, criticism has come from organizations such as Families to Amend California's Three Strikes (FACTS).[18] On a practical level, the Stanford Law School Three Strikes Project is working to reverse life sentences imposed for non-violent, minor felonies. Enforcement of the provision differs from county to county in California. For instance, current Los Angeles County District Attorney Steve Cooley does not pursue third strike convictions against offenders whose felony is non-violent or non-serious in nature.

Consequences and criticisms

Legal implications

There are many legal implications of the three strikes law that raise problematic and ethical questions. California is the only state in which a misdemeanor crime can be made into a third strike. In Leandro Andrade’s case, he was given two 25 to life sentences for various shoplifting charges that were deemed felonies given California’s three strikes provision that would otherwise, if a first offense, result in just 6 months of jail. He appealed his case on grounds of cruel and unusual punishment via the 8th Amendment. His case was determined not cruel and unusual because no precedent existed that a three strikes sentence was cruel and unusual.[19] In California Supreme Court case People v. Williams, the Court stated that a sentencing judge may not impose a life sentence if the defendant’s “character, background, and prospects” place him “outside the spirit” of the three strikes law. They ruled that a trial court is required to conduct this analysis of the spirit of the law, but without clear clarification on how to do so. Michael Romano provides ways to determine the “spirit” of the law in relation to an individual case. Sentencing should reflect the legislative intent of the law, which is to target violent career criminals. If an individual does not fall into this category, he should not be given a life sentence. However, contradicting interpretations and sentencing commissions limit the consistency of determining the “spirit of the law.[20]” Even though a judge may have more discretion, mandatory sentencing laws ensure grand punishments that manifest in higher ratios of convictions and severity of prosecutions, lower ratios of appeals to convictions, and lower percentages of overturned convictions on appeal. The three strikes law is an application that simplifies consequences for habitual criminals, leading to lower accuracy.[21]

Racial disparities

The Three Strikes policy currently costs approximately $500 million per year to implement, but conducted studies do not reflect that the policies have played a role in the reduction of crime. There are social and economical costs associated with maintaining the Three Strikes policies. The application and enforcement of Three Strikes laws are varied demographically, and the analyses of prison populations reflect this. In California, the social costs are borne disproportionately by African American men, who constitute only about 3% of the state’s population, but represent approximately 33% of second-strikers and 44% of third-strikers among California prison inmates.[22] African American men have been the subject of high rates of criminal offending and victimization. In Florida, female offenders were rarely sentenced using Three Strikes policies – however, when the females were African American, they were more likely to be sentenced under habitual offender laws. When examining the intersectionality between age, race, sex, and employment status while controlling for legal factors, young Black and Hispanic males faced greater chances of imprisonment than middle-aged White males.[23] Evidence shows that judges would often include stereotypes and characteristics of subgroups in order to apply the Three Strikes laws. Crime rates are not the only indicator relative to the reinforcement of these laws. Higher levels of racial heterogeneity in a population have been directly linked to the implementation of Three Strikes Laws – demonstrating racial disparities amongst the prison population.[24] A large percentage of crime, particularly drug crimes and robbery, is convicted under the Three Strikes policies.[25]

Public opinion

The public’s desire has greatly influenced support for mandatory sentencing laws but there have been findings that they support proportional sentencing more than they do utilitarian goals. California has more crimes that fall in the category of “serious” or “violent” crimes than other states, and the “third strike” can be a non-violent felony. California’s Three Strikes Law was enacted as a result of a citizens' initiative that gained support from many special interest groups and an unpopular governor seeking to revitalize his campaign.[26] Projections show that by 2026, an estimated 30,000 “three-strikes” prisoners will be serving sentences of twenty-five years to life. This aging population will place an extraordinary burden upon the resources of the California penal system, a consequence of which the public was not informed.[27] Politicians have felt that the move towards mandatory sentencing would garner votes when that does not necessarily represent the true opinions of the divided public. Electoral advantage is actually exaggerated due to the little information that the public understands regarding the law.[28] Only one third of the public in a nationwide survey could name an offense that is carried in mandatory sentencing. Support for the three strikes law is only strong when it comes in hand with the fact that they address forms of criminality that trigger a punitive response from the public: violent crime and crime by recidivists. Only 17% of the public support mandatory sentencing without specified crime type.[29] Through thorough research of focus groups, multiple-item scales, and vignettes, the results were that the public only condones mandatory laws in the most serious offenders and are willing to provide leniency for other crimes.


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."[38] 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 plurality in Ewing, Justice Sandra Day O'Connor analyzed the serious problem of recidivism among criminals in California, applied rational basis review, 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.

In his dissenting opinion in the companion Lockyer case, Justice David H. Souter shot back at the majority: "If Andrade's sentence ... is not grossly disproportionate, the principle has no meaning."[15]

'Three strikes' In New Zealand

New Zealand introduced a form of the three strikes law in early 2010 as part of the Sentencing and Parole Reform Bill.[39] The legislation was introduced by the ACT Party and passed by 63 votes to 58 in May 2010. There was strong opposition from the Labour Party, the Greens and the Maori Party. Supporting the Bill, Act MP David Garrett said it would make New Zealand a safer place. Labour's Grant Robertson said his party was deeply concerned about rising crime rates but the bill did not address the causes of those crimes.[40]

The Act applies to offenders who commit one of the 40 qualifying crimes which are punishable by a maximum of seven years' imprisonment or more. For a first strike, the offender will be sentenced as normal, with the usual parole eligibility. A second strike will also bring a prison sentence, but the jail term must be served with no parole unless doing so would be manifestly unjust. If they commit a third offence, they receive the maximum prison penalty with no possibility of parole.[41]

See also


  1. ^ Zimring, Franklin E.; Hawkins, Gordon; Kamin, Sam (2001). Punishment and Democracy: Three Strikes and You're Out in California. New York: Oxford University Press. p. 4. ISBN 0-19-513686-1.
  2. ^ 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).
  3. ^ Tx PC Chap 12: Punishments
  4. ^ Brown, Brian; Jolivette, Greg (October 2005). "A Primer: Three Strikes - The Impact After More Than a Decade". California Legislative Analyst's Office. Retrieved 28 October 2012.
  5. ^
  6. ^ White, Ahmed A. (Spring 2006). "The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control". The University of Toledo Law Review 37 (3): 705.
  7. ^ "LA's homicide rate lowest in four decades". 2011-01-06.
  8. ^ Johnson, Jeffry L.; Saint-Germain, Michelle A. (2005). "Officer Down: Implications of Three Strikes for Public Safety". Criminal Justice Policy Review 16 (4): 443–460. doi:10.1177/0887403405277001.
  9. ^ Moody, Carlisle E.; Marvell, Thomas B.; Kaminski, Robert J. (January 11, 2002). "Unintended Consequences: Three-Strikes Laws and the Murders of Police Officers". unpublished manuscript.
  10. ^ Reynolds, Mike (2004). "3-Strikes 1994 to 2004: A Decade of Difference". Three Strikes and You′re Out.
  11. ^ Pasko, Jessica. "Error: no |title= specified when using {{Cite web}}". Santa cruz sentennial. Retrieved 2012.
  12. ^ Leonard, Jack (10 February 2010). "'Pizza thief' walks the line". Los Angeles Times.
  13. ^ Brauchli, Christopher (7 August 2009). "Legal Absurdities". CounterPunch.
  14. ^ Solem v. Helm, 463 U.S. 277 Footnote 8, 28 June 1983
  15. ^ a b The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander (The New Press, 2010)
  16. ^ See California Penal Code Section 669.
  17. ^ Campbell, Duncan (26 January 2002). "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: p. 3.
  18. ^ "FACTS website".
  19. ^ Danzig, Douglas (2002). "Is California's "Three Strikes" Mandatory Sentencing Law "Cruel And Unusual Punishment"". Supreme Court Debates 5 (9): 265.
  20. ^ Romano, Michael (1 February 2010). "Divining the Spirit of California's Three Strikes Law". Federal Sentencing Reporter 22 (3): 171–175. doi:10.1525/fsr.2010.22.3.171.
  21. ^ Tucker, A. (11 March 2011). "Scarce justice: The accuracy, scope, and depth of justice". Politics, Philosophy & Economics 11 (1): 76–96. doi:10.1177/1470594X10387520.
  22. ^ Chen, E. Y. (19 June 2008). "Impacts of "Three Strikes and You're Out" on Crime Trends in California and Throughout the United States". Journal of Contemporary Criminal Justice 24 (4): 345–370. doi:10.1177/1043986208319456.
  23. ^ Rodriguez, Nancy (1 March 2003). "The Impact of "strikes" in Sentencing Decisions: Punishment for Only Some Habitual Offenders". Criminal Justice Policy Review 14 (1): 106–127. doi:10.1177/0887403402250918.
  24. ^ Sorensen, J.; Stemen, D. (1 July 2002). "The Effect of State Sentencing Policies on Incarceration Rates". Crime & Delinquency 48 (3): 456–475. doi:10.1177/001112870204800305.
  25. ^ Kovandzic, Tomislav V.; Sloan, John J., Vieraitis, Lynne M. (1 June 2004). ""Striking out" as crime reduction policy: The impact of "three strikes" laws on crime rates in U.S. cities". Justice Quarterly 21 (2): 207–239. doi:10.1080/07418820400095791.
  26. ^ Greenberg, D. F. (1 April 2002). "Striking out in democracy". Punishment & Society 4 (2): 237–252. doi:10.1177/14624740222228563.
  27. ^ Rikard, R.V.; Rosenberg, E. (26 June 2007). "Aging Inmates: A Convergence of Trends in the American Criminal Justice System". Journal of Correctional Health Care 13 (3): 150–162. doi:10.1177/1078345807303001.
  28. ^ ROBERTS, JULIAN V. (1 August 2003). "Public Opinion and Mandatory Sentencing: A Review of International Findings". Criminal Justice and Behavior 30 (4): 483–508. doi:10.1177/0093854803253133.
  29. ^ Applegate, B. K.; Cullen, F. T., Turner, M. G., Sundt, J. L. (1 October 1996). "Assessing Public Support for Three-Strikes-and-You're-Out Laws: Global versus Specific Attitudes". Crime & Delinquency 42 (4): 517–534. doi:10.1177/0011128796042004002.
  30. ^ Ellingwood, Ken (28 October 1995). "Three-Time Loser Gets Life in Cookie Theft". Los Angeles Times: p. 1.
  31. ^ "Cookie Burglar gets at least 25 years". CNN News Briefs. 1995-10-27.
  32. ^ Cathcart, Rebecca (August 16, 2010). "Judge Orders Man Freed in a Three-Strikes Case". The New York Times.
  33. ^ ERIN YOSHIOKA (May 6, 2005). "A "three-strikes" injustice: Why is Santos Reyes facing 26 years to life in prison?". Socialist Worker. Retrieved 2010-12-09. "SANTOS REYES could spend the rest of his life in a California prison. His crime? He took the written portion of a driver's license test for his cousin, to help him qualify for a license. For this, he was charged under California's "three-strikes" law, which imposes a mandatory 25-years-to-life sentence on any person convicted of a third felony."
  34. ^ matt gonzalez (May 6, 2005). "Free Santos Reyes!". Socialist Worker. Retrieved 2010-12-09. "SANTOS REYES could spend the rest of his life in a California prison. His crime? He took the written portion of a driver's license test for his cousin, to help him qualify for a license. For this, he was charged under California's "three-strikes" law, which imposes a mandatory 25-years-to-life sentence on any person convicted of a third felony."
  35. ^ Allen Jones (June 12, 2008). "Let nonviolent prisoners out: Building beds for the mentally ill is a fine goal, but why not reduce overcrowding first?". Los Angeles Times.,0,1263606.story. Retrieved 2010-12-04. "Santos Reyes, George Anderson, Linda Susan Teague, Gary Ewing and Leandro Andrade are serving a total of 176 years, and the most serious criminal among them is Ewing. He stole three golf clubs."
  36. ^ Andre Coleman (2006-02-02). "Three strikes may be out". Pasadena Weekly. "For instance, Santos Reyes of El Monte is now doing 25 years to life for lying on the written portion of a driver's license test."
  37. ^ Jaffe, Ina. "Cases Show Disparity Of California's 3 Strikes La". NPR. Retrieved 2012-10-26.
  38. ^ Greenhouse, Linda (6 March 2003). "Justices Uphold Long Sentences In Repeat Cases". New York Times: p. A1.
  39. ^ "'Three Strikes' To Become Law". 2010-02-19.
  40. ^ Controversial 'three strikes' bill passes, NZ Herald, May 25, 2010.
  41. ^ Three Strikes Bill passed by Parliament, Beehive press release, May 25, 2010.