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Habitual offender laws (commonly referred to in parlance as three-strikes laws) are statutes enacted by state governments in the United States which mandate state courts to impose harsher sentences on habitual offenders who are convicted of three or more serious criminal offenses. They are designed to counter criminal recidivism by habitual offenders through physical incapacitation via imprisonment.
Twenty-four states have some form of three-strikes law. 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." In most jurisdictions, only crimes at the felony level qualify as serious offenses; however, notably among jurisdictions where misdemeanor offenses can qualify for application of the three-strikes law is California, whose application has been the subject of controversy as noted below.
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. Depending on the seriousness of the current and the prior crimes committed by the offender, the sentence can range from a minimum of 25 years to a maximum of life imprisonment (typically the defendant is given the possibility of parole with a life sentence).
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. For example, New York State had a long-standing Persistent Felony Offender law that dates back to the early 20th century - it was recently ruled unconstitutional however, in 2010. 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 violent or serious felonies which are listed under California Penal Code section 1192.7.
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 20 to life where 20 years must be served before becoming parole eligible. After the hype leading to the institution of these laws across the country, it soon became apparent that they were not bringing the results the public expected. Data shows that the laws didn’t necessarily reduce violent crime, but instead put away more “criminals” for non-violent and petty crimes, dramatically raising the prison population. This, no doubt[by whom?], led to the drastic reduction of the power of the Three-Strikes Law in California in 2012 by approval of Proposition 36.
The following states have enacted three-strikes laws:
The exact application of the three-strikes laws varies considerably from state to state, but the laws call for life sentences without possibility of release for at least 25 on their third strike.
Most states require one or more of the three felony convictions to be for violent crimes in order for the mandatory sentence to be pronounced. Crimes that fall under the category of “violent” include: murder, kidnapping, sexual abuse, rape, aggravated robbery, and aggravated assault. Some states include additional, lesser offenses that one would not normally see as violent. California mandated a minimum sentence of 25-to-life so long as the first two felonies were deemed to be either "serious" or "violent". For example, California did not require the third “strike” to be serious or violent to qualify for a life sentence, and 2-strike felons could easily be given this enhanced sentence for minor third strike lawbreaking. In addition, the list of crimes that count as serious or violent in the state of California is much longer than that of other states, and consists of many lesser offenses that include: firearm violations, burglary, simple robbery, arson, and providing hard drugs to a minor, and drug possession. As another example, Texas does not require any of the three felony convictions to be violent, but specifically excludes certain "state jail felonies" from being counted for enhancement purposes.
In 1995, Sioux City Iowa native Tommy Lee Farmer, a professional criminal who had served 43 years in prison for murder and armed robbery was the first person in the United States to be convicted under the Three-Strikes Law when he was sentenced to life in prison for his botched attempt to hold up an eastern Iowa convenience store. The sentencing was considered so significant that President Bill Clinton interrupted a vacation to make a press statement about it.
Another example of the three-strikes law involves Timothy L. Tyler who, in 1992 at age 24, was sentenced to life in prison without parole when his third conviction (a Federal offense) triggered the federal three-strikes law, notwithstanding that his two prior convictions involved drugs, and neither conviction resulted in any prison time served. The judge could not consider Tyler’s drug addiction, lack of violent conduct, mental health issues, or youth when sentencing.
Violent crime, but especially homicide, has fallen in the Los Angeles area, as well as other areas of Southern California: Los Angeles's 2010 homicide count was 297, less than a third of the 1992 high of 1,000 homicides. This statistic reflects overall national trends of decreasing violent crime and may be unrelated to the three-strikes law. However, this may just be a correlation and not the actual cause as shown by a previous study in 1999, comparing pre-three strikes crime rate (1991-1993) to post-three strikes crime rate (1995-1997). The dropping crime rate in California was compared directly to how severely counties enforced the three strikes law. The dropping crime rate was the same in counties with light and harsh enforcement, sometimes being even greater in counties with lighter enforcement of the three strikes law.
A more recent study in 2004 analyzing the effect of the legislation based on deterrence and incapacitation showed that the three strikes law had no significant effect on deterrence or incapacitation of crime. The lack of effect of the three strikes law on the crime rate may be due to the diminishing marginal returns associated with having pre-existing repeat offender laws in place. The 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. In addition, the three strikes law completely ignores juveniles, which make up a large part of violent crimes in California. Furthermore, there is some evidence that criminals on their last strike are more desperate to escape from police and therefore more likely to attack police. 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. Financially, the three-strikes law has had a strong effect in California since the cost of keeping an inmate incarcerated averages around $47,102 dollars a year. The more often the full force of the three strikes law is implemented the higher the cost for the state, which many of those opposed to the law claim could be used for other resources such as schools or even rehabilitation programs for inmates themselves.
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 criminals 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 other drugs and burglary will serve 16 months to 3 years in county jail, if the crime is considered nonviolent, non-serious and non-registerable 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. That process will help to eliminate individuals who choose to continue down the criminal path, but it acknowledge individuals who wish to learn alternative ways to succeed at becoming a productive member in society. Now, if an individual finds themselves in court facing sentencing under TSL guidelines, there will be no more room for appeals.
Proposition 36, a Change in the "Three Strikes Law" Initiative, was on the November 6, 2012 ballot as an initiated state statute, where it was approved.
One impact of the approval of Proposition 36 was that the approximately 3,000 convicted felons who were as of November 2012 serving life terms under the Three Strikes law, whose third strike conviction was for a nonviolent crime, became eligible to petition the court for a new, reduced, sentence. Taxpayers could save over $100 million per year by reducing the sentences of these current prisoners and use the money to fund schools, fight crime and reduce the state’s deficit.
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).
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.
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.)
It is possible for a defendant to be charged and convicted with multiple "third strikes" (technically third, fourth etc. strikes) in a single case, or for multiple "third" strikes to arise from a single criminal act (or omission). As a result, a defendant may then be given two or more separate sentences that run consecutively, which can make for a sentence of 50 ( or 75, 100, etc.) 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. Within California, criticism has come from organizations such as Families to Amend California's Three Strikes (FACTS). 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, former Los Angeles County District Attorney Steve Cooley did not pursue third strike convictions against offenders whose felony was non-violent or non-serious in nature.
The judicial flexibility of the court system at the judge’s discretion has been increasingly limited with the passing of this bill. The judges now are forced to implement certain judicial action regardless of their beliefs on what that outcome of the trial should be. This causes the natural protective safeguards insured to individuals has been more willingly disregarded in the court system. This became increasingly evident in the O.J. Simpson trial where debate occurred on whether to change the rules of jury to allow them to be able to permit a non-unanimous verdict in criminal trials. The cost implications behind the Three-Strikes Law have also come to be very controversial, especially in the area of education. The Three-Strikes Law has required more funding from the state, money that is progressively taking more funding away from education. This leads to a less well-educated population over time, which leads to further problems within the community. The funding for this law will mainly be taken away from college education, but also from other state services such as controlling environmental pollution and regulating insurance, all negatively impacting the future of the state.
In 2009, the reported annual cost of one average prisoner was around $25,900, while the reported cost of an elderly prisoner was around $ 9,000 a year with both cost rising with each progressing year. This leads to the area of age in relation to this law, for although it is often overlooked it is a major factor in the overall effectiveness of the Three-Strike law policies. The longevity of the prison sentences of those convicted by the Three-Strikes law makes the prison population increasingly older aged individuals. The longer sentences causes increases in costs with not only the increased time in prison, but also because old age bring more need of medical care which the prisons have to pay. Also, crime may be considered to decrease as a person ages, placing many people in prison who may no longer need to be contained, leading to increased costs and less space for criminals who more desperately need to be locked up. Overall the Three-Strikes law has not proven its effectiveness in the reduction of crime, but actually seems to prove the opposition. The Three-Strikes law had been associated with “10-12 percent more homicides in the short run and 23-29 percent in the long run.”
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. 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. " 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.
California’s Three Strikes Law in 1994 was primarily initiated through the form of direct democracy of the public initiative. This may be arguably dangerous for it places power over the criminal justice system in the hands of the ever-changing public, which can cause over-excessive criminal punishment and faltering government control. California’s version of the Three-Strikes law has been seen to appear as one of the harshest in the country, with only Georgia’s version coming close to equaling it. California’s version is seen to be more severe for three reasons: “First, it applies large sentencing enhancements for second as well as third felony convictions. Second, it does not limit eligibility for the harshest sentences to those with criminal records for violent crimes but instead includes those with convictions for the much more common crime of residential burglary. And finally, it greatly expands “the strike zone” by allowing the third strike, which leads to a 25-year-to-life term, to be any felony in the California Penal Code.” 
California also leads the country in the most sentencing under the Three-Strikes law, with more than 90% of all 26 U.S. states with Three-Strikes sentencing occurring within the California boundaries. The Three-Strikes law is considered to be a recidivist law, a law in which repeat offenders are punished more harshly than first-time offenders, and recidivist laws had been repeated upheld by the Supreme Court in an attempt to combat state crime. Offenders actually eligible for second-strike or third-strike offenses come to make up only a small portion of the total crime population. Within that population, the percentage of people who would be deemed eligible for the three-strikes law had seen no great increase after the law was enacted.
Alternatives to the excessive punishments under the Three-Strikes Law include a “shift [in] the power to set punishments to legal actors who are protected from direct democratic control”. This can be achieved by bestowing judges with greater discretion on the judgment and sentencing of individual cases under the law. The providence of safeguards against such powerful and extreme legislation making its way through the legal system without proper appeals can also be put into place to help correct the criminal justice system. If the public is placed with too much power or too little, the equilibrium between the state and the populace can be disrupted and unfair judgments can ensure. James Madison in the Federalist papers warned in agreement with this idea, for he stated that it is “of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part”. Thus if this idea was successfully enacted, no minority would be overpowered by the majority, and the current unequal court system would be more fair for all groups of people; in the case of the Three-Strikes law, race and class minorities along with numerous others.
The three-strikes policy currently costs approximately $500 million per year to implement, and in addition 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. These statistics can be attributed to factors such as poverty and absent fathers. 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. 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 inside the prison population. A large percentage of crime, particularly drug crimes and robbery, is convicted under the three-strikes policies.
The process of direct democracy involved in enacting three-strikes represents a new involvement of the public in sentencing that was previously reserved only for the court system. Whereas there used to be more 'buffers' between the public and those with the power to make nuanced judgments regarding sentences, there has been a shift where the power of parole boards and judges has been reduced. This, LaFree argues, can translate into unjust sentencing under three-strikes laws.
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. 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. 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. 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. 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. Prop 36 passed in California in order to give life sentence to those who committed only serious or violent crimes on their third-strike. However, the Proposition did not easily pass, 47% of the people who voted in 2012 were against it. These are the debates on Prop 36:
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." 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).
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."