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This article is about the criminal justice law. For Internet disconnection policy, see Graduated response. For other uses of the term "Three Strikes", see Three Strikes (disambiguation) .

Three Strikes Laws are statutes enacted by state governments in the United States which require the state courts to impose a life sentence (usually with the possibility of parole) to persons who have been convicted of three or more serious criminal offenses. 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 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, provided was passed in 1993, when Washington state voters approved Initiative 593. California passed its own in 1994, when that state's 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.

The following states have enacted three strike laws:

• In 1974: Texas [ 3 ]
• In 1993: Washington
• In 1994: California, Colorado, Connecticut, Indiana, Kansas, Nevada, North Dakota,and Louisiana,
• In 1995: Arkansas, Georgia, Maryland, Montana, New Jersey, New Mexico, North Carolina, Pennsylvania, South Carolina, Utah, Vermont,and Wisconsin
• In 1996: Florida, Tennessee,and Virginia
• In 2006: Arizona

They are formally known among lawyers and legal academics as habitual offender laws. [ 4 ] 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 ." These terms are used even though all of the offenses could occur in one incident.

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.

Violent crime, but especially homicide, has fallen in the Los Angeles area, as well as other areas of the southland—Los Angeles's homicide count was 297, less than a third of the 1992 high of 1,000 homicides. [ 5 ] 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.

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. [ 6 ] [ 7 ] 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. [ 8 ]

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.

Some unusual scenarios have arisen, particularly in California — the state punishes shoplifting and similar crimes involving under $950 in property as felony petty theft if the person who committed the crime has three prior convictions for any form of theft. including robbery or burglary and have served time in jail or prison for that offense. 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). [ 9 ] 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. [ 10 ] Rummel was released a few months later, after pleading guilty. [ 11 ]

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. [ 12 ]

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.)

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, [ 13 ] 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. [ 14 ] Within California, criticism has come from organizations such as Families to Amend California's Three Strikes (FACTS). [ 15 ] 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.

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. Take 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, be 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 [ 16 ]. This case demonstrates the law’s ineffectiveness in punishing violent criminals. In California Surpreme 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. [ 17 ] ” 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 of habitual criminals, leading to lower accuracy [ 18 ] .

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 [ 19 ]. 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 [ 20 ]. 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 [ 21 ]. A large percentage of crime, particularly drug crimes and robbery, is convicted under the Three Strikes policies [ 22 ] .

The public’s desire has greatly influenced support for mandatory sentencing laws but there have been findings that they support proportional sentencing more than utilitarian goals. California first has more crimes that fall in the category of “serious” or “violent” crimes than compared with other states, and the “third strike” can be a non-violent felony. California’s Three Strikes was enacted by a citizen’s initiative that gained support from many special interest groups and an unpopular governor seeking to revitalize his campaign [ 23 ]. 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 in which the public were not informed of [ 24 ]. 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 [ 25 ]. 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 [ 26 ]. 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.

• On November 4, 1995, Leandro Andrade stole five videotapes from a K-Mart store in Ontario, California. Two weeks later, he stole four videotapes from a different K-Mart store in Montclair, California. Andrade had been in and out of state and federal prisons since 1982, and at the time of these two crimes in 1995, had been convicted of petty theft, residential burglary, transportation of marijuana, and escaping from prison. As a result of these prior convictions, the prosecution charged Andrade with two counts of petty theft with a prior conviction, which under California law can either be a felony or a misdemeanor. Under California's three strikes law, any felony can serve as the third "strike" and thereby expose the defendant to a sentence of 25 years to life in prison.
• Kevin Weber was sentenced to 25 years to life for the crime of burglary (previous strikes of burglary and assault with a deadly weapon). [ 27 ] Prosecutors said the six-time parole violator broke into the restaurant to rob the safe after a busy Mother's Day holiday, but triggered the alarm system before he could do it. When Weber was arrested, his pockets were full of cookies he had taken from the restaurant. [ 28 ]
• Gregory Taylor was serving a 25 years to life sentence for trying to break into a soup kitchen in 1997 when he was ordered to be released by Judge Peter Espinoza of California Superior Court in . [ 29 ]
• Santos Reyes in California committed a burglary as a juvenile with no jury trial (strike one); the second strike was a robbery which didn't involve injury to anybody; after ten years had passed without incident, Reyes was convicted of perjury for submitting a false application while under oath and, as a result of the three strikes law, he was sentenced to 26 years to life. [ 30 ] [ 31 ] [ 32 ] [ 33 ]

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." [ 34 ] 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." [ 12 ]

New Zealand introduced a form of the Three Strikes Law in early as part of the Sentencing and Parole Reform Bill. [ 35 ] The legislation was introduced by the ACT Party and passed by 63 votes to 58 in May . 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. [ 36 ]

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. [ 37 ]