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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 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.

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 individuals who show a pattern of lawlessness, incapacitate repeat felony offenders by keeping them behind bars, and deter others from committing similar criminal offenses. National criminal justice statistics show that the number of violent crimes has precipitously dropped over the last eight years. TSAYO legislation is not without its critics, however. In 1998 several studies called into doubt the effectiveness of three-strikes laws. Constitutional challenges have been leveled against TSAYO laws at both the state and federal levels, but courts and legislatures have resisted overturning them.

In 1994 Congress passed the violent crime control and law enforcement act (VCCLEA). Public Law 103 322, September 13, 1994, 108 Stat 1796. It imposes a mandatory sentence of life imprisonment without Parole on defendants who are convicted of a serious violent federal felony when they have two or more prior serious violent felonies or one or more serious violent felony convictions and one or more serious drug offense convictions. The first two convictions may be for state or federal offenses, but the third conviction must be for a federal offense before the VCCLEA three-strikes provision applies.

VCCLEA defines serious violent felony to include murder, voluntary Manslaughter. assault with intent to commit murder or rape, aggravated Sexual Abuse. Kidnapping. aircraft Piracy. Robbery. Carjacking. Extortion. Arson. and firearms use or possession, among others. 18 U.S.C.A. 3559. Offenses committed at the state level need not be deemed a felony by the state to trigger the VCCLEA three-strikes provision as long as the state offense is seriously violent, meaning the offense is similar to those specified by the VCCLEA. Serious drug offense is defined by the VCCLEA as knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense enumerated controlled substances. Drug offenses committed at the state level are considered serious under VCCLEA if they would be punishable by the federal controlled substances laws.

The impetus behind TSAYO laws came from a string of highly publicized cases in which a crime victim was viciously attacked by a repeat offender on parole. One of the most publicized cases was that of 12-year-old Polly Klaas from California. In 1993 she was kidnapped, molested, and murdered by Richard Allen Davis, a sex offender with a long history of criminal convictions. Polly's father, Marc, appeared on a number of national television programs to attack the criminal justice system's lenient treatment of repeat felony offenders and to advocate the enactment of three-strikes laws. Relatives of other victims, concerned citizens, prosecutors, and politicians followed suit.

Washington state's legislature was the first to respond, passing TSAYO legislation in 1993. West's RCWA 9.94A.392 et seq. The law mandates life in prison after conviction on any three of about 40 felonies, ranging from murder to robbery and vehicular assault. Defendants convicted under this law are not eligible for parole, nor may their sentence be suspended or shortened. California and 11 other states passed similar laws in 1994. Nine more states were added to the list a year later. By the year 2000 more than 24 states had adopted TSAYO laws of their own. Georgia took matters a step further, enacting a Two Strikes and You're Out law. Ga. Code Ann. S 17 10 6.1(b). Felons convicted of the state's most serious crimes only twice are sentenced to life in prison without parole. Known as the seven deadly sins, these crimes are murder, armed robbery, rape, kidnapping, aggravated Sodomy. aggravated Child Molestation. and aggravated sexual Battery .

Despite their popularity in the early 1990s, TSAYO laws have come under severe attack in the late 1990s. In 1998 several studies were released that questioned the effectiveness of such laws. Four studies were largely responsible for driving the debate: one by the Rand Institute, one by the National Institute of Justice, one by the Justice Policy Institute, and one by the Campaign for Effective Crime Policy, a nonpartisan group comprised of wardens, prosecutors, and law enforcement officials.

The studies revealed two kinds of results. In most states, little had changed. Washington had convicted 66 people under its TSAYO law. Arkansas had 12 convictions and Alaska, Connecticut, Louisiana, Maryland, North Carolina, Pennsylvania, Vermont, and New Jersey had no more than six. Wisconsin had invoked its law only once, while no one in Utah, Virginia, Montana, Tennessee, New Mexico, or Colorado had ever been prosecuted for a third-strike offense. Instead, the states that let their TSAYO laws lay idle were still seeking harsh punishments for dangerous recidivists, but under repeat-offender statutes that had been on the books for decades. In other words, for these states the TSAYO laws represented a symbolic measure that neither improved nor diminished a prosecutor's ability to keep dangerous recidivists off the streets. Similarly, the studies showed that only 35 offenders had been convicted of a third strike at the federal level through 1997.

The results were vastly different in California and Georgia. California had imprisoned more than 4,800 criminals for 25 years to life on third strikes; the state also identified more than 40,000 second-strike offenders who would await such a sentence were they subsequently convicted for any one of roughly 500 crimes. Georgia had sent approximately 1,000 defendants to prison for life without parole under its two strikes law and identified another 1,000 offenders eligible for that fate were they to subsequently commit one of the seven deadly sins.

These studies did more than arm opponents of TSAYO laws with evidence of disparate results. They suggested that the laws had been enforced more often against minority offenders than against white offenders. In California only 1,237 of the more than 4,800 defendants sentenced for a third strike were white; 2,138 were African American, 1,262 were Latino, and 201 were classified as other. The studies further indicated that these minority offenders were mostly being punished for nonviolent third strikes. Statistics demonstrated that more than twice as many defendants' third-strike offenses were for drug possession or petty theft as for murder, rape, or kidnapping. Some of these nonviolent third strikes included seemingly innocuous offenses, such as shoplifting, stealing packages of steak, and drinking alcohol at a liquor store without paying for it.

Proponents of TSAYO laws have not been dissuaded by these results. Prosecutors say that these laws remain a vital tool for them to hang over the heads of first- and second-time offenders. They contend that seemingly harmless third-strike offenses are often isolated from the first and second strikes that place the defendant in a less sympathetic context. For example, an individual who was prosecuted for a third strike after he stole a bottle of vitamins had eight prior convictions, one of which was for robbery. Another individual who was prosecuted for bigamy under California's TSAYO law had prior convictions for armed robbery. Prosecutors also point to statistics reflecting a dramatic decline in violent crime over the last eight years as conclusive proof of TSAYO laws' effectiveness.

Opponents of TSAYO laws acknowledge that prison populations have drastically increased in some states due in part to incarceration of third-strike offenders, but they question whether this result is entirely good. Reports indicate that prisons in California and Georgia are severely overcrowded. The Georgia Department of Corrections estimates that it needs nearly 14,000 more beds and a budget increase of 25 percent to accommodate the overflowing prison population. In the meantime, state prisons have erected tents as cell blocks, moved bunks into common areas, and housed three inmates in cells designed for two.

California officials have predicted that its prisons will experience a shortage of 70,000 beds from convictions under the state's TSAYO laws. They also predict that the number of inmates age 50 to 64 will increase 80 percent by , and the number of prisoners 65 and older will increase by 144 percent. They agonize over booming medical costs spent to treat geriatric prisoners and worry that the money being spent on them comes from funds designated for schools, roads, and neighborhood programs. According to one study, California spends about $1,000 on medical expenses for the average inmate, but more than $6,000 a year for inmates older than 50.

While these figures have caused concern among even the staunchest proponents of three-strikes legislation, no TSAYO law has been repealed at the state or federal level. Even legislative proposals to study the law's impact have been rejected in California, being vetoed first by a Republican governor and then by a Democratic one. The fact that California's TSAYO law is regularly used by state prosecutors and universally hated by defendants, the governors said, speaks for itself.

The U.S. Court of Appeals for the Ninth Circuit became the first state or federal court to strike down a TSAYO law in Andrade v. Attorney General of State of California. 270 F.3d 743 (9th Cir. 2001). The defendant in that case, Leandro Andrade, received a prison sentence of 50 years to life for petty theft of $154 worth of children's videotapes from two Kmart stores. Petty theft is a misdemeanor in California, punishable by no more than six months in jail. However, California law provides that petty theft by a person with a prior conviction for a property crime is a wobbler offense, meaning the crime can be prosecuted as either a misdemeanor or a felony. Andrade had no prior violent offenses, but because he had previously committed three burglaries in one day, his two instances of shoplifting were prosecuted as felonies, and the trial court imposed an indeterminate life sentence with no possibility of parole until after he had served 50 years of his sentence. Andrade was 37-years-old when he started serving his sentence.

The punishment raised an inference of gross disproportionality when compared to defendant's crime, the Ninth Circuit wrote. Even in light of the defendant's six prior nonviolent felony and misdemeanor convictions, the sentence was substantially more severe than sentences for most violent crimes in California and was unusual even when compared to applications of TSAYO laws applied to violent felons in other states, the Ninth Circuit concluded. The Ninth Circuit also concluded that the California Supreme Court, in upholding the defendant's sentence, failed to give proper consideration to the U.S. Supreme Court's decision in Solem v. Helm. 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), a case holding that a life sentence under a South Dakota recidivist law for writing a bad check amounted to Cruel and Unusual Punishment .

The state of California appealed, and the U.S. Supreme Court reversed. Lockyer v. Andrade. ___ U.S. ___ 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Writing for a five-person majority, Justice Sandra Day O'Connor noted that the Ninth Circuit overturned the California Supreme Court's decision pursuant to a Habeas Corpus petition. However, O'Connor wrote, 28 U.S.C.A. 2254(d)(1) only gives federal courts authority to overturn state court decisions in habeas proceedings if the state court decision was contrary to or an unreasonable application of clearly established federal law.

Although O'Connor agreed that Solem and Lockyer were similar cases, she emphasized that a decision may only be deemed contrary to clearly established precedent if the state court applied a rule that contradicts the governing law set forth in the Supreme Court's cases or confronts facts that are materially indistinguishable from a Supreme Court decision and the state court nevertheless arrives at a different result. This did not happen here, O'Connor said. The defendant in Solem was sentenced to life in prison without the possibility of parole, while the defendant in Lockyer became eligible for parole after serving 50 years of his sentence. This fact made the two cases materially different, O'Connor said, and justified the California Supreme Court's decision upholding Andrade's sentence.

These separate convictions, along with a prior first-degree burglary conviction, triggered the three strikes law. Because the two thefts were treated as separate incidents, the three strikes law was applied to both charges, leading to two consecutive terms of 25 years to life in prison. Andrade could not apply for parole until he served 50 years in prison, at which time he would be 87 years old. The California courts upheld this sentence as proportionate. The Ninth Circuit Court of Appeals ruled that Andrade's sentence was unconstitutional because it was grossly disproportionate. Although the California law was unconstitutional as applied, the Ninth Circuit refused to hold that the three strikes and you're out law was generally unconstitutional.

The Supreme Court, in a 5 4 decision, overturned the Ninth Circuit decision and upheld the constitutionality of the three strikes law as applied to Andrade (Lockyer v. Andrade. 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 [2003]. The Court held that federal courts must give due deference to state court sentencing decisions. In a prior ruling the Court had stated that legislatures must be given broad discretion to fashion a sentence that fits within the scope of the proportionality principle. The precise contours of this principle were unclear, which meant that state courts had more latitude to uphold sentences such as Andrade's. The Court further held that Andrade's sentence was not grossly disproportionate.

Justice david souter. in a dissenting opinion, sided with the Ninth Circuit's views. A prior Supreme Court decision had voided a life sentence given to a repeat offender for committing a theft valued at $150. Justice Souter argued that Andrade's criminal background, coupled with the petty thefts, was strikingly similar. Though Andrade would be eligible for parole at age 87, it constituted the practical equivalence of a life sentence without parole. Souter was also troubled by the state's use of the two minor theft charges, just weeks apart, as the second and third strikes. In his view, Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes. A 25-year sentence would have been reasonable but 50 years was disproportionate.

Though critics of the law were disappointed by the decision, they argued that the economic cost of incarcerating three strikes inmates may ultimately lead to the repeal of such laws. In California it will cost an estimated $700 million per year to incarcerate these offenders, and over a billion dollars to construct new prisons to house the escalating number of inmates. As the state contends with caring for an aging prison population it will be forced to decide whether it wants to allocate limited resources to maintain the three strikes law.

Further readings

D'Addesa, Danielle M. 2003. The Unconstitutional Interplay of California's Three Strikes Law and California Penal Code Section 666. University of Cincinnati Law Review 71 (spring).

Zimring, Franklin E. Sam Kamin, and Gordon Hawkins. 2003. Punishment and Democracy: Three Strikes and You're Out in California. New York: Oxford Univ. Press.