Three strikes law
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See also Three strikes law:Criticisms
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Three strikes laws are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became very popular in the 1990s. They are formally known among lawyers and legal academics as habitual offender laws.[1] A person accused under such laws is referred to in some jurisdictions as a "prior and persistent offender." The name comes from baseball, where a batter is permitted two strikes before striking out on the third.
History
The Three Strikes law significantly increases the prison sentences of persons convicted of felonies who have been previously convicted of a violent or serious felony, and limits the ability of these offenders to receive a punishment other than a prison 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 rape.
The practice of imposing longer prison sentences on repeat offenders versus first-time offenders, who commit the same crime is nothing new.[2] 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 every single case, and judges had much more discretion as to what term of incarceration should be imposed.
The first true "three strikes" law, with virtually no exceptions provided was passed in 1993, when Washington state voters approved Initiative 593. California passed its own in 1994, when that state voters passed Proposition 184 by an overwhelming majority. 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.[3]
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.
Application
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 others — most notably California — mandate 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 of "3 Strikes" in California
According to the California Dept. of Justice and the California Dept. of Corrections, for the ten years prior to the enactment of the “3 strikes law”, homicide, rape, robbery, assault, burglary, and vehicle theft totaled 8,825,353 crimes, but for the ten years after the enactment of the law, these crimes dropped to 6,780,964.[4] However the decline in crime was a general trend throughout the U.S., even in those parts of the country without three strikes laws.[5]
Another common criticism is that the law puts strain on an already overcrowded prison system. However, for the ten years prior to the enactment of the “3 strikes law,” the California prison population expanded by 400% and for the ten years after there was an overall increase of only 25.5%, a massive decrease in prison population expansion, and there is no direct evidence linking the law to the 25.5% increase. Thus, though three strikes is a significant factor in California prison overcrowding, other factors are more responsible.[4]
Some have said that there would need to be many new prisons built to house all of these criminals. However, for the ten years prior to the law, 19 new prisons were built in California, while in the ten years after 6 new prisons were built. Nevertheless, the increase in prison population and lack of additional prisons has added to prison overcrowding; currently, California's prisons are at double capacity.[6]
Finally, there is an idea that criminals on their last strike will be more desperate to escape from police and therefore will be more likely to attack police.[7][8] This does not reveal whether or not the criminals in question were or were not more desperate and willing to kill.[4]
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."[9] 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 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.
Successful California amendment
On November 7, 2000, 60.8% of the state's voters supported an amendment to the statute (offered in Proposition 36) which 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.
Failed California amendment: Proposition 66
The amendment would have required the third felony to be either "violent" and/or "serious" in order to result in a 25-years-to-life sentence, because thousands of current threestrikers are sentenced to 25 year-to-life because of non-violent and/or non-serious felonies.
On November 2, 2004, the state's voters rejected an amendment to the statute (offered in Proposition 66). 5.5 million voters (47.3%) voted yes, but 6.2 million (52.7%) voted no.
In the last week before the ballot, governor Arnold Schwarzenegger launched an intensive campaign [10] against proposition 66.[11] He stated that "it would release 26,000 dangerous criminals and rapists". In truth there are just over 8,000 people sentenced to 25 years to life under the Three Strikes Law. See California Department of Corrections second and third strike populations. Prop 66 would have only affected those sentenced to a non-violent third strike. About 57% of the 8,000 convicted under the Three Strikes Law. The following are comments of Judge Raymond Cadei, Sacramento County Superior Court, on August 6, 2004, in a hearing on the Proposition 66 ballot arguments and rebuttals, in which opponents falsely claimed that Proposition 66 would result in the release of 26,000 felons. The judge called that claim “patently false.”
Judge Cadei also ruled that since the California District Attorneys Association had in fact made the false statement not as a fact, but as an “estimate” in their opinion, opponents could cite it only if they called it an estimate and attributed it to CDAA.
Source: Reporter’s transcript of proceedings. “Let me tell you the one I do have a problem with is the rebuttal argument, which is the next exhibit, where I think it makes in the very first paragraph a patently false statement. It says if it passes, and then it makes reference to this young man who you discuss will be released, along with 26,000 other convicted criminals. Now, I look at the statistics and the numbers. It looks like that’s mathematically impossible.”
“The problem I have is that it doesn’t appear from any of the information that’s been submitted that there is evidence anywhere near 26,000 or 21,000 second strikers are currently serving life sentences, which is a precondition according to the face of the initiative for applying for re-sentencing. So it seems as phrased to be false to me. It isn’t false to say that the District Attorney’s Association has made that estimate or that as many as 26,000 may apply for resentencing. I think stating that as a fact, it says if it passes, his son will be released early along with 26,000 other convicted criminals. That’s at a minimum misleading.”
“This says as a fact that 26,000 convicted criminals are going to be released. It doesn’t say that they may be released subject to the Court’s supervision and re-sentencing considerations. What you’re making is a flat assertion of fact, which seems to be at best gross speculation and at worst probably mischaracterizing the operation of the law.”
“I don’t know how you want to phrase it, but that statement seems to be inaccurate and misleading.”
See also
Notes
- ^ Ahmed A. White, "The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control," 37 U. Tol. L. Rev. 705 (2006).
- ^ Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes and You're Out in California (New York: Oxford University Press, 2001), 4.
- ^ 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).
- ^ a b c "3-Strikes 1994 to 2004: A Decade of Difference". 2004. Archived from the original.. http://www.threestrikes.org/TenYearReport04.pdf.
- ^ Janet Gilmore (2007-02-16). "New research reveals historic 1990s US crime decline". Archived from the original.. http://www.eurekalert.org/pub_releases/2007-02/uoc--nrr021207.php.
- ^ Don Thompson (2008). "California Prisons Rocked by Problems". Archived from the original.. http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/04/04/state/n173749D21.DTL&hw=Prison+Overcrowding&sn=002&sc=953.
- ^ Jeffry L. Johnson. "Officer Down: Implications of Three Strikes for Public Safety". Archived from the original.. http://cjp.sagepub.com/cgi/content/abstract/16/4/443. Retrieved on 2007-12-03.
- ^ Carlisle E. Moody ; Thomas B. Marvell ; Robert J. Kaminski. "Unintended Consequences: Three-Strikes Laws and the Murders of Police Officers". Archived from the original.. http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=203649.
- ^ Linda Greenhouse, "Justices Uphold Long Sentences In Repeat Cases," New York Times, 6 March 2003, A1.
- ^ TV-commercial of Arnold Schwarzenegger against Proposition 66
- ^ Megan Garvey and Robert Salladay "Prop. 66 in Tough Fight", LAtimes.com
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