Three-strikes law

Three strikes laws are a category of statutes enacted by state governments in the United States, beginning in the 1990s, which require courts to hand down a mandatory and typically extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. The stated rationale for these laws is that the automatic and lengthy imprisonment of individuals who commit more than two felonies is justified on the basis that recidivists are incorrigible and chronically criminal, and must be imprisoned as a matter of public safety. The name comes from baseball, where a batter has three strikes before striking out.

Critics contend that such laws are ultimately ineffective in dealing with crime and may in fact serve to perpetuate cycles of crime and violence. They argue that restricting or removing judicial discretion in sentencing limits the ability of judges to properly deliver justice in accordance with the circumstances of each case. They also point out that given the highly politicized nature of law and order issues, politicians will often support mandatory sentencing laws so as to appear "tough on crime", while failing to implement or support programs which may be more effective in stopping crime.

History

While the practice of imposing longer prison sentences on repeat offenders than on first-time offenders who commit the same crime is nothing new in American states (New York State, for example, has a Persistent Felony Offender law that dates back to the late 19th Century), 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 not enacted until 1993, when Washington voters approved Initiative 593. California followed one year later, when that state's voters approved Proposition 184 by an overwhelming majority of 72% in favor to 28% against. The initaitive proposed to the voters use the full term Three Strikes and You're Out, referring to life imprisonment after the three felonies have been committed. However, in 2000, 60.8% of the people voted for Proposition 36, which scaled back the three strikes law by providing for drug treatment instead of life in prison for some of those convicted of possessing drugs.

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.

Controversial results

Some unusual scenarios have arisen, particularly in California--the state punishes shoplifting and similar crimes as felony petty theft if the person who committed the crime has a prior conviction for any form of theft, including robbery or burglary. 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) or video tapes (Leandro Andrade), and the theft of a slice of pepperoni pizza (Jerry Dewayne Williams).

It is also possible for a defendant to be charged and convicted with two "strikes" in a single case or even a single incident. As a result, a defendant may also be given two separate sentences that run consecutively, which can make for a sentence of 50 years to life, the actual sentence given to Leandro Andrade.

In turn, such sentences have prompted harsh criticism not only within the United States but from outside the country as well.

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." 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 majority 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

In November, 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.

Failed California amendment

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.

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.

Criticism

Some critics have argued that three-strikes laws violate the Double Jeopardy Clause of the U.S. Constitution, though few if any American judges take this argument seriously. In the vast majority of U.S. courts, it is generally accepted that double jeopardy is not a problem because the defendant is not being retried or punished again for the set of facts giving rise to the previous convictions; the fact of the previous convictions is merely being used as evidence of the defendant's incorrigible character in order to enhance the sentence for the third conviction.

The U.S. Supreme Court has already upheld the constitutionality, in general, of using the fact of prior convictions as an aggravating factor at sentencing for the purpose of enhancing the sentence. Almendarez-Torres v. United States, 523 U.S. 224 (1998).

In addition to the aforementioned situation, another principal criticism of these laws is that many felonies involve only a minimal threat to society. In some states, possession of a small amount of crack cocaine or even marijuana may be treated as a felony, so three such convictions would carry permanent imprisonment. There are many other felonies which call into question the advisability of strict three-strikes laws, such as some minor white-collar crimes which only marginally qualify as felonies. Often a burglary, a crime which could result in the theft of something having little or no value, is perceived as being unjustly included as one of the three "strikes."

Some have also argued that these laws can provide criminals with a perverse incentive to commit murder. If a certain person already has two felony convictions, then a conviction for any third felony (such as grand theft) may carry a penalty comparable to that for a murder conviction. Critics feel that by killing a witness to a crime, a criminal may reduce his or her chances of being apprehended--as a result, under a three-strikes law he or she has no incentive not to commit the murder (though the death penalty might apply in some cases).

A two-time felon who is one serious crime away from becoming a target of these laws is often referred to as a "two-time loser."

External links

• UPI story: Study: 3-strikes laws increase homicides
• Families to Amend California's 3-Strikes
• A site supporting three strikes laws