Sentencing - Three Strikes, You're Out

felony life parole laws

Nine years after passing the first truth-in-sentencing law, the State of Washington passed the first of the so-called "three-strikes" laws in December 1993. The measure took effect in the wake of a voter initiative, which passed by a three-to-one margin. Three-strikes laws are the functional equivalent of sentencing guidelines in that they mandate a fixed length of sentence for repeat offenders for specified crimes or a mix of crimes—but their formulation in public debate, using the baseball analogy, is much easier to understand than the complexities of thick books of codes and sentencing tables. Under three-strikes laws, the offender receives a mandatory sentence upon conviction to the third offense—life imprisonment without parole (the case in Washington state), twenty-five years without parole (as in California), or some variant of a long sentence. The purpose behind such laws is to remove the criminal from society for a long period of time or in some instances, for life. Such criminals have been convicted repeatedly of serious offenses or felonies.

The Washington law identifies specific offenses that are "strikable." California, which passed its own (and more famous) three-strikes law just months after Washington passed its measure, specifies the categories of offenses that must precede the third felony conviction. A convicted felon in California has his or her sentence doubled if there is a prior serious or violent felony conviction on his record. The convict receives a 25-year-to-life sentence if convicted of a third felony if the previous two convictions were for serious or

TABLE 9.5
Comparison of Washington and California three-strikes laws
SOURCE: John Clark, James Austin, and D. Alan Henry, "Exhibit 1. Comparison of Washington and California Strikes Laws," in "Three Strikes and You're Out": A Review of State Legislation, National Institute of Justice, September 1997, http://www.ncjrs.org/pdffiles/165369.pdf (accessed April 3, 2005)

Type Washington California
Homicide Murder 1 or 2
Controlled substance homicide
Homicide by abuse
Manslaughter 1 or 2
Murder
Sexual offenses Rape 1 or 2
Child molestation
Incest of child

Sexual exploitation
Rape
Lewd act on child
Continual sexual abuse of child
Penetration by foreign object
Sexual penetration by force
Sodomy by force
Oral copulation by force
Robbery Robbery 1 or 2 Robbery
Felony assault Attempt murder
Assault 1 or 2
Attempt murder
Assault with a deadly weapon on a peace officer
Assault with a deadly weapon by an inmate
Assault with intent to rape or rob
Other crimes against persons Explosion with threats to humans
Extortion
Kidnapping 1 or 2
Vehicular assault
Any felony resulting in bodily harm
Arson causing bodily injury
Carjacking
Exploding device with intent to injure
Exploding device with intent to murder
Kidnapping
Mayhem
Property crimes Arson 1
Attempt arson1
Burglary
Arson
Burglary of occupied dwelling
Grand theft with firearm
Drug offenses Drug sales to minors
Weapons offenses Any felony with deadly weapon
Possession of incendiary device
Possession of prohibited explosive device
Any felony with deadly weapon
Any felony where firearm used
Other Treason
Promoting prostitution
Leading organized crime

violent felony offenses. All persons convicted under the California Three Strikes law must serve 80% of their sentence before they are eligible for parole. Table 9.5 compares the three-strikes laws in Washington and California.

Strike Zone

A strike zone refers to the crimes that constitute a strike and under what conditions those crimes become a strike. A strike generally is a serious offense, such as a violent felony, including murder, rape, robbery, arson, aggravated assault, and carjacking. The strike zone is intended to deter offenders convicted repeatedly of such crimes.

States with Three-Strike Laws

As of 2004, twenty-three states had three-strike laws. California had used the law to jail far more offenders (42,322) than any other state. Georgia was next with 7,631, followed by Florida (1,628) and Maryland (330). (See Table 9.6.)

California's law is unique in that the third offense may be any felony or even a misdemeanor. This is possible because certain classes of offenses are known under California law as "wobblers." Depending on the circumstances of the offense and the history of the offender, some offenses may be prosecuted as misdemeanors or as felonies. In virtually all other states with three-strikes laws, all three offenses must be violent crimes—murder, rape, robbery, arson, aggravated assault, and vehicular assault. In some states other crimes are also specified. These include the sale of drugs (Indiana), drug offenses punishable by five years or more of incarceration (Louisiana), escape from prison (Florida), treason (Washington), and embezzlement and bribery (South Carolina). California includes the sale of drugs to minors as one of the crimes that qualify as strike one or strike two offenses.

The differences between the crime rates for those states with three-strike laws and those without them are listed in Table 9.7. In the period 1993 to 2002, three-strike states overall had a reduction in crime of 26.8%, while those states without three-strike laws had a reduction in crime of 22.3%. California faired best among the three-strike states, with a drop in crime of 38.8%. Among states without three-strike laws, New York saw a drop in crime of 49.6%.

Tightening Preexisting Statutes

In all but one of the states with three-strikes statutes (Kansas is the exception), legislation was already on the books when the popularity of three-strikes laws caused half the states—and the Federal Government as well (in 1995)—to enact laws pioneered on the West Coast. California, for instance, had a law on its books that was very similar to those that were later passed as three-strikes statutes in other states. As reported by the NIJ, California required, pre-three-strikes:

Life with no parole eligibility before twenty years for third violent felony conviction where separate prison terms were served for the first two convictions; life without parole for fourth violent felony convictions.

'Three Strikes and You're Out': A Review of State Legislation (Washington, DC: National Institute of Justice, 1997)

California's statute, therefore, represented a tightening of existing law and a modification of it so that the triggering offense for life imprisonment was the third felony—which did not have to be violent.

TABLE 9.6
States with three-strike laws

State Strike zone defined Strikes needed to "strike out" Meaning of "striking out" Number of people in prison under three strikes
Arkansas Murder, kidnapping, robbery, rape, terrorist act.
First degree battery, firing a gun from a vehicle, use of a prohibited weapon, conspiracy to commit: murder; kidnapping; robbery; rape; first degree battery; first degree sexual abuse.
Two
Three
Not less than 40 years in prison; no parole.
Range of no parole sentences, depending on the offense.
5
California Any felony if one prior felony conviction from a list of 'strikeable' offenses'
Any felony if two prior felony convictions from list of 'strikeable' offenses.
Two
Three
Mandatory sentence of twice the term for the offense involved.
Mandatory indeterminate life sentence, with no parole eligibility for 25 years.
42,322
4
Colorado Any Class 1 or 2 felony, or any Class 3 felony that is violent. Three Mandatory life in prison with no parole eligibility for 40 years. 1
Connecticut Murder, attempt murder assault with intent to kill, manslaughter, arson, kidnapping aggravated sexual assault, robbery first degree assault. Three Up to life in prison.
Florida Any forcible felony aggravated stalking, aggravated child abuse, lewd or indecent conduct, escape. Three Life if third strike involved first degree felony, 30–40 years if second degree felony, 10–15 years if third degree felony. 1,628
Georgia Murder, armed robbery, kidnapping, rape, aggravated child molesting, aggravated sodomy, aggravated sexual battery.
Any felony.
Two
Four
Mandatory life without parole.
Mandatory maximum sentence for the charge.
7,631
Indiana Murder, rape, sexual battery with a weapon, child molesting, arson, robbery, burglary with a weapon or resulting in serious injury, drug dealing. Three Mandatory life without the possibility of parole. 38
Louisiana Murder, attempted murder, manslaughter, rape, armed robbery, kidnapping, any drug offense punishable by more than five years, any felony punishable by more than 12 years.
Any four felony convictions if at least one was on the above list.
Three
Four
Mandatory life in prison with no parole eligibility.
Mandatory life in prison with no parole eligibility.
N/A
Maryland Murder, rape, robbery, first or second degree sexual offense, arson, burglary, kidnapping, car jacking, manslaughter, use of a firearm in felony, assault with intent to murder, rape, rob, or commit sexual offense. Four, with separate prison terms served for first three strikes. Mandatory life in prison with no parole eligibility. 330(approximately)
Montana Deliberate homicide, aggravated kidnapping, sexual intercourse without consent, ritual abuse of a minor.
Mitigated deliberate homicide, aggravated assault, kidnapping, robbery.
Two
Three
Mandatory life in prison with no parole eligibility.
Mandatory life in prison with no parole eligibility.
0
Nevada Murder, robbery, kidnapping, battery, abuse of children, arson, home invasion. Three Life without parole: with parole possible after 10 years; or 25 years with parole possible after 10 years. 304
New Jersey Murder, robbery, carjacking. Three Mandatory life in prison with no parole eligibility. 10
New Mexico Murder, shooting at or from a vehicle and causing harm, kidnapping, criminal sexual penetration, armed robbery resulting in harm. Three Mandatory life in prison with parole eligibility after 30 years. 0
North Carolina 47 violent felonies; separate indictment required finding that offender is "violent habitual offender." Three Mandatory life in prison with no parole eligibility. 22
North Dakota Any Class A, B, or C felony. Two If second strike was for Class A felony, court may impose an extended sentence of up to life; if Class B felony, up to 20 years; If Class C felony, up to 10 years. 10
Pennsylvania Murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, arson, kidnapping, robbery, aggravated assault.
Same offenses.
Two
Three
Enhanced sentence of up to 10 years.
Enhanced sentence of up to 25 years.
50 (approximately)
South Carolina Murder, voluntary manslaughter, homicide by child abuse, rape, kidnapping, armed robbery, drug trafficking, embezzlement, bribery, certain accessory and attempt offenses. Two Mandatory life in prison with no parole eligibility. 14
Tennessee Murder, especially aggravated kidnapping, especially aggravated robbery, aggravated rape, rape of a child, aggravated arson.
Same as above, plus rape, and aggravated sexual battery.
Two, if prison term served from first strike.
Three, if separate prison terms served.
Mandatory life in prison with no parole eligibility.
Mandatory life in prison with no parole eligibility for first two strikes.
14

Much the same pattern, with variations, characterized the introduction of three-strikes laws in other states. In Louisiana before it enacted a "Three Strikes Law," a mandatory life term was required for the fourth felony conviction if two previous convictions had been violent or drug offenses. The new law imposed the sentence after the third offense. In Tennessee the preexisting law was mandatory life without parole for the third violent felony

TABLE 9.6
States with three-strike laws [CONTINUED]
SOURCE: Vincent Schiraldi, Jason Colburn, and Eric Lotke, "Appendix A, Table 1. States with Three-Strike Laws," in Three Strikes and You're Out: An Examination of the Impact of 3-Strike Laws Ten Years after Their Enactment, Justice Policy Institute, 2004, http://www.justicepolicy.org/downloads/JPIOUTOFSTEPREPORTFNL.doc (accessed March 31, 2005)

State Strike zone defined Strikes needed to "strike out" Meaning of "striking out" Number of people in prison under three strikes
Utah N/A Three Ranges from additional three years to life without parole, with judicial discretion. N/A
Vermont Murder, manslaughter, arson causing death, assault and robbery with weapon or causing bodily injury, aggravated assault, kidnapping, maiming, aggravated sexual assault, aggravated domestic assault, lewd conduct with child. Three Court may sentence up to life in prison. 16
Virginia Murder, kidnapping, robbery, car jacking, sexual assault, conspiracy to commit any of above. Three Mandatory life in prison with no parole eligibility. 328
Washington Charges listed in source detail. Three Mandatory life in prison with no parole eligibility. 209
Wisconsin Murder, manslaughter, vehicular homicide, aggravated battery, abuse of children, robbery, sexual assault, taking hostages, kidnapping, arson, burglary. Three Mandatory life in prison with no parole eligibility.
Mandatory life in prison with no parole eligibility.
9

conviction. Tennessee's new law imposed the same requirement for the second violent felony. In Vermont, also, a "four-strikes" law was modified and made into a three-strikes law as in Louisiana. In some states the tightening was more stringent. Thus in New Mexico, the preexisting law imposed an increased sentence of one year for the second, an increase of four years for the third, and an add-on of eight years for the fourth felony. The new law imposed a life sentence after the third violent felony but permitted parole after thirty years.

Impact and Effectiveness

In Impacts of Three Strikes and Truth in Sentencing on the Volume and Composition of Correctional Populations (Rockville, MD: National Institute of Justice, 2000), E. Chen states: "This study of Three Strikes and You're Out … and Truth in Sentencing … laws found in general [that] they had only a few short term impacts on the dynamics of prison populations in all States except Washington and for one variable in California." The impact of three strikes in Washington indicates "some reductions in the growth of parole entries and exits associated with three strikes laws." In California, three-strikes laws and truth-in-sentencing combined to increase the percentage of prisoners older than fifty years. The author attributes the absence of effects for three-strikes laws elsewhere to their minimal use in other states.

More significant effects were reported for California in the U.S. Supreme Court's judgment in the case of Ewing v. California, authored by Justice Sandra Day O'Connor (538 U.S., 2003). Citing a statement issued by the Office of the Attorney General, California Department of Justice, "Three Strikes and You're Out"—Its Impact on the California Criminal Justice System after Four Years, 1998, the Justice wrote: "Four years after the passage of California's three strikes law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25%." She continued to cite from the statement as follows:

[a]n unintended but positive consequence of "Three Strikes" has been the impact on parolees leaving the state. More California parolees are now leaving the state than parolees from other jurisdictions entering California. This striking turnaround started in 1994. It was the first time more parolees left the state than entered since 1976. This trend has continued and in 1997 more than 1,000 net parolees left California.

The statement suggests that a three-strikes law with severe penalties, energetically enforced, appears at least to cause the net export of offenders to other jurisdictions.

Another examination of three-strikes laws, written by Eric Lotke, Jason Colburn, and Vincent Schiraldi, was published in 2004 by the Justice Policy Institute. Three Strikes and You're Out: An Examination of the Impact of Three-Strike Laws Ten Years after Their Enactment (Washington, DC: Justice Policy Institute, 2004) judged the decrease in crime in three-strike states (down 26.8%) to be not significantly different from that found in states without three-strike laws (down 22.3%). In the areas of violent crime and homicide, states without three-strikes laws performed marginally better than did those with such laws. "Considering that Three Strikes was a movement largely targeted at violent recalcitrant criminals, with promises of great impact," the Justice Policy Institute report pointed out, "these findings are disappointing ten years after most strikes laws were enacted."

TABLE 9.7
Change in crime rate per population in strike and nonstrike states, by state, 1993–2002
SOURCE: Vincent Schiraldi, Jason Colburn, and Eric Lotke, "Appendix B, Table II. Change in Crime Rate per Population in Strike and Nonstrike States, by State, 1993–2002," in Three Strikes and You're Out: An Examination of the Impact of 3-Strike Laws Ten Years after Their Enactment, Justice Policy Institute, 2004, http://www.justicepolicy.org/downloads/JPIOUTOFSTEPREPORTFNL.doc (accessed March 31, 2005)

States Crime index Violent crime Property crime Homicide
Arkansas −13.5% −28.4% −11.4% −48.5%
California −38.8% −44.9% −37.6% −48.0%
Colorado −21.3% −37.9% −19.5% −31.3%
Connecticut −35.6% −31.9% −36.0% −63.3%
Florida −34.8% −35.9% −34.7% −38.9%
Georgia −27.3% −36.6% −26.1% −38.0%
Indiana −16.1% −27.1% −14.8% −22.0%
Louisiana −25.6% −37.7% −23.4% −35.1%
Maryland −22.5% −23.1% −22.4% −26.0%
Montana −26.7% −98.1% −31.5% −41.0%
Nevada −27.5% −27.4% −27.5% −20.0%
New Jersey −36.9% −40.2% −36.4% −26.4%
New Mexico −18.9% −20.4% −18.6% 2.0%
North Carolina −16.3% −30.6% −14.3% −41.6%
North Dakota −14.4% −4.5% −14.7% −54.3%
Pennsylvania −13.3% −3.9% −14.7% −26.1%
South Carolina −10.4% −19.8% −8.4% −30.0%
Tennessee −4.3% −6.5% −4.0% −29.2%
Utah −14.4% −20.7% −14.0% −34.4%
Vermont −36.5% −6.9% −37.4% −42.4%
Virginia −23.9% −22.0% −24.1% −36.1%
Washington −14.3% −32.9% −12.5% −41.3%
Wisconsin −19.5% −14.6% −19.8% −35.5%
    Three-strikes total 26.8% 33.0% 25.9% 38.2%
Non-strike states
Alabama −8.2% −42.9% −1.6% −41.4%
Alaska −22.6% −25.9% −22.1% −43.1%
Arizona −12.6% −21.3% −11.6% −16.2%
Delaware −19.1% −12.6% −20.1% −35.5%
Hawaii −4.3% −0.2% −4.4% −50.1%
Idaho −17.5% −9.5% −18.1% −7.8%
Illinois −28.3% −35.1% −26.8% −33.6%
Iowa −15.3% −21.8% −14.6% −53.5%
Kansas −12.1% −14.0% −11.9% −37.4%
Kentucky −10.8% −39.6% −6.0% −31.5%
Maine −15.9% −14.3% −15.9% −33.1%
Massachusetts −36.7% −39.8% −36.1% −30.5%
Michigan −28.5% −31.3% −28.0% −31.1%
Minnesota −19.4% −18.2% −19.5% −35.0%
Mississippi −6.0% −21.0% −4.3% −32.0%
Missouri −9.6% −27.5% −6.5% −48.2%
Nebraska 3.8% −7.1% 4.8% −28.9%
New Hampshire −23.7% 16.8% −25.8% −54.1%
New York −49.6% −53.9% −48.6% −64.4%
Ohio −8.5% −30.4% −5.7% −23.5%
Oklahoma −10.4% −20.7% −9.0% −44.8%
Oregon −15.5% −41.8% −12.9% −55.7%
Rhode Island −20.3% −29.1% −19.4% −1.8%
South Dakota −22.8% −14.7% −23.4% −56.8%
Texas −19.4% −24.1% −18.8% −49.8%
West Virginia −1.1% 12.0% −2.2% −54.5%
Wyoming −14.2% −4.6% −14.9% −11.9%
    Non Strike Total 22.3% 34.3% 20.4% 43.9%

Constitutional Test

California's statute, the most stringent, was upheld by the U.S. Supreme Court in Ewing v. California on March 5, 2003. The case involved Gary Ewing, who was on parole from a nine-year prison term when he stole three golf clubs from a pro shop in El Segundo, California. He had hidden the clubs in his trousers and consequently walked a little strangely as he left. An employee of the shop called the police after seeing Ewing limp out. The police arrested Ewing in the parking lot outside. Each of the stolen clubs was worth $399. Ewing had a long record of offenses going back to 1982. He had been sentenced for theft and given a suspended sentence. A series of offenses followed: grand theft auto (1988), petty theft (1990), battery and theft on separate occasions (1992), burglary (January 1993), possession of drug paraphernalia (February 1993), appropriating lost property (July 1993), unlawful firearms possession and trespassing (September 1993), and three burglaries and one robbery (October and November 1993). During the last of these episodes, he threatened a victim, claiming to have a gun. When the victim resisted, Ewing pulled a knife, forced the victim into an apartment, and rifled through the victim's bedroom. The victim managed to escape, raised the alarm, and Ewing fled with the victim's money and credit cards. He was arrested in December 1993 and sentenced to prison. He was released in 1999 on parole. Ten months after his release came his arrest for stealing the golf clubs. Ewing was sentenced under the three-strikes statute to twenty-five years to life. After the California Court of Appeals upheld his conviction, Ewing appealed to the U.S. Supreme Court claiming grossly disproportionate punishment under the Eighth Amendment's protection against cruel and unusual punishment.

The Supreme Court upheld Ewing's conviction, basing its ruling on an earlier case, Harmelin v. Michigan (501 U.S. 957, 996–997), which states in part that the "Eighth Amendment does not require strict proportionality between crime and sentence [but] forbids only extreme sentences that are 'grossly disproportionate' to the crime." The Court also affirmed the right of the state legislature to set policy for the purposes of protecting public safety, and, quoting from Harmelin, stated that "The Constitution 'does not mandate adoption of any one penological theory."' The Court recognized that among the justifications for a sentence, alongside deterrence, retribution, and rehabilitation, incapacitation—making the offender incapable of preying on the public—could also be used.

Justice Stephen Breyer, joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, dissented. Justice Breyer, author of the dissenting opinion, held that Ewing's sentence had been disproportionate to the offense. Justice Breyer based himself on a similar 1983 case (Solem v. Helm, 463 U.S. 277) in which the Court ruled in the petitioner's favor. In Solem a recidivist offender (Jerry Helm) received a longer sentence (a life sentence) for a lesser crime (passing a bad check for $100). All of Helm's offenses were committed in South Carolina under laws that predated South Carolina's three-strikes law but nevertheless mandated life without parole for third offenses.

The Court's five to four decision in Ewing leaves open the possibility that, in some future case, the Supreme Court may look at California's three-strikes law again and reach a different decision. For the present, however, three-strikes laws have been upheld by the highest court in the United States.

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over 2 years ago

I think this law is a trdegy for non violent crimes.

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about 3 years ago

The guy that made this law sister was shot the day after my moms wedding. :( Im named after her....

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over 3 years ago

I think the 3 strikes law is good but then again not all felonys are murder and kiddnaping and so on.

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almost 3 years ago

How recent is this list? How often is it updated?

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over 2 years ago

my son was muurdered in ms by his girlfriends son.in 09 her other son shot my son in head in louisiana.never spent any time in jail and the deputies have the gun,

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over 2 years ago

i HAVE A FRIEND IN lOUISIANA THAT HAS BEEN CONVICTED OF 2 FELONIES AND IS LOOKING TO GET A TWEET CARD TO GO OFF SHORE LIKE A UNION CARD. WHAT CAN I DO TO GET INFO/

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about 2 years ago

All people deserve wealthy life and personal loans or bank loan will make it much better. Because people's freedom is grounded on money.