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
| 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]
| 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
| 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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