Sentencing - Three Strikes, You're Out
felony parole life 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
Controlled substance homicide
Homicide by abuse
Manslaughter 1 or 2
Incest of child
Lewd act on child
Continual sexual abuse of child
Penetration by foreign object
Sexual penetration by force
Sodomy by force
Oral copulation by force
Assault 1 or 2
Assault with a deadly weapon on a peace officer
Assault with a deadly weapon by an inmate
Assault with intent to rape or rob
Kidnapping 1 or 2
Arson causing bodily injury
Exploding device with intent to injure
Exploding device with intent to murder
Burglary of occupied dwelling
Grand theft with firearm
Possession of incendiary device
Possession of prohibited explosive device
Any felony where firearm used
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.
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.
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.
Range of no parole sentences, depending on the offense.
Any felony if two prior felony convictions from list of 'strikeable' offenses.
Mandatory indeterminate life sentence, with no parole eligibility for 25 years.
Mandatory maximum sentence for the charge.
Any four felony convictions if at least one was on the above list.
Mandatory life in prison with no parole eligibility.
Mitigated deliberate homicide, aggravated assault, kidnapping, robbery.
Mandatory life in prison with no parole eligibility.
Enhanced sentence of up to 25 years.
Same as above, plus rape, and aggravated sexual battery.
Three, if separate prison terms served.
Mandatory life in prison with no parole eligibility for first two strikes.
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
Mandatory life in prison with no parole eligibility.
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."
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.