Three strikes laws are statutes that mandate state courts to impose a mandatory extended period of incarceration to individuals convicted of a felony on the third offense. The name originates from baseball, following the model of the "Three strikes, you are out" theory. Its intent is to combat recidivism by mandating lengthy sentences to deter criminals from repeat offenses.

These laws prescribe that felons found guilty of a third serious crime should face an indeterminate term of life imprisonment. The first two "strikes" would accrue for serious felonies, while the third committed offense triggers a life sentence that could be applied for any felony, whether serious or general. Additionally, the law doubles sentences for a second strike, requiring extended sentences be served in prison (rather than in jail or on probation), and limits "good time" earned during prison to 20 percent of the sentence given rather than the 50 percent prescribed under previous law.

The practice of increasing the length of incarceration for repeat offenders dates back to the 19th century but was not a precedent for the subsequent three strikes laws. New York State, for example, had a Persistent Felony Offender law that sought to combat recidivism, but the sentences were set on a case-by-case basis, thus affording judges more discretion.

Washington State first established the strict application of the three strikes law in 1993, when voters approved Initiative 593. One year later, California adopted the law, and by 2007, 26 states and the federal government had laws following the three strikes criteria, although the laws vary considerably in their application by state.

The greatest difference lies in the sentencing, by which California imposes a mandatory sentence for any third felony conviction, whereas other state laws prescribe that all three felony convictions must be for violent crimes in order for the mandatory sentence to be applied. Efforts to change the stricter third general felony rule in California failed in 2004 when the voters rejected an amendment to the statute (offered as 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.

Criticism surrounds the law's application, since some states label their laws differently and some offenders have been "victims" of the law for crimes such as shoplifting. In some states, possession of a small amount of cocaine or marijuana is treated as a felony, so three convictions for possession would carry longer imprisonment under the three strikes laws. Some minor white-collar crimes and burglaries also marginally qualify as felonies and thus invoke application of the three strikes laws.

Critics of the three strikes law, citing numerous instances of the punishment not fitting the crime, point to the notorious case of Kevin Weber, a homeless and unemployed man sentenced to 26 years to life for the crime of stealing four chocolate chip cookies from a restaurant (his previous strikes were burglary and assault with a deadly weapon). Other critics point to the fact that defendants may be charged and convicted with two "third strikes" for a single case, which many believe invokes double jeopardy. In some cases, both strikes may arise from a single criminal act which may subject a defendant to two sentences that run consecutively, resulting in a 50-years-to-life prison sentence.

Critics also believe that criminals may choose to commit more serious offenses since the punishment is the same albeit a serious or minor third offense. Cost effectiveness is also a point of contention for critics, who point to the notion that imprisonment of older career criminals will exceed their criminal activity if and when released, thus incurring costs with no crime-reduction benefits.

Despite the debate, the U.S. Supreme Court held that such sentences do not violate the Eighth Amendment of the Constitution, which prohibits cruel and unusual punishment. In a landmark case Ewing v. California, 538 U.S. 11 2003, challenging the three strikes law, Justice Sandra Day O'Conner opined that the Supreme Court does not seek to super-legislate state policy choices and that it was enough for the justices that the State of California had a reasonable basis for believing that dramatically enhancing sentences for habitual felons advanced the goals of its criminal justice system.

Some amendments to the original law have passed after its enactment. In November 2000, about 61 percent of California voters supported an amendment to the statute (offered in Proposition 36) that scaled back punishment of those convicted for possession to mandate drug treatment instead of life in prison. In November 2004, California voters considered another reform (Proposition 66) to eliminate several crimes, such as residential burglary, from the three strikes rule, but narrowly rejected it. Proposition 66 would have released approximately 37,000 people from state prisons, which proved to be a major voters' concern. Research showed that as of June 2005, 60 percent of the state's 7,700 third strike inmates had committed a nonviolent or less serious third strike.

Undaunted, critics offered other amendments to reduce the penalty imposed by the three strikes laws against nonviolent criminals. People v. Cluff, 2001 87 Cal.App.4th 991, and People v. Garcia, 1999 20 Ca1.4th 490, 493-494, both dealt with courts' discretion to remove strikes and offer sentences proportionate to the crimes at issue. In Garcia, the Supreme Court held that a trial court may exercise its discretion when applying the three strikes law and dismiss prior conviction allegations. This ruling does not force judges to dismiss prior strikes but instead affords them the opportunity to limit the damage potentially caused by the strict application of the three strikes law.

As with many laws, the three strikes law remains under challenge. Law enforcement officials believe that the law affords some flexibility and that judges have discretion in sentencing criminals. Some mitigation of extreme application of the three strikes sentences has occurred over the years and may continue.

References:

1) Domanick, Joe. 2004. Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State. Berkeley, CA: University of California Press.

2) Reynolds, Mike. Three Strikes and You're Out.

3) White, Ahmed A. 2006. "The Juridical Structure of Habitual Offender Laws and the Jurisprudence of Authoritarian Social Control." University of Toledo Law Review 37:705.

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