Three-strikes laws mandate long sentences for habitual offenders. The ongoing controversy surrounding these laws revolves around those advocates who argue that long-term incarceration is the most effective way for the community to remain safe and secure; a similarly active group of opponents argues that such laws (particularly California’s) are in violation of the Eighth Amendment of the U.S. Constitution because they impose “cruel and unusual” punishment.
In 1993, a parolee who had been released after serving 8 years of a 16-year sentence for kidnapping killed 12-year-old Polly Klaas. Her death received nationwide media coverage and was met with significant public outrage. Amid this atmosphere, three-strikes laws emerged. The same year as Klaas’s murder, Washington state became the first state to enact a three-strikes law. One year later, by way of a statewide proposition, California did likewise. By the end of the decade, the federal government and over half the states had also instituted laws of this type. These laws followed a trend begun in the 1980s when “get tough” attitudes were evidenced by lengthier prison sentences and increased prison populations.
Under the most prevalent definition of a three-strikes law found in most states, a person who has been convicted of two prior felonies and then is charged with a new, third serious or violent offense is subject to receiving a prison sentence of from 25 years to life. The intent is to respond to repeat violent offenders in a harsh manner and to decrease the number of inmates involved in the prison’s “revolving door” of entry, release, and re-entry. Three-strikes incarcerations are typically premised on the penology concepts of “incapacitation” (i.e., long-term isolation from society for selected individuals) and “deterrence” (i.e., discouraging the general public from committing criminal offenses).
This entry focuses on the California three-strikes law, as it has received the most extensive nationwide examination by both legal scholars and social science researchers. The extensive review of the California law is attributable to its extremely widespread use by California officials and also the unique language of the statute, which sets it far apart from the laws of other states.
II. Key Legal Decisions
California accounts for about 90 percent of all three-strikes cases nationwide (Vitiello 2002). The impact of the law is reflected in the third-strike population in California jumping from 254 in 1994 to 7,234 in 2003, a 2,709 percent increase (Ehlers, Schiraldi, and Zeidenberg 2004). As for California’s statute, it is distinctive in that “any felony,” including nonviolent offenses, can constitute the third strike. See California Penal Code Ann., Section 667 (e) (2) (A) (West 1999). One 2003 study of California’s three-strikes law found that for 57 percent of third strikers, the offense that triggered their 25-yearsto- life in prison was a nonviolent offense. For example, it was found that over 10 times as many third strikers were serving life sentences for drug possession (672) than for second-degree murder (62) (Ehlers, Schiraldi, and Ziedenberg 2004). In fact, 360 individuals in California are serving life sentences under three strikes for shoplifting small amounts of merchandise (Chemerinsky 2004, 11–13), a result of a “wobbler offense” legal provision whereby a misdemeanor petty theft can be treated, under certain circumstances, as if it were a felony.
Inmates who contest their incarceration under three strikes, particularly California prisoners, invariably argue on appeal that the sentence is “grossly disproportionate” to the offense and hence a violation of their Eighth Amendment right to be free from “cruel and unusual” punishment. Cruel is generally interpreted to mean excessive, while unusual is typically thought to mean out of the ordinary or deviating from normal.
During the initial years following the passage of three strikes in California, the attorney general of the state and others attributed the drop in statewide crime to the implementation of three strikes. The attorney general’s office reported that since the passage of three strikes, the “violent crime rate had dropped 26.9 percent” (Vitiello 2002). Also, anecdotal comments have been made relative to the perceived effectiveness of the law.
For example, a two-strikes parolee stated that “he’s flipped 100 percent . . . that the law has scared him . . . and that it will keep him working hard and keep his attitude adjusted.” A prosecutor stated, “We’re getting some very bad people, and instead of them doing life on the installment plan, they’re just going away” (Peck 2004, 221). Additionally, a former attorney general for the state reported that “in the last year before three strikes took effect, 1994, 226 more paroled felons chose to move to California than move away from it,” whereas “after the law took effect, in 1995, 1335 more paroled felons chose to move away from California than move to it” (Peck 2004, 222). In other words, California’s three-strikes law has persuaded prospective third strikers to avoid the state and seek refuge in states whose laws may be perceived as being not quite so harsh.
Opponents of three-strike laws contend that there are many reasons to question the propriety and effectiveness of such laws, particularly California’s law. For one, the question of whether three strikes has in fact been an actual cause of the decrease in California crime rates has been addressed in a number of studies. One study found that the California law did not reduce crime below the level that would have been expected considering the prevailing downward trend that had begun before the passage of the law (Stolzenberg and D’Alessio 1997). In other words, the nationwide decrease in crime beginning around 1992 and continuing throughout the 1990s was most likely caused by factors other than three strikes. Such factors commonly advanced include the downturn in the crack cocaine market, community policing measures, an improved economy, gun intervention programs, and a smaller population of people in the so-called crime-prone age range, generally considered to be between the ages of 15 and 25.
The Justice Policy Institute in a 2004 report compared the six California counties that used three strikes most heavily with the six counties that used the law less frequently to see if there were differences in the crime rates. They found that “counties that used the three strikes at a higher rate did not experience greater reductions in crime than counties that used the law less frequently” (Ehlers, Schiraldi, and Ziedenberg 2004, 15). In fact, “the six large counties using three strikes least frequently had a decline in violent crime that was 22.5 percent greater than was experienced by the six large counties using three strikes the most frequently” (Ehlers, Schiraldi, and Ziedenberg 2004, 17).
A 1998 study looked at the impact of three strikes by comparing the crime rates in states with such a law with those in states without such a law. The findings demonstrated that “[s]tates with three-strikes laws do not appear to have experienced faster declines in crime since those laws were implemented, than have states without such laws” (Greenwood et al. 1998). The Justice Policy Institute’s more recent 2004 study compared New York (a non–three-strikes state) with California and found that California’s 2002 crime rates were much higher than New York’s, even though California enacted its threestrikes law eight years earlier (Ehlers, Schiraldi, and Ziedenberg 2004, 20). An earlier 1997 Justice Policy study compared the crime rate in New York City with that in Los Angeles and determined that New York City had experienced much lower levels of crime (Ambrosio and Schiraldi 1997).
The Justice Policy Institute examined the question of three-strikes laws’ disproportionate impact on blacks and Latinos and determined that the “African-American incarceration rate for third strikes is 12 times higher than the third strike incarceration rate for whites” and that the “Latino incarceration rate for a third strike is 45 percent higher than the third strike incarceration rate for whites” (Ehlers, Schiraldi, and Ziedenberg 2004, 11).
The typical third-strike offender enters a California prison in his mid-thirties, whereas the “crime-prone” age range is generally considered to be between the years of 15 and 25, or perhaps to age 30. Some who question the propriety of three-strikes measures suggest that the incarcerated offender has essentially reached the point of “ageing out” of crime upon entry into prison for a third strike. Based on the premise that three strikes was initiated to take the worst and most violent offenders off the streets by selectively incapacitating them and deterring others, a study was conducted examining California crime statistics for those offenders over the age of 30. The researchers, comparing crime data that predated the implementation of three strikes with data obtained after implementation (pre–post comparison study) found that the “over 30 age group—those most subject to the three strikes law—was the only group to display an increase in violent offenses and total felony arrests during the post-three strike period. Therefore, the age group that should have been the most affected by three strikes under the deterrent or selective incapacitation theories showed no deterrent or selective incapacitation effect” (Males and Macallair 1999, 67).
In addition to the clearly enhanced incarceration costs incurred with three strikes, particularly as it pertains to older inmates’ medical needs, the issue of the fi scal impact on the court system in California has been similarly examined. The Justice Policy Institute found that three strikes resulted in increased judicial workloads, the shifting of resources from civil to criminal cases, and a significantly increased number of cases going to full trial rather than being plea-bargained (Ehlers, Schiraldi, and Ziedenberg 2004, 28). The thinking among those facing a third-strike conviction is that they have nothing to lose by demanding a full trial, as the advantages of traditional plea bargaining may not be an option provided to them.
Key Legal Decisions
The Eighth Amendment’s “cruel and unusual punishment” clause has been the subject of extensive appellate court examination relative to methods of punishment, specifically the death penalty. However, the question of if and when a lengthy incarceration can be in violation of this clause has received less judicial appellate oversight.
In the 1910 U.S. Supreme Court case of U.S. v. Weems, the issue of the “proportionality” principle relative to punishment was addressed. The Court stated that “it is a precept of justice that punishment for crime should be graduated and proportioned to offense” (U.S. v. Weems1910). The thinking behind “proportionality” review is that the courts act as a check on the individual states’ power to impose criminal sentences. In practice, however, federal appellate courts have been generally reluctant to review sentences imposed by the individual states. This resistance to such review has received the continued endorsement of the U.S. Supreme Court, as exemplified in the 1982 case of Hutto v. Davis (1982), where the Court, in effect, cautioned lower federal courts to be hesitant in reviewing individual state-imposed sentences. Further, it advised them that if such review is granted, actual successful challenges to proportionality review should be “exceedingly rare.”
Most recently the U.S. Supreme Court has taken up the issue of sentence “proportionality” review in the landmark 2003 companion cases of Ewing v. California (2003) and Lockyer v. Andrade (2003). Both cases specifically addressed California’s three-strikes law and in both cases the U.S. Supreme Court upheld the constitutionality of the law in close 5–4 decisions, holding that the “cruel and unusual punishment” clause of the Eighth Amendment had not been violated.
In Ewing, the third strike involved Gary Ewing’s stealing of three golf clubs worth $1,200. He previously had been convicted of four other felonies and eight misdemeanor offenses. His sentence was life in prison with no possibility of parole for 25 years. In Lockyer, Leandro Andrade, within a two-week span, first stole five videotapes worth $84.70 and then four videotapes worth $68.82. He was subject to California’s so-called “wobbler” offense provision, whereby petty offenses can be elevated to felony status if the individual has prior offenses. Andrade received a sentence of 50 years to life.
The U.S. Supreme Court in both Ewing and Lockyer used a four-part test in addressing proportionality in sentencing. The test was based on the concurring opinion of Justice Kennedy in the 1991 case of Harmelin v. Michigan, where he argued for the establishment of four proportionality principles in reviewing a case (Harmelin v. Michigan 1991). After engaging in such review, the Court in Ewing, although acknowledging that California’s three-strikes law has “sparked controversy” and that critics have doubted the “law’s wisdom, cost-efficiency, and effectiveness in reaching its goals,” nonetheless stated, “We do not sit as a superlegislature to second-guess these policy choices” (Ewing v. California 2003, at 27–28).
The Court, with Justice O’Connor writing the majority opinions in both Ewing and Lockyer, upheld the constitutionality of the statute by relying on both California’s “public safety interests” and California’s right to impose “life sentences on repeat offenders.”
The four Justices who dissented in Ewing and Lockyer argued that the Eighth Amendment clearly forbids, given prior precedent, prison terms that meet the threshold requirement of being “grossly disproportionate.” The dissenting justices clearly felt, based on the case facts, that the standard of “gross disproportionality” had been met and that the sentences were unjust (538 U.S., at 35–36).
Based on prior precedent, the question of what is grossly disproportionate currently appears to turn, at least in part, on whether an incarcerated person is theoretically eligible for parole at some point in time or whether a “true” life sentence has been imposed. If the sentence is indeed a “true” life sentence, the Supreme Court may be more inclined to consider it unconstitutional if it is indeed grossly disproportionate, whereas a grossly disproportionate sentence that nonetheless provides for the possibility of parole will not be found unconstitutional (compare Solem v. Helm 1983 with Rummel v. Estelle 1980). Some California prosecutors and trial court judges, even in counties that generally invoke three strikes, have softened the impact of the law in the exercise of their legal discretion. Prosecutors sometimes move to dismiss or strike a prior felony conviction in the furtherance of justice. (See California Penal Code Ann., section 667(f ) ).
Judges as well have latitude in whether to invoke three strikes and can also reduce felonies to misdemeanors. Thus, the three-strike law has not been applied with full implementation and is on occasion circumvented by criminal justice officials. Additionally, the passage by California voters in the year 2000 of Proposition 36—the Substance Abuse and Crime Prevention Act—has to a degree lessened the number of new individuals being incarcerated under the three-strikes law. The law mandates that some drug possession offenders, including three-strikes eligible offenders, may be eligible for drug treatment instead of being incarcerated.
Three-strikes laws are based, at least in part, on the concepts of “selective incapacitation” and “general deterrence.” The issue of concern here has been whether the laws actually incapacitate those offenders who are the most violent and who are considered to be strongly inclined toward repeating their offenses if they are not incarcerated for 25 years to life. As discussed earlier in this entry, research focusing on the state of California disputes whether incarcerating individuals, typically in their mid-thirties, for a third-strike nonviolent offense effectively reduces subsequent crime. The argument is that inmates in their mid-thirties are at the point of “ageing out” of crime and therefore will simply cost the prison system untold dollars as their health takes a downturn in later years. As to deterrence, research shows that states without three-strikes laws actually experience lower crime rates. This is the case even within California in counties that rarely if ever use three strikes, which likewise have lower crime rates than those counties that regularly use three strikes. In the future, proponents of three-strikes laws may contend that the laws simply serve the purpose of retribution and therefore abandon the “selective incapacitation” and “general deterrence” arguments.
The role politicians play in supporting three-strikes laws may be altered in the future. In the 1990s politicians provided widespread support for such laws; to do otherwise might have subjected them to political defeat at election time. However, given the expenses incurred in California and nationwide relating to three strikes, politicians may now be more inclined to seek alternative, less expensive ways to control crime. Currently, the money used to fund the California three-strikes initiative is money that might otherwise be available to subsidize other state services, including higher education, the park system, road construction/repair, social services, and the state highway patrol.
The Center for the Study of Media and Public Aff airs reported in 1994 that “crime stories on national network television had doubled from the previous year and murder stories had tripled.” (Mauer 1999, 15). This media attention actually occurred during a period when nationwide crime was decreasing; yet the question of whether it served in part to spur on nationwide three-strike initiatives is open to debate. If the media do significantly influence the thinking of policy makers and the public alike, the media could, in the future, similarly influence public policy decisions concerning the continuation of three-strikes policies or instead alternative less costly measures to decrease crime.
In the future, more research should be conducted into the disparate impact on blacks and Latinos relative to the application of three-strike measures. If prosecutors and trial court judges are perceived as applying the law in an inequitable fashion, justice is not served. Witnesses may question the fairness of the proceedings and be reluctant to testify, while juries may engage in jury nullification (acquitting a defendant who is otherwise legally guilty) when confronted with what appears to be selective prosecution based on race or ethnicity.
The U.S. Supreme Court will want, in future decisions, to clarify its meaning of “gross disproportionality,” so that three-strikes prisoners can have more guidance in preparing their cases for appeal. Currently, the law appears somewhat unclear, and given the nature of the sentence, typically 25 years to life, an argument can be made that more thorough explanation would be advantageous. One legal scholar asserts that “The Court needs to assert a more active role in protecting an individual’s Eighth Amendment guarantee from excessive prison sentence” (Brennan 2004).
In the future, the criminal justice officials most closely connected to the daily operation of three-strike provisions, namely trial court judges, prosecutors, and criminal defense counsel—may play a more substantial role in influencing California’s threestrikes law. A research study examined California “courtroom workgroups” through the use of semistructured interviews and questionnaires. The researchers determined that courtroom members most often recommended that the three-strikes law be changed so that the third-strike charge should pertain only to a “serious or violent felony” (Harris and Jesilow 2000).
Whether the current language of the California three-strikes statute will remain the same or be amended in order to eliminate nonviolent offenses and the escalation of misdemeanor offenses to the status of felonies is clearly unknown at present. What is known is that the general public, politicians, criminal justice practitioners, and researchers will continue to examine whether three-strikes laws are an effective mechanism to reduce crime committed by repeat offenders.
Rick M. Steinmann
- Ewing v. California, 538 U.S. 11 (2003).
- Harmelin v. Michigan, 501 U.S. 957 (1991).
- Hutto v. Davis, 454 U.S. 370 (1982).
- Lockyer v. Andrade, 538 U.S. 63 (2003).
- U.S. v. Weems, 217 U.S. 349, 347 (1910).
- Solem v. Helm, 463 U.S. 277 (1983).
- Rummel v. Estelle, 445 U.S. 263 (1980).
- Ambrosio, Tara-Jen, and Vincent Schiraldi, Striking Out: The Crime Control Impact of Three Strikes Laws. Washington, DC: Policy Institute, 1997.
- Brennan, James J., “The Supreme Court’s Excessive Deference to Legislative Bodies under Eighth Amendment Sentencing Review.” Journal of Criminal Law and Criminology 94 (2004): 551–586.
- Chemerinsky, Erwin, “Life in Prison for Shoplifting: Cruel and Unusual Punishment.” Human Rights: Journal of the Section of Individual Rights and Responsibilities 31 (Winter 2004): 11–13.
- Clark, John, James Austin, and Henry D. Alan, Three Strikes and You’re Out: A Review of State Legislation. Washington, DC: U.S. Department of Justice, 1997.
- Domanick, Joe, Cruel Justice: Three Strikes and the Politics of Crime in America’s Golden State. Berkeley: University of California Press, 2004.
- Ehlers, Scott, Vincent Schiraldi, and Jason Ziedenberg, “Still Striking Out: Ten Years of California’s Three Strikes.” Justice Policy Institute Policy Report. March 2004.
- Greenwood, Peter, et al., Three Strikes Revisited: An Early Assessment of Implementation and Impact of Strike Laws. Santa Monica, CA: Rand, 1998.
- Harris, John C., and Paul Jesilow, “It’s Not the Old Ball Game: Three Strikes and the Courtroom Workgroup.” Justice Quarterly 17 (2000): 185–203.
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- Males, Mike, and Dan Macallair, “Striking Out: The Failure of California’s Three Strikes and You’re Out Law.” Stanford Law and Policy Review 11 (Winter 1999): 65–74.
- Mauer, Mark, “Why Are Tough on Crime Policies So Popular?” Stanford Law and Policy Review 11 (Winter 1999): 9–21.
- Peck, Robert C., “Ewing v. California: Upholding California’s Three Strikes Laws.” Pepperdine Law Review 32 (2004): 191–225.
- Stolzenberg, Lisa, and Stewart D’Alessio, “Three Strikes and You’re Out: The Impact of California’s New Law on Serious Crime Rates.” Crime and Delinquency 43 (1997): 457–469.
- Turner, Susan, et al., “The Impact of Truth-in-Sentencing and Three Strikes Litigation: Prison Populations, State Budgets, and Crime Rates.” Stanford Law and Policy Review 11 (1999): 75–91.
- Vitiello, Michael, “Three Strikes: Can We Return to Rationality?” Journal of Criminal Law and Criminology 87 (1997): 395–481.
- Vitiello, Michael, “Three Strikes Law: A Real or Imagined Deterrent to Crime?” Human Rights: Journal of the Section of Individual Rights and Responsibilities 29 (Spring 2002): 3–5.
- Worrall, John L., “The Effect of Three-Strikes Legislation on Serious Crime in California.” Journal of Criminal Justice 32 (2004): 283–296.