Three strikes law 615732 223740561 2008-07-05T15:28:18Z Gerbrant 190376 rm old uncited & OR + MoS {{redirect|Three strikes}}''''' '''Three strikes laws''' are statutes enacted by [[U.S. state|state]] governments in the [[United States]] which require the [[state court]]s to hand down a [[Mandatory sentencing|mandatory]] and extended period of [[prison|incarceration]] to persons who have been convicted of a serious criminal [[offense (law)|offense]] on three or more separate occasions. These statutes became very popular in the 1990s. They are formally known among lawyers and legal academics as '''habitual offender laws'''.<ref>Ahmed A. White, "The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control," <span style="font-variant:small-caps">37 U. Tol. L. Rev. 705</span> (2006). </ref> The name comes from [[baseball]], where a batter has two [[strike zone|strikes]] before [[strikeout|striking out]] on the third. ==History== The practice of imposing longer prison sentences on repeat offenders than on first-time offenders who commit the same crime is nothing new.<ref>Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, ''Punishment and Democracy: Three Strikes and You're Out in California'' (New York: Oxford University Press, 2001), 4.</ref> For example, [[New York State]] has a ''Persistent Felony Offender'' law that dates back to the late 19th Century. But such sentences were not compulsory in every single case, and judges had much more discretion as to what term of incarceration should be imposed. The first true "three strikes" law, with virtually no exceptions provided, was not enacted until 1993, when [[Washington]] voters approved [[List of Washington initiatives to the people#1993|Initiative 593]]. [[California]] followed one year later, when that state's voters approved '''Proposition 184''' by an overwhelming majority of 72% in favor to 28% against. The initiative proposed to the voters had the title of ''Three Strikes and You're Out'', referring to ''[[de facto]]'' life imprisonment after three felonies had been committed.<ref>The substantive provisions of Proposition 184 are codified in California Penal Code Sections [http://caselaw.lp.findlaw.com/cacodes/pen/654-678.html 667(e)(2)(A)(ii)] and [http://caselaw.lp.findlaw.com/cacodes/pen/1170-1170.9.html 1170.12(c)(2)(A)(ii)]. </ref> The concept swiftly spread to other states, but none of them chose to adopt a law as sweeping as California's: By 2004, twenty-six states and the federal government had laws that satisfy the general criteria for designation as "three strikes" statutes &mdash; namely, that a third felony conviction brings a sentence of life in prison, with no [[parole]] possible until a long period of time, most commonly twenty-five years, has been served. ===Application=== The exact application of the three-strikes laws varies considerably from state to state. Some states require all three felony convictions to be for violent crimes in order for the mandatory sentence to be pronounced, while others &mdash; most notably [[California]] &mdash; mandate the enhanced sentence for any third felony conviction so long as the first two felonies were deemed to be either "violent" or "serious," or both. ===Effects of "3 Strikes" in California=== According to the California Dept. of Justice and the California Dept. of Corrections, for the ten years prior to the enactment of the “3 strikes law”, homicide, rape, robbery, assault, burglary, and vehicle theft totaled 8,825,353 crimes, but for the ten years after the enactment of the law, these crimes dropped to 6,780,964.<ref name="TenYearReport">{{cite web|url=http://www.threestrikes.org/TenYearReport04.pdf|title=3-Strikes 1994 to 2004: A Decade of Difference|date=2004}}</ref> However the decline in crime was a general trend throughout the U.S., even in those parts of the country without three strikes laws.<ref>{{cite web|url=http://www.eurekalert.org/pub_releases/2007-02/uoc--nrr021207.php|title=New research reveals historic 1990s US crime decline|author=Janet Gilmore|date=2007-02-16}}</ref> Another common criticism is that the law puts strain on an already overcrowded prison system. However, for the ten years prior to the enactment of the “3 strikes law,” the California prison population expanded by 400% and for the ten years after there was an overall increase of only 25.5%, a massive decrease in prison population expansion.<ref name="TenYearReport" /> Some have said that there would need to be many new prisons built to house all of these criminals. However, for the ten years prior to the law, 19 new prisons were built in California, while in the ten years after no new prisons were built. Nevertheless, the increase in prison population and lack of additional prisons has added to prison overcrowding.<ref>{{cite web|url=http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/04/04/state/n173749D21.DTL&hw=Prison+Overcrowding&sn=002&sc=953 |title=California Prisons Rocked by Problems |author=Don Thompson |date=2008}}</ref> Finally, there is an idea that criminals on their last strike will be more desperate to escape from police and therefore will be more likely to attack police.<ref>{{cite web |url=http://cjp.sagepub.com/cgi/content/abstract/16/4/443 |title=Officer Down: Implications of Three Strikes for Public Safety |author=Jeffry L. Johnson |accessdate=2007-12-03}}</ref><ref>{{cite web |url=http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=203649 |author=Carlisle E. Moody ; Thomas B. Marvell ; Robert J. Kaminski |title=Unintended Consequences: Three-Strikes Laws and the Murders of Police Officers}}</ref> However, this does not reveal whether or not the criminals in question were or were not more desperate and willing to kill.<ref name="TenYearReport" /> ===Controversial results=== Some unusual scenarios have arisen, particularly in California &mdash; the state punishes shoplifting and similar crimes as [[felony petty theft]] if the person who committed the crime has a prior conviction for any form of [[theft]], including [[robbery]] or [[burglary]]. As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as [[shoplifting]] golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), nine videotapes ([[Leandro Andrade]], previous strikes for home burglary), or, along with a violent assault, a slice of pepperoni pizza from a group of children ([[Jerry Dewayne Williams]], four previous non-violent felonies, sentence later reduced to six years). In one particularly notorious case, [[Kevin Weber]] was sentenced to 26 years to life for the crime of stealing four chocolate chip cookies (previous strikes of burglary and assault with a deadly weapon).<ref>Ken Ellingwood, "Three-Time Loser Gets Life in Cookie Theft," ''[[Los Angeles Times]]'', [[28 October]] [[1995]], 1.</ref> However, prosecutors said the six-time parole violator broke into the restaurant to rob the safe after a busy Mother's Day holiday, but he triggered the alarm system before he could do it. When arrested, his pockets were full of cookies he had taken from the restaurant.<ref>{{cite web|url=http://www.cnn.com/US/Newsbriefs/9510/10-27/index.html|title=CNN News Briefs|date=1995-10-27}}</ref> In California, first and second strikes are counted by individual charges, rather than individual cases, so a defendant may have been charged and convicted of "first and second strikes", potentially many more than two such strikes, arising from a single case, even one that was disposed of prior to the passage of the law. Convictions from all 50 states and the federal courts at any point in the defendant's past, as well as juvenile offenses that would otherwise be sealed can be counted (although once a juvenile record is sealed, it cannot be "unsealed;" it does not exist any longer and there is no longer any record to be used as a prior [[conviction]]), regardless of the date of offense or conviction or whether the conviction was the result of a [[plea bargain]]. Defendants already convicted of two or more "strike" charges arising from one single case potentially years in the past, even if the defendant was a juvenile at the time, can be and have been charged and convicted with a third strike for ''any'' felony or ''any'' offense that could be charged as a felony (including "felony petty theft" or possession of a controlled substance prior to Proposition 36 (see below)) and given 25 years to life. (e.g.: A defendant who accepted a plea bargain to 2 counts of residential burglary in one juvenile case 20 years before the passage of the law would have both counts regarded as first and second strikes, and would face a third strike if charged with any offense potentially chargeable as a felony, such as possession of a controlled substance or "felony petty theft"). It is possible for a defendant to be charged and convicted with multiple "third strikes" (technically third and fourth strikes) in a single case. It is also possible for multiple "third" strikes to arise from a single criminal act (or omission). As a result, a defendant may then be given two separate sentences that run consecutively,<ref>See California Penal Code Section [http://caselaw.lp.findlaw.com/cacodes/pen/654-678.html 669].</ref> which can make for a sentence of 50 (or 75, or 100) years to life. 50 years to life was the actual sentence given to Leandro Andrade. As of 2007, [[list of California state prisons|California's state prison system]] holds over 170,000 prisoners in custody in a system designed for 83,000, and most California prisons currently hold populations more than double their design capacity. Using design capacity to measure prison capacity is a term unique to the California Department of Corrections & Rehabilitation. According to the California Legislative Analyst, the actual prison bed shortfall is 16,600, beds based on nationally recognized American Correctional Association standards. The state has progressively been forced to manage this overcrowded system year by year through various workarounds, including referring nonviolent drug offenses to special "drug courts" that mandate treatment rather than incarceration (see Proposition 36 below), early releases of prisoners, raising funds to build more prisons, and transfers of prisoners to the federal system or out-of-state privately run institutions with whom the state has contracted. The system's healthcare system and several of its institutions have been found inadequate or inhumane by federal courts in successive cases, which have resulted in their being placed under special oversight. The three strikes law has further contributed to the strain on the system by causing aging of the prison population.<ref>Aging behind bars{{cite web |url=http://public.soros.org/initiatives/justice/articles_publications/publications/agingbehindbars_20010801/agingbehindbars.pdf |author=Ryan S. King and Mark Mauer |format=PDF |title=Aging Behind Bars}}</ref> In turn, as a result of all these factors, three-strikes sentences have prompted harsh criticism not only within the [[United States]] but from outside the country as well.<ref>Duane Campbell, "Three strikes and you're out &mdash; Human rights, US style: As Americans shrug off criticism of Camp X-Ray, thousands of their countrymen suffer cruel but all-too-usual punishment," ''[[The Guardian]]'', [[26 January]] [[2002]], 3.</ref> === U.S. Supreme Court response === On [[March 5]], [[2003]], the [[U.S. Supreme Court]] held by a 5–4 majority that such sentences do not violate the [[Eighth Amendment to the United States Constitution|Eighth Amendment]] of the [[U.S. Constitution]], which prohibits "cruel and unusual punishment."<ref>Linda Greenhouse, "Justices Uphold Long Sentences In Repeat Cases," ''[[New York Times]]'', [[6 March]] [[2003]], A1.</ref> In two separate opinions handed down on the same day, the court upheld California's three-strikes law against an attack on direct appeal from conviction, ''Ewing v. California'', [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=01-6978 538 U.S. 11], and a collateral attack through a petition for [[habeas corpus]], ''Lockyer v. Andrade'', [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=01-1127 538 U.S. 63] (2003). Writing for the plurality in ''Ewing'', Justice [[Sandra Day O'Connor]] analyzed the serious problem of recidivism among criminals in California and concluded: <blockquote>We do not sit as a "superlegislature" to second-guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way … To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.</blockquote> ===Successful California amendment=== On [[November 7]], [[2000]], 60.8% of the state's voters supported an amendment to the statute (offered in '''[[California Proposition 36 (2000)|Proposition 36]]''') which scaled it back by providing for drug treatment instead of life in prison for most of those convicted of possessing drugs after the amendment went into effect. ===Failed California amendment=== On [[November 2]], [[2004]], the state's voters rejected an amendment to the statute (offered in '''Proposition 66'''). 5.5 million voters (47.3%) voted yes, but 6.2 million (52.7%) voted no. 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. ==Notes== {{reflist|1}} [[Category:Criminal law]] [[Category:Crimes]] [[de:Three strikes]] [[ja:三振法]] [[fi:Three strikes]]