History of the Three Strikes Law
The practice of imposing longer prison sentences on repeat offenders versus first-time offenders, who commit the same crime is nothing new.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 each case, and judges had much more discretion as to what term of incarceration should be imposed.[i] Washington State adopted a three-strikes law in 1993, and 22 other states have followed suit. Congress passed its federal version in 1994.[ii]
In 1994 California overwhelmingly passed Proposition 184, the initiative proposed to the voters had the title of Three Strikes and You’re Out. The law’s passage was triggered by the vicious murder of Polly Klass in 1993. Klass, who was 12 at the time, was snatched from her home, raped and strangled to death by Richard Allan Davis. Davis had a long and violent criminal record.[iii]
“The Legislature and voters passed the Three Strikes law after several high profile murders committed by ex-felons raised concern that violent offenders were being released from prison only to commit new, often serious and violent, crimes in the community.”[iv]
How the Law Works
The California initiative passed in 1994 mandates prison terms of 25-years-to-life for defendants convicted of a third felony.[v]
More than 7,000 California convicts have been struck out and over half of them have been convicted of non-violent crimes.[vi] “We are punishing him for failing to heed the lessons of his prior history,” says Grover Merritt, the California prosecutor leading the fight to keep Andrade in prison.[vii] (see more about Leandro Andrede on the Stories Page) California is the only state where a misdemeanor crime can be made into a third strike.[viii]
Second Strike Offense
The California law also doubles minimum terms for second time offenders.[ix]If a person has one previous serious or violent felony conviction, the sentence for any new felony conviction (not just a serious or violent felony) is twice the term otherwise required under law for the new conviction. Offenders sentenced by the courts under this provision are often referred to as “second strikers.”[x]
Third Strike Offense
If a person has two or more previous serious or violent felony convictions, the sentence for any new felony conviction (not just a serious or violent felony) is life imprisonment with the minimum term being 25 years. Offenders convicted under this provision are frequently referred to as “third strikers.”[xi]
Consecutive Sentencing
The statute requires consecutive, rather than concurrent, sentencing for multiple offenses committed by strikers. For example, an offender convicted of two third strike offenses would receive a minimum term of 50 years (two 25-year terms added together) to life.[xii]
Unlimited Aggregate Term
There is no limit to the number of felonies that can be included in the consecutive sentence.[xiii]
Time Since Prior Conviction Not Considered
The length of time between the prior and new felony conviction does not affect the imposition of the new sentence, so serious and violent felony offenses committed many years before a new offense can be counted as prior strikes.[xiv]
Probation, Suspension, or Diversion Prohibited
Probation may not be granted for the new felony, nor may imposition of the sentence be suspended for any prior offense. The defendant must be committed to state prison and is not eligible for diversion.[xv]
Discretion
Prosecutors can move to dismiss, or “strike,” prior felonies from consideration during sentencing in the “furtherance of justice.”[xvi] On June 20, 1996, the state Supreme Court ruled that the court has the discretion to dismiss prior serious or violent felony convictions under the Three Strikes law.[xvii]The court’s decision that judges have discretion to dismiss prior strikes contributes to a pattern of variation in the application of Three Strikes penalties across counties.[xviii]
Limited “Good Time” Credits
Strikers cannot reduce the time they spend in prison by more than one-fifth (rather than the standard of one-half) by earning credits from work or education activities.[xix]
In 1994 California overwhelmingly passed Proposition 184, the initiative proposed to the voters had the title of Three Strikes and You’re Out. The law’s passage was triggered by the vicious murder of Polly Klass in 1993. Klass, who was 12 at the time, was snatched from her home, raped and strangled to death by Richard Allan Davis. Davis had a long and violent criminal record.[iii]
“The Legislature and voters passed the Three Strikes law after several high profile murders committed by ex-felons raised concern that violent offenders were being released from prison only to commit new, often serious and violent, crimes in the community.”[iv]
How the Law Works
The California initiative passed in 1994 mandates prison terms of 25-years-to-life for defendants convicted of a third felony.[v]
More than 7,000 California convicts have been struck out and over half of them have been convicted of non-violent crimes.[vi] “We are punishing him for failing to heed the lessons of his prior history,” says Grover Merritt, the California prosecutor leading the fight to keep Andrade in prison.[vii] (see more about Leandro Andrede on the Stories Page) California is the only state where a misdemeanor crime can be made into a third strike.[viii]
Second Strike Offense
The California law also doubles minimum terms for second time offenders.[ix]If a person has one previous serious or violent felony conviction, the sentence for any new felony conviction (not just a serious or violent felony) is twice the term otherwise required under law for the new conviction. Offenders sentenced by the courts under this provision are often referred to as “second strikers.”[x]
Third Strike Offense
If a person has two or more previous serious or violent felony convictions, the sentence for any new felony conviction (not just a serious or violent felony) is life imprisonment with the minimum term being 25 years. Offenders convicted under this provision are frequently referred to as “third strikers.”[xi]
Consecutive Sentencing
The statute requires consecutive, rather than concurrent, sentencing for multiple offenses committed by strikers. For example, an offender convicted of two third strike offenses would receive a minimum term of 50 years (two 25-year terms added together) to life.[xii]
Unlimited Aggregate Term
There is no limit to the number of felonies that can be included in the consecutive sentence.[xiii]
Time Since Prior Conviction Not Considered
The length of time between the prior and new felony conviction does not affect the imposition of the new sentence, so serious and violent felony offenses committed many years before a new offense can be counted as prior strikes.[xiv]
Probation, Suspension, or Diversion Prohibited
Probation may not be granted for the new felony, nor may imposition of the sentence be suspended for any prior offense. The defendant must be committed to state prison and is not eligible for diversion.[xv]
Discretion
Prosecutors can move to dismiss, or “strike,” prior felonies from consideration during sentencing in the “furtherance of justice.”[xvi] On June 20, 1996, the state Supreme Court ruled that the court has the discretion to dismiss prior serious or violent felony convictions under the Three Strikes law.[xvii]The court’s decision that judges have discretion to dismiss prior strikes contributes to a pattern of variation in the application of Three Strikes penalties across counties.[xviii]
Limited “Good Time” Credits
Strikers cannot reduce the time they spend in prison by more than one-fifth (rather than the standard of one-half) by earning credits from work or education activities.[xix]
Challenges to the Law
The severity of the law raises legal question about the federal Constitution’s Eighth Amendment protection against cruel and unusual punishment.[xx]
“The eighth amendment to the constitution prohibits cruel and unusual punishment. For at least a century, the Supreme Court has said that grossly disproportionate penalties violate the cruel-and-unusual-punishment clause," says Chemerinsky, a law professor at the University of Southern California. "If any punishment is grossly disproportionate, it's stealing $150 worth of video tapes and getting 50 years to life in prison.”[xxi] (see more about the case of Leandro Andrede on the Stories Page)
In 2003, the U.S. Supreme Court, in a 5-4 decision, upheld the constitutionality of California’s Three Strikes law. The court argued, “Ewing’s sentence is justified by the State’s public safety interest in incapacitating and deterring recidivist felons….” and that “selecting sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.”[xxii]
Other “legal challenges also have argued that Three Strikes violates the “proportionality rule” in sentencing (the idea that “the time should fit the crime”) because a relatively minor crime committed by a repeat offender could result in a much harsher punishment than a violent crime committed by a first-time offender. In addition, the law appeared to grant prosecutorial, or executive, discretion while limiting judicial discretion in sentencing, which raised constitutional questions about separation of powers. As a result of these and other concerns, there have been a number of challenges to various aspects of the law.”[xxiii]
The U.S. Supreme Court ruled in Ewing v. California that it is constitutional to sentence a repeat offender to an indeterminate life sentence for the commission of a nonserious or nonviolent felony.[xxiv]
In People v. Superior Court (Romero), the state Supreme Court ruled that Three Strikes did not eliminate judicial discretion to dismiss prior serious or violent felony convictions.[xxv]
On November 7, 2000, 60.8% of the state's voters supported an amendment to the statute (offered in Proposition 36) that 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.[xxvi]
In November 2004, California voters considered Proposition 66, which aimed to significantly revise the Three Strikes law.[xxvii] Had Proposition 66 passed, it likely would have resulted in reduced future prison incarceration costs of several hundreds of millions of dollars annually.[xxviii]
The Legislative Analysis Office found that “as long as the Three Strikes law is applied generally as it has been since its enactment in 1994, state and local criminal justice systems will continue to be affected in important ways. In particular, the prison inmate population will continue to grow as more second and third strikers are sent to prison. The number of third strikers will increase until at least 2019 when the first third strikers will be eligible for parole hearings. The continued growth, as well as aging, of the striker population is likely to have significant implications for the prison system for the foreseeable future, including increased operating and capital outlay costs.”[xxix]
______________________________________________________________________________________________________________________________
[i] http://en.wikipedia.org/wiki/Three_strikes_law#Successful_amendment
[ii] http://speakout.com/activism/issue_briefs/1290b-1.html
[iii] http://en.wikipedia.org/wiki/Three_strikes_law#Successful_amendment
[iv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[v] http://speakout.com/activism/issue_briefs/1290b-1.html
[vi] http://www.cbsnews.com/stories/2002/10/28/60II/main527248.shtml
[vii] http://www.cbsnews.com/stories/2002/10/28/60II/main527248.shtml
[viii] http://www.cbsnews.com/stories/2002/10/28/60II/main527248.shtml
[ix] http://speakout.com/activism/issue_briefs/1290b-1.html
[x] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xi] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xiii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xiv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xvi] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xvii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xviii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xix] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xx] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxi]http://www.cbsnews.com/stories/2002/10/28/60II/main527248.shtml
[xxii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxiii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxiv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxvi] http://en.wikipedia.org/wiki/Three_strikes_law#Successful_amendment
[xxvii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxviii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxix] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
“The eighth amendment to the constitution prohibits cruel and unusual punishment. For at least a century, the Supreme Court has said that grossly disproportionate penalties violate the cruel-and-unusual-punishment clause," says Chemerinsky, a law professor at the University of Southern California. "If any punishment is grossly disproportionate, it's stealing $150 worth of video tapes and getting 50 years to life in prison.”[xxi] (see more about the case of Leandro Andrede on the Stories Page)
In 2003, the U.S. Supreme Court, in a 5-4 decision, upheld the constitutionality of California’s Three Strikes law. The court argued, “Ewing’s sentence is justified by the State’s public safety interest in incapacitating and deterring recidivist felons….” and that “selecting sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.”[xxii]
Other “legal challenges also have argued that Three Strikes violates the “proportionality rule” in sentencing (the idea that “the time should fit the crime”) because a relatively minor crime committed by a repeat offender could result in a much harsher punishment than a violent crime committed by a first-time offender. In addition, the law appeared to grant prosecutorial, or executive, discretion while limiting judicial discretion in sentencing, which raised constitutional questions about separation of powers. As a result of these and other concerns, there have been a number of challenges to various aspects of the law.”[xxiii]
The U.S. Supreme Court ruled in Ewing v. California that it is constitutional to sentence a repeat offender to an indeterminate life sentence for the commission of a nonserious or nonviolent felony.[xxiv]
In People v. Superior Court (Romero), the state Supreme Court ruled that Three Strikes did not eliminate judicial discretion to dismiss prior serious or violent felony convictions.[xxv]
On November 7, 2000, 60.8% of the state's voters supported an amendment to the statute (offered in Proposition 36) that 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.[xxvi]
In November 2004, California voters considered Proposition 66, which aimed to significantly revise the Three Strikes law.[xxvii] Had Proposition 66 passed, it likely would have resulted in reduced future prison incarceration costs of several hundreds of millions of dollars annually.[xxviii]
The Legislative Analysis Office found that “as long as the Three Strikes law is applied generally as it has been since its enactment in 1994, state and local criminal justice systems will continue to be affected in important ways. In particular, the prison inmate population will continue to grow as more second and third strikers are sent to prison. The number of third strikers will increase until at least 2019 when the first third strikers will be eligible for parole hearings. The continued growth, as well as aging, of the striker population is likely to have significant implications for the prison system for the foreseeable future, including increased operating and capital outlay costs.”[xxix]
______________________________________________________________________________________________________________________________
[i] http://en.wikipedia.org/wiki/Three_strikes_law#Successful_amendment
[ii] http://speakout.com/activism/issue_briefs/1290b-1.html
[iii] http://en.wikipedia.org/wiki/Three_strikes_law#Successful_amendment
[iv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[v] http://speakout.com/activism/issue_briefs/1290b-1.html
[vi] http://www.cbsnews.com/stories/2002/10/28/60II/main527248.shtml
[vii] http://www.cbsnews.com/stories/2002/10/28/60II/main527248.shtml
[viii] http://www.cbsnews.com/stories/2002/10/28/60II/main527248.shtml
[ix] http://speakout.com/activism/issue_briefs/1290b-1.html
[x] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xi] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xiii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xiv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xvi] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xvii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xviii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xix] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xx] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxi]http://www.cbsnews.com/stories/2002/10/28/60II/main527248.shtml
[xxii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxiii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxiv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxv] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxvi] http://en.wikipedia.org/wiki/Three_strikes_law#Successful_amendment
[xxvii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxviii] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
[xxix] http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
