THREE STRIKES LEGISLATION

The three-strike legislation is now in place in 26 states, including Georgia and California, as well as the federal government under which judges sentence offenders with a specific number of prior felony convictions to long prison terms or even life in prison without parole. California guidelines state these severe sanctions may be applicable to felons with two or three prior convictions while Georgia and Florida guidelines state three and four respectively (Clear, 2006, p. 73).

The three-strike law was initially created to increase penalties for second offenses and require life imprisonment without the possibility of parole for third offenses. Consideration of extenuating circumstances is generally not a provision of these laws nor do the laws provide for the consideration of particular circumstances of a crime, the duration of time between crime, and mitigating factors in the offender’s background. The offender’s potential for rehabilitation, ties to the community, employment status, and obligations to children are not influential in the sentencing process (Robinson, 2005, p. 47). Many states passed laws that were intended primarily for violent offenders. California’s three-strike law grew out of crime hysteria or moral panic caused by a publicized violent crime in California, and the idea was promoted by the National Rifle Association (Robinson, 2005, p. 210). Most Americans support three-strike laws as indicated by a Gallup Poll finding that 78% of respondents believed that their local courts did not deal harshly enough with criminals (Robinson, 2005, p. 211).

California leads the nation in the utilization of the three-strike laws. This specific law has also been the most scrutinized at it only requires that two of the offenses be serious felonies, whereas the last strike can be for any crime. This explained why one person was sentenced as a three-strike offender for stealing four chocolate chip cookies from a restaurant (Robinson, 2005, p. 210).

Law makers did not intend or perhaps anticipate many of the consequences of California’s three-strike laws at the time in which they were written and implemented. African-Americans have been targeted the hardest as shown by Los Angeles statistics indicating during the first six months 57% of those charged under the three-strikes law were African-Americas, 17 times the rate of whites (Clear, 2006, p. 73). In California, African-Americans make up 8% of the general population and 21% of arrests but 37% of second-strikers and 44% of third strikers (Robinson, 2005, p. 211).

The application of the three-strike law has had a significant impact on the aging prison population in California. The long term effect will be soaring health costs as defendants are sentenced to long prison stays or life without the possibility of parole (Clear, 2006, p. 73). Between 1986 and 1995, the proportion of the California’s state prison population serving life sentences (lifers) or sentences of twenty year or more increased by nearly half, from 17 to 25 percent; by 2000, there may be more than 50,000 state prison inmates over the age of sixty-five, with correspondingly greater, and more expensive, needs for medical care (Currie, 1998, p. 73). Shelden indicates that under the three-strike law California the bulk of those sentenced have not fit the stereotype of the super-predator and many have been relatively minor offenders. For instance, by March 1999 more individuals had been sentenced for marijuana possession than the combined total for those sentenced for murder, rape, and kidnapping (2001, p. 146). This translates that approximately 52% of third-strikers in California were sentenced for nonviolent or non-serious crimes (Robinson, 2005, p. 211). In light of this unintended consequence, the Supreme Court heard two cases in March 2003 in opposition of California’ s three-strikes law and both cases were upheld in 5 to 4 votes. Both cases were argued in light that the third felonies of each defendant were minor and their long sentences were unconstitutional ‘cruel and unusual’ punishment. Leondro Andrade’s third felony was for stealing two video tapes and he was sentenced to 50 years without the possibility of parole. In the second case, Gary Ewing stole golf clubs and was sentenced to 25 years to life in prison. The five to four vote represented justices in the majority stating the California law reflected legislative judgment and the court should not second guess this policy, and was opposed by the four justices arguing there was a ‘gross’ disparity between the pettiness of the crime and the severity of the sentence (Clear, 2006, p. 73).

Although the three-strike legislation began with good intentions it has successfully clogged the court systems as defendants are less likely to plea bargain if they already have two felonies. One of the unforeseen results has been an increase in the amount of defendants going to trial. As a result, an already overburdened criminal justice system is faced with a growing number of nonviolent criminal facing their third strike in court. Previously, close to 90% of similar cases were handled with plea bargains, saving the expense and time of a trial (Roth, 2005, p. 311).

The popular baseball phrase ‘three-strikes and you’re out’ as it applies to the criminal justice was designed as the ultimate get tough stance and showed very little regard for the consequences. The consequences, however, have primarily been unintended. Theoretically, this piece of legislation was supposed to ‘get tough’ on the toughest criminals, mostly repeat, serious, especially violent offenders. Unfortunately, these desired outcomes were based on the erroneous assumption that the criminal justice system was too lenient on criminals and also on a few celebrated cases, such as the kidnapping and murder of Polly Klass (Shelden, 2001, p. 146).

The disproportionate representation of African-Americans affected by the three-strike law is mirrored by their disproportionate representation in prison in general. The disparity in the percentage of African Americans in the free world population as compared to the percentage of African Americans in the prison population has presented a challenge to the criminal justice world for many years. The determination of what drives this disparity is necessary in order to prevent gross misrepresentations in the three-strike law enforcement. The continuation of this disparity is not acceptable and legislatures will need to revisit the legislation, review research and seek the input of criminal justice professionals in an attempt to halt this injustice.

The aging prison population presents special challenges for the corrections system as their medical and housing needs require additional funding in order to meet their increasing physical and mental demands. Often geriatric patients in prisons require staff with additional, more specialized training as well facilities in which they are able to maneuver according to the ability. The three-strikes law sentences defendants to longer, more extreme sentences resulting in an increase in the aging population in prisons. Consideration by legislatures should be given to the care needed in order to sufficiently meet the needs of the aging prison population.

There are many cases in which defendants have fallen under the jurisdiction of the three-strike laws, especially in California, and the devastating result has been an extremely long sentence for a nonviolent, minor offense such as stealing chocolate chip cookies. The strict sentencing guidelines of the three-strikes legislation does not provide for judges to consider the nature of the final felony nor the extenuating circumstances, but rather provide that the judge must adhere to the three-strikes law. This is definitely a place for revision by the legislature in that individuals can not be pigeon-holed into generalized categories and circumstances. By allowing prosecutors and judges to consider the nature of the crime and the circumstances under which the crime was committed several unintentional consequences could be alleviated or at least revised, such as the overcrowding of the jails and prisons as well as the flooding of court dockets by cases remanded to trial due to the fact that second convicted felons refuse to plead guilty.

Initially the three-strike legislation sounds impressive as it strives to remove the hardened criminals from the streets. However, research has shown that this has not been the outcome and that there has been virtually no effect on crime and serious offenders generally have not been locked up due to the three-strikes laws (Sheldon, 2001, 146). Legislatures should review the legislation, the desired effects, and the actual effects and determine if the legislation is worthy of staying on the books.


References

Clear, Todd R., George F. Cole, and Michael D. Reisig (2006). American corrections,

7th edition. Belmont, CA: Thomson-Wadsworth.

Currie, Elliott (1998), Crime and Punishment in America, New York: Henry Holt Co.

Robinson, Matthew B. (2005). Justice Blind? Ideals and realities of American

Criminal Justice; Upper Saddle Hill, NJ: Pearson-Prentice Hall.

Roth, Mitchel P. (2005). Crime and Punishment: A History of the Criminal Justice

System. Belmont, CA: Thomson-Wadsworth.

Shelden, Randall G. (2001). Controlling the dangerous classes: a Critical Introduction
to the History of Criminal Justice. Boston: Allyn and Bacon.

              - Melissa Harrell, MSCJ, BSCJ

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