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Three-Strikes and You’re Out

April 16th, 2010 Leave a comment Go to comments

This paper will discuss the literature that examines the relationship between the “Three Strikes and You’re Out” law and its impact on the criminal justice system in California. The three strikes law was passed as a “get tough” response on crime, and its goal was to serve as a deterrent and to reduce violent crime by incarcerating repeat offenders for the rest of their lives. Repeat offenders are thought to be responsible for a majority of crimes. The most thorough study of recidivism, done in 1986 by the National Research Council, produced the estimate that “active violent offenders” probably commit two to four violent crimes a year, while “active nonviolent offenders” were responsible for five to 10 property crimes a year.

While other states have adopted the same or a similar policy, California was selected for this review because it is one of the first states to enact the policy, it has the broadest three strikes measure in the country, there are a greater number of offenders convicted under this law than in any other state, and the laws’ implementation in that state has caused the most debate. Being debated are many issues, and many questions have been raised. In this paper, the beginnings of the law with a description of the policy will be given in the introduction, and the following questions will be studied:
· Are the three strikes laws contributing to prison overcrowding?
· Are these laws targeting non-violent offenders?
· Do these laws serve as a deterrent?

Following a discussion of the literature addressing the above questions, the implications of the findings will be discussed.

It was hoped that California’s “Three Strikes and You’re Out” law would deter the habitual, violent criminals from committing further crimes by mandating harsher penalties including a 25-year-to-life prison sentence for some offenders. Signed into law in March 1994 in the wake of public fury over the case of Polly Klaas, a 12-year-old who was abducted from her home and killed in 1993 by a career criminal, the law was designed to target criminals with one or two serious or violent felony convictions on their records. These crimes, a particular list of offenses that count as “strikes,” include residential burglary, murder, attempted murder, rape, robbery and arson.

An offender who already had one strike on his or her record would face double the minimum prison term once convicted of any new felony – not just those defined as strikes. In addition, the offender would have to complete 85 percent of the sentence before release from prison. An offender with two existing strikes on his or her record would be sentenced to 25-years-to-life when convicted of any third felony — this third felony could be any felony offense including theft.

Some politicians have hailed the three-strikes laws as the ultimate get-tough-on-crime policy while other criticize it, saying that the laws have shown no measurable effect on the reduction of crime. The state of Washington was the first to adopt a three-strikes policy in 1993, California in 1994, and since then, 22 other states have followed suit. Other states considering similar legislation may want to consider the information discussed here.

In 1996, state and federal courts, for the first time, convicted a combined total of more than 1 million adults of felonies. The fastest growing group in California’s prisons is those who have received severe sentences under the three-strikes law. At last count, nearly 50,000 criminals have received severe sentences under the statute. Some have said that the increase in prison population is due to an increase in the general population, but Pontell and his associates showed that there is little correlation between the rising general population and the extent of crime. For example, Pontell showed that, in one California county, the general population increased by about 80 percent, but the jail population went from 10.2 to 12.8 per 10,000 people. In another county, the general population grew by about 20 percent while the jail grew by 91 percent. Pontell et al. also noted that it appeared the get-tough attitudes that triggered mandatory sentences and increases in sentence length are the most significant factors in understanding the increase of prison detainees.

Before the 1994 law, prisons were experiencing over-crowding, but in 1995, the prison population set a record increase: 90,000 new prison inmates, or 1725 new beds per week.

As a result of the three-strikes laws, prosecutors have enormous–some say too much–new power. Now they can lock away not just violent criminals for a long time, which they are doing more than ever through the law, but also felons whose second or third offenses would otherwise have kept them in prison for only a few years, if at all. In fact, state statistics show that most of the time when felons in California get punished with lengthy imprisonment for second or third strikes, it’s for committing nonviolent property or drug crimes.

A goal of the three strikes law was that it would guarantee long-term sentences for habitual offenders, but it has turned into a plea-bargaining tool. A Press-Telegram report conducted by Wendy Thomas Russell showed that nearly 80 percent of the 956 three-strikes cases filed in Long Beach from 1994 to 1999 did not result in the law’s “mandatory minimum.” Specifically about 700 of these cases drew terms of less than 10 years – half of those less than five years.

To illustrate the power given to prosecutors consider the following quote by Los Angeles District Attorney Gil Garcetti that appeared in the Los Angeles Times: “If we can get a gang member who stole a CD, and we know he is guilty of other crimes… I’m going to use that three-strike law to put that guy away for the rest of his life”.

As written, the three strikes law is a rigid sentencing formula that reduces judicial discretion and is not to consider prior record in sentencing. But as District Attorney Garcetti said, prosecutors can use the three strikes rule as they see fit. In the case of Vernon Bowens of Long Beach, the power of the prosecutor can be seen. As an adult, Bowens had been charged with robbery before being picked up for possession of less than a half gram of cocaine. Prosecutors threatened to use his juvenile record to get a third strike on him, so Bowens agreed to a six and one-half year sentence. Typically his crime nets no more than a three year prison term.

California state statistics show that most of the time when felons get punished with lengthy imprisonment for second or third strikes, it is for committing nonviolent property or drug crimes. Criminals have received a third strike for shoplifting a carton of cigarettes or stealing a pizza. All received minimum 25-year prison sentences because of their records. At times, third-strike crimes have been committed years after a felon’s last offense. In one instance in Los Angeles, a homeless man who broke into a church in search of food received a third-strike sentence even though his last offense, a robbery, took place a decade earlier and he also knew the church’s pastor. There is the case of a mildly mentally retarded man who broke into his neighbors’ house to take a VCR as collateral because the neighbors owed him money. The man called the neighbors and told them he had the VCR, but was arrested and is being housed in Folsom Prison for 26-to-life at a total cost of about $500,000 if he is paroled in 2015. In March of 1999, the Supreme Court refused to hear a case in which a man accused of stealing a bottle of vitamins challenged the three-strikes rule.

The cases mentioned above are giving momentum to campaigns either to exempt nonviolent offenses from the law or to make the third-strike penalties for them less punitive. California has handed out more than 5000 life sentences since 1994 to those who have fallen under the three strikes criteria, and half of these offenders are in for nonviolent offenses. Furthermore, under this law, more than twice as many people were imprisoned for drug possession and petty theft as were those for murder, rape, and kidnapping combined.

Still in the campaign spirit, Steve Cooley, who defeated incumbent Gil Garcetti in their bid for Los Angeles District Attorney, announced shortly after his election that one of his top priorities was to make the much-needed changes to the three strikes policy. Under Cooley’s proposed policy, most nonviolent, nonserious third felonies will be handled as second-strike cases, meaning prosecutors could remove strikes. Only the more serious and violent crimes would be pursued as third-strike cases.

Cooley further stated that prosecutors must let the defense know ahead of time whether or not they are pursuing a third strike, and deputy district attorneys will not be allowed to use the third strike as a threat to coerce guilty pleas. In the past, defendants have been coerced into pleading guilty to crimes out of fear that if they lost at trial they could be sentenced to 25 years because of the three-strikes law.

Recently, the Los Angeles D.A.’s office under Cooley has come under fire for pursuing the 25-year penalty in the case of one defendant who received two bottles of stolen ArmorAll auto body treatment and another defendant charged with possessing a tenth of a gram of cocaine. The D.A.’s office responded by stating the entire past record of the defendant was considered when making the decision whether or not to “strike the strike”.

A major goal behind the three-strikes law was that it would reduce crime. The theory of deterrence says that increasing the penalty on an activity will mean fewer people will perform it. Experts disagree on the effect the law has had on crime. Because there was a pre-existing downward trend in crime levels when the three-strikes law was enacted, it is thought that observed drops in certain crime rates could not be attributed to the success of the law.

In the case of the city of Los Angeles, however, violent crime rose sharply in 2000, up nearly 10 percent over 1999. The biggest jump was in homicides a 27.6 percent increase to 545 in one year, with most of the increase involving gang victims in South and Central Los Angeles, even though, at least in the first half of the year, much of the rest of the state experienced only small increases or even decreases in murders.

A 1999 study in the Stanford Law and policy Review did not find any evidence that the three strikes law reduced crime in California. The study compared the 12 largest California counties that vigorously enforced the law and found that there was no decline in any crime category relative to those counties thought to be more lenient. Additionally, the data in the study showed that some counties were using the law at three to twelve times more than those counties, which are using it more sparingly. San Francisco County, one of the more lenient counties, actually showed a greater reduction in violent crime, homicides, and all index crime than the six most heavily enforced counties.

Also predicted to be an outcome of the law was that the over-30 age group would be responsible for a part of the anticipated reduction, but in fact, the over-30 group was the only group to display increased violent crime and total felony arrests during the post “three strikes period.”

In this paper, we addressed prison over-crowding, the targeting of non-violent offenders, and the argument about deterrence. With the information available, it appears that the three strikes rule in California is contributing in part to the state’s over-capacity prison problem. Non-violent offenders have a huge role in the debate over the success of the policy, and because violent crime rate has either increased or only shown a very slight decrease, the law does not appear to act as a deterrent. If, as study after study has shown, a small percentage of people are committing a large proportion of the violent crimes, then they are the ones who should be targeted.

Clearly California must revamp this law and find some uniformity to allow it to work as it has in other states. The other states that found success in a similar program were not mentioned in this article, because the number of people convicted of third strike offenses was so low [Washington D.C had convicted three serious repeat offenders in a nine month period that it did not seem relevant to this discussion.

The interest of crime policies is to ensure public safety. Clearly, the three strikes law has good intentions, but some of those who are being put away for life are not a threat to society and need help. Many offenders are dealing with substance abuse problems that create lingering consequences.
Chief Judge Judith Kaye of New York said that approximately 75 percent of all defendants test positive for drugs at the time of their arrest. In California, it is believed that 80 percent of the convicted drug felons, or roughly 36,000 people, will be eligible for drug treatment under the new drug treatment plan. The implementation of drug courts may help to relieve the number of people being tried under the three strikes laws. It may also help relieve tax payers of the tremendous burden put upon us to continue building new prisons to house the ever-increasing number of prisoners. The fact that our prisons are jammed with non-violent, drug abusers is disturbing. A 1998 Columbia University study showed that the cost of housing one prisoner for one year averages between $25-30,000, or four times the amount for drug treatment.

As far as being a deterrent for violent criminals, it cannot be assumed that a person about to commit an act of violence will consider the law at all. In fact, it is ridiculous to think any law is a deterrent for habitual offenders. Also, this type of law would not have been needed had the truly violent offenders received long sentences to begin with. A life sentence for a three-time rapist would probably be acceptable to most Americans, but a life sentence for a three-time burglar? I’m not so sure.

Another area of concern is the fact that prosecutors in different counties are using the law differently to carry out their own agendas and to pacify the public. A law of this nature should not reflect public sentiment or be used for political fodder. When prosecutors use their own discretion to make decisions to issue a third strike using the offender’s prior record, they may not be getting the whole picture. With charges being reduced, dropped, or enhanced all the time, it’s difficult to distinguish the degree of risk of a particular offender.

With individual discretion being used to prosecute individuals comes the chance of prejudices, biases, and racism. The law should guide judicial discretion rather than abolish the rule altogether. If less people are heading to prison, the cost reduction could be used for community-based sentencing options like house arrest, drug treatment, or just intense supervision.

If the three strikes law was reserved specifically for those habitual offenders committing serious violent crimes, it would achieve its goal of securing public safety. As long as it targets others, the public is not safe.

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