Public concern over offenders with prior convictions committing new crimes resulted in the U.S. federal government and 25 states passing reforms during the 1990s that reduced judicial discretion at sentencing and enhanced the sentences of recidivist offenders who committed new crimes. Designed to deter offenders with prior records from committing new crimes and incapacitating them if they did, these reforms became known as three strikes laws because, in the parlance of baseball, with a third strike (conviction) an offender was out (received life imprisonment).
Three strikes laws are based in habitual offender statutes that many states already used to enhance the sentences of recidivists convicted of new crimes. First appearing in New York in the 1700s, habitual offender laws generally mandate significant enhancements—including life in prison without parole—to the sentences of those with prior offenses convicted of new crimes. The laws became so popular that by the 1940s, 49 states and the federal government had habitual offender statutes in place that allowed for sentence enhancements for recidivist offenders convicted of new crimes. This article reviews the emergence and implementation of three strikes laws and then discusses the criticisms and proposed reforms of these laws.
Getting Tough on Crime
During the 1970s and 1980s, critics from both the political left and the political right attacked sentencing and correctional policies in the United States as being ineffective at addressing offender recidivism. Some critics argued that punishment was the appropriate response to these offenders, fueled in part by the apparent failure of rehabilitation to effectively reduce crime.
The drive to punish recidivist offenders through sentencing enhancements originated in the nothing works movement of the 1970s. Critics of rehabilitation pointed to the work of Robert Martinson and his colleagues on the effectiveness of rehabilitation programs to argue that rehabilitation had failed and a new orientation in sentencing that stressed deterrence and incapacitation was needed. This new orientation could be realized though tougher penal sanctions for not only recidivist offenders but also first-time offenders. In their critique of existing policy, reformers argued that to fight crime, the conditions of incarceration had to become more austere and sentencing policy needed to be tailored less to the needs of offenders and more toward protecting society from them. The nothing works movement, in particular, targeted the discretion that judges exercised when sentencing offenders. Critics contended that judges enjoyed too much discretion at sentencing and as a result were coddling criminals by trying to individualize their sentences to fit offender needs. To address the problem of sentencing discretion, policy would have to change from an orientation that stressed indeterminacy to one emphasizing determinacy and would include presumptive sentences, a narrowing of the range of time to which an offender could be sentenced to serve, and abolition of the opportunity for early release from prison (i.e., parole).
Collectively, these criticisms resulted in a get tough movement over the next 40 years that altered both sentencing and penal policy in the United States. Many new prisons were built and the mass incarceration of millions of Americans occurred to the point where, by 2008, one of every 100 adults in the United States was under some form of penal supervision: in jail or prison or on probation or parole. In fact, until recently, public sentiment supported a correctional philosophy that stressed deterrence and incapacitation, especially for offenders with prior records who committed new crimes.
The “Three Strikes and You’re Out” Movement
During the 1990s, public pressure on legislators in both the states and Congress to do something about recidivist offenders committing new crimes grew. In response, between 1993 and 1996, a total of 25 states and the federal government passed laws calling for enhanced terms of incarceration for recidivist offenders. In many instances, these enhancements were mandatory; as a result, judicial discretion was either reduced or removed entirely from the sentencing process, and instead, judges use sentencing guidelines to determine appropriate punishment.
Proponents of enhanced sentences for recidivists argued that research provided the justification for treating them as special cases worthy of enhanced sentences. These individuals were the worst of the worst offenders—they had many prior convictions and had managed to escape punishment due to lax sentencing policies in place at the time. Enhanced sentences for recidivists committing new crimes would serve to deter others from reoffending and incapacitate those who did. High-rate offenders would thus be singled out and receive significant enhancements to their sentences upon being convicted of a new crime. By making these enhancements mandatory and thereby eliminating judicial discretion, these laws aimed to increase the certainty that recidivist offenders actually received the punishment they deserved. Thus, both the severity and the certainty of punishment, two key aspects of deterrence, would be enhanced under these new laws. Proponents thus argued that by enhancing recidivists’ sentences, removing judicial discretion for imposing them, ensuring these offenders served their entire sentence in prison, and excluding them from both parole and good-time considerations, crime would finally be reduced.
Implementing Three Strikes Laws
Singling out recidivist offenders for enhancement punishment became a reality in 1993 when Washington became the first state to enact a three strikes law through a statewide initiative that became the Persistent Offenders Accountability Act (RCW 9.94A.392) The legislation stipulated that recidivists who were convicted a third time for certain offenses would receive a mandatory sentence of life in prison without possibility of parole. Furthermore, offenders sentenced under the act would be ineligible for furloughs or good-time reductions to their sentences. The only way an offender could be spared the life-without-parole sentence would be through a pardon granted by the governor. Planners at the time expected that 40–75 offenders would be eligible annually for enhancement to their sentences under the new law.
A year later, California followed suit when Proposition 184 passed and called for even tougher enhanced sentences for recidivists than those that had been adopted in Washington. Proposition 184 actually proposed a two strikes rule: An offender with two prior felony convictions convicted of a third felony would face double the sentence he or she would have received without the prior convictions. In addition, Proposition 184 called for offenders who had three prior felony convictions and were convicted of a new felony to receive a mandatory sentence of life in prison. Proposition 184 subsequently became the model for three strikes legislation that eventually passed in other states and the federal government.
The Rising Tide of Criticism
Criticism of three strikes initiatives arose almost immediately, particularly with the California model. Assessments of the impact of the three strikes laws appeared in both scholarly and popular press outlets and fostered a lively debate over the direction of sentencing policy both generally and with recidivist offenders specifically. Stories relating to how three strikes laws were being applied appeared in newspapers along with editorials and op-ed pieces—both for and against the laws—over the next several years. Investigative journalists added fuel to the fire when they uncovered instances where it appeared that inappropriate sentences were being given to recidivist offenders under the California law.
Critics of the laws also argued the statutes were unfair because, by reducing or eliminating the discretion of judges and prosecutors, mitigating factors such as an offender’s remorse or the potential for an offender’s rehabilitation were removed from consideration at sentencing. Other critics pointed out that due to variation in both the number and type of offenders targeted by these statutes, low-level offenders could face extended terms of incarceration with no hope of parole or even good-time reduction in their sentences. Critics argued that these cases violated the spirit of the statutes; they were designed to target the worst of the worst offenders including career robbers or burglars.
Critics also pointed to possible prison overcrowding that could result from widespread use of three strikes laws. Enhanced sentences combined with loss of parole or good-time reductions would create additional strains on an already overburdened correctional system and lead to the diversion of scarce state resources to address those burdens. Finally, some academic researchers published articles in peer-reviewed journals that argued not only did three strikes laws not reduce serious crimes such as murder and robbery, but the empirical evidence showed that states adopting these laws actually experienced increases in serious crime.
Reforming and Repealing Three Strikes Laws
State legislatures have been revisiting three strikes statutes in recent years with an eye toward revising or, in some instances, repealing them. In 2012, for example, Californians passed a statewide initiative, Proposition 36, which was subsequently codified as the Three Strikes Reform Act. Proposition 36 eliminated life sentences for nonviolent, less serious crimes perpetrated by recidivists and established a process by which inmates previously sentenced to life in prison under the state’s three strikes law could petition the courts to have their sentences reviewed. As a result of this change, some 3,000 offenders sentenced to life in prison under the old sentencing scheme became eligible to have their sentences reviewed. Some observers argued that the change created by Proposition 36 would save California between US$150 and US$200 million annually in correctional costs. Successful efforts to reform or repeal three strikes laws have occurred in several states, including Alabama, Colorado, Indiana, Georgia, Mississippi, New Mexico, South Carolina, and Washington.
At the federal level, a Supreme Court ruling in the 2015 case of Johnson v. United States effectively voided the Armed Career Criminal Act, a 1984 law that mandated a term of 15 years to life in prison for firearms possession by people with either three prior convictions for serious drug offenses or violent felonies. The majority opinion in that case found the component of the law that lengthened sentences as vague, and the discretion accorded prosecutors and judges to determine what counted as a violent felony as a violation of the Fifth Amendment to the U.S. Constitution.
Final Thoughts
Three strikes laws illustrate ongoing policy efforts to address crimes perpetrated by previously convicted offenders and are designed to both deter offenders with prior records who contemplate new crimes and incapacitate those who carry out those plans. Three strikes statutes also reduced or eliminated judicial discretion at sentencing by mandating enhanced sentences—including life in prison—for offenders with prior felony convictions who were convicted of a new felony. Three strikes statutes also enjoyed public support as one solution to the problem of stopping recidivist offenders from continuing to engage in criminal behavior.
Three strikes statutes have not been without critics including civil libertarians, criminologists, legal scholars, and policy analysts. Critics have raised issues with the fairness of three strikes enhancements, with the alleged crime-reducing capabilities of the statutes, and with potential Constitutional issues they raise involving the Fifth and Eighth Amendments to the U.S. Constitution. Critics also point to empirical evidence showing that three strikes laws directly contribute to the mass incarceration crisis plaguing the United States and that these laws channel valued state resources from other areas such as health and education to corrections.
With successful efforts in multiple states to either revise or repeal three strikes laws, in 2018 both conservatives and liberals appear to be at the point of agreeing that three strikes laws are an example of a failed criminal justice policy in need of significant revision.
References:
- Clark, J., Austin, J., & Henry, D. (1997). Three strikes and you’re out: A review of state legislation (National Institute of Justice Research in Brief). Washington, DC: U.S. Department of Justice. Retrieved from https://ncjrs.gov/pdffiles/165369.pdf
- Johnson v. United States 576 U.S. (2015).
- Kovandizic, T., Sloan, J., & Vieraitis, L. (2004). Striking out as crime reduction policy: The impact of “three strikes laws” on crime rates in U.S. cities. Justice Quarterly, 21, 207–239. doi:10.1080/07418820400095791
- Public Safety Performance Project. (2008). 1 in 100: Behind bars in America. Philadelphia, PA: The Pew Charitable Trusts. Retrieved from http://www.pew trusts.org/~/media/legacy/uploadedfiles/wwwpewtrusts org/reports/sentencing_and_corrections/onein100pdf.pdf
- Tonry, M. (2013). Sentencing fragments: Penal reform in America, 1975–2025. New York, NY: Oxford University Press.