Prof. Peter Read
Sociology W3222 – Criminology
March 29, 1999
In the last five years, the federal government and nearly half of the states have adopted laws that dramatically increase punishments for repeat offenders. These laws, often referred to as “three strikes” laws, are designed to keep violent or serious felons in prison longer. By far the most substantial effect of a three strikes law has been in California, the largest criminal jurisdiction in the country. The three strikes law in California has been the subject of tremendous criticism and controversy ever since it passed in 1994. Criminologists, prosecutors, judges, and many others have attacked the law as unjust, ineffective, and extraordinarily expensive, yet it still remains incredibly popular.
Three strikes laws are recidivist laws, which means they provide for increased penalties for repeat offenders. The sentence for a repeat offense sometimes exceeds what might seem appropriate or fitting for the crime, perhaps even to the level of what might appear cruel and unusual. In Rummel vs. Estelle, however, the U.S. Supreme Court ruled that harsh recidivist laws are not unconstitutional. (Rummel had committed three very minor acts of check fraud, e.g. intentionally bouncing small checks, for a total amount of less than $250. Under its recidivist law, Texas sentenced him to 99 years in prison for the third offense. He challenged the sentence as cruel and unusual, but the U.S. Supreme Court upheld his sentence.) This decision led the way to harsher sentences for repeat offenders, a trend that is apparent in sex offenses, drunk driving, and other politically unpopular crimes (Moran).
Some people consider recidivist laws unjust, especially when the laws are particularly harsh. In 1764, classical theorist Cesare Beccaria helped usher in the Age of Enlightenment with his landmark book On Crimes And Punishment, which put forth the principle that the punishment should fit the crime. Justice must be measured, rational and proportionate, and the more serious a crime is, the more severely it must be punished (Reid 75, Charney). However, many people feel that other factors besides the severity of the current crime should be taken into consideration, and that criminals with prior records should be given harsher sentences. Others criticize California’s three strikes law because not all three crimes need to be serious felonies. But Rummel vs. Estelle upholds that none of the crimes need to be serious in order to warrant a harsh sentence (Moran).
One of the incentives behind enacting three strikes laws is to institute consistent, minimum sentences. In order to prevent judges or juries from being too merciful with a particular defendant, the three strikes law require long minimum sentences. Some criminologists have labeled this strategy as “locking him up and throwing away the key,” but it is what the voters overwhelmingly want. These criminologists say that the voters’ attitudes “suggest that we are imprisoned in a climate of intolerance and rigidity when it comes to criminality” (Morris). One reason for this “climate of intolerance and rigidity” is people’s increasing fear of crime and their frustration with the government not doing enough to protect them from violent criminals (Moran). Mandatory minimum sentences take control away from the particular court, which historically might be too sensitive to whites, or women, or criminals in general. This is consistent with Beccaria’s classical view that only the legislature should be allowed to specify punishment, and that judges should only be allowed to determine innocence or guilt, not the sentence (Reid 76). Modern voters apparently have come to believe that the criminal justice system is too lenient with violent felons.
“Beginning in 1993, twenty three states and the federal government adopted some form of ‘three strikes and you’re out’ law intending to target repeat violent offenders. Washington state was the first to do so; California soon followed with a considerably broader version of the law. Although subsequently adopted versions of three strikes law vary among the states, the laws generally reduce judicial discretion by mandating severe prison sentences for third (and in some instances first and second) felony convictions.” The application of the laws have been very uneven, but have had “significant impact on costs, prison admissions, and the overall functioning of the justice system, [especially] in California” (Public Policy Report 1 [hereafter “Report”]).
Fortunately, the three strikes laws in most states and the federal government were drafted in such a narrow manner that “their use has been limited and their disruptive impact minimized.” Fifteen states have sentenced less than six people in the 4-6 years since their laws were enacted. The impact on California has been tremendous, however, and more than 40,000 people have been sentenced under the new law. (The only other state with even noteworthy effects is Georgia, which has sentenced less than 2,000 people under its even more draconian laws, which allow for life-without-parole sentences on a second strike.) (Report 2-4)
California’s three strikes law was enacted by the Legislature in March 1994 in response to the enormous voter enthusiasm for the upcoming Proposition 184. The law they enacted is identical to the one proposed in Prop 184 because it was already obvious that the proposition would pass overwhelmingly on November 8. The law states that it is enacted “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” Prop 184 requires that the minimum sentence be doubled for a defendant charged with any felony who already has one prior violent or serious felony conviction. The minimum sentence must be tripled or set to 25 years to life, whichever is greater, for a defendant who already has two prior violent or serious felony convictions (Ballot 64-65). ‘Violent’ felonies “include murder, robbery of a residence with a deadly or dangerous weapon, and rape and other sex offenses.” ‘Serious’ felonies “include all violent felonies but also include other offenses such as burglary of a residence and assault with intent to commit a robbery or rape.” There is no limit on the amount of time between the convictions, and convictions of minors at least 16 years old do count as previous convictions. While non-three-strikes defendants typically serve only about half of their sentence, Prop 184 eliminates good-time-in-prison credit for second- or third-strikers, requiring that at least 80% of their sentence be served. Also, second- and third-strikers must be sentenced to prison rather than an alternative program such as for drug treatment (Ballot 33). In 1994, the state controller estimated that the law would result in 270,000 more inmates to the state’s prison population. The Department of Corrections estimated that over the following 32 years it would need to spend $20 billion to construct new prisons and that the annual prison operating costs would increase by $6 billion. (Ballot 34).
This proposition was initiated in the aftermath of the murders of Polly Klaas and Kimber Reynolds, both of whom were killed by assailants with prior violent felonies. Polly Klaas was a 12-year-old girl who was kidnapped from a slumber party and murdered while her parents slept in the next room. Kimber Reynolds was an 18 year old girl who was shot in the head after she struggled with a purse snatcher. These horrific murders outraged Californians and fueled their fear of being killed by ex-convicts. (These same fears result in large protests whenever a sex offender is paroled.) Kimber Reynolds’s father, Mike Reynolds, was a primary author and instigator of the three strikes proposition. Proponents of the proposition argued that it would save taxpayers $23 billion over five years by eliminating “the outrageous costs of running career criminals through the judicial system’s revolving door over and over again.” They further argued that “every repeat felon returned to the streets costs nearly $200,000 annually in direct losses to victims” (Ballot 36).
Opponents refuted that it would save money, and instead argued that it was both unjust and prohibitively expensive. They stated in the 1994 ballot that “even the Polly Klaas family opposes Proposition 184 because it treats non-violent crimes the same as murder, rape or armed robbery” (Ballot 37). As an extreme prediction, they proposed that “a 50-year-old man who twice stole a bicycle from a garage as a teenager, and who now writes a bad check, will get a life sentence under Proposition 184” (Ballot, 37). This was a hypothetical example at the time of the election, but in the past five years people have been sentenced for situations almost as extreme.
For example, one of the first people sentenced under the law was 27-year-old Jerry Dewayne Williams, a Compton warehouseman who had prior robbery and drug possession convictions. He was sentenced to 25 years to life for sealing a slice of pepperoni pizza from kids on a beach. This is possible because other recidivism laws allow a misdemeanor petty theft to be charged as a felony if the defendant has prior thefts, misdemeanor or felony (Tanenbaum). Many others have received 25 years to life sentences for possession of small amounts of drugs or for shoplifting small items such as a $10 bottle of body wash (Moran).
On the fifth anniversary of the law’s passing, a hundred protesters marched through Los Angeles chanting “Life is not a baseball game, three strikes is a damn shame” (Olivio). Opponents of the law point out that less than 1% of second- and third-strikes sentences have been for murder, and more than two-thirds of the sentences have been for property crimes like theft and drug offenses (Olivio).
Having been in effect for six years, the results of the law in California have now been studied by criminologists and research groups. They’ve found that the law has had substantial economic costs in three major areas. First, the state must spend much more in case processing and trials because defendants facing three-strike terms are far more likely to go to trial rather than plea bargain. Second, the state has to build many new prisons to accommodate the 70,000 beds they expect to be short of by 2006. Already more than 1/4th of California inmates are serving second- or third-strike convictions. Finally, the increased sentence lengths have long-term costs because older, geriatric prisoners cost almost three times more than younger ones. (Report 2).
These studies have also concluded that the law has had little effect in deterring or reducing crime because there is little evidence that the three strikes law has had any effect on falling crime rates. The crime rate in California has fallen substantially in the past five years, but that trend had already begun before the three strikes law was passed and the crime rate has dropped as much or more in states without a three strikes law. Before California’s three strikes law, serious repeat felons already faced very stiff sentences because of earlier recidivism laws. “The chief impact of the law has been to imprison less serious offenders to longer prison terms just as they are aging out of their crime prone years. Research shows that the money spent on the additional prisons required to house them would prevent far more crimes if it were invested in prevention programs. Nonetheless, many politicians still credit three strikes as a major contributor to the decline of crime rates in California” (Report 2, Krikorian).
A 1997 comprehensive statistical analysis by criminologists Lisa Stolzenberg and Steward D’Alessio found that in nine of the state’s ten largest cities, there is no evidence that the three strikes law reduced the rate for either violent crime or petty theft below a level that preexisting downward trends were already approaching. Stolzenberg and D’Alessio suggest that since the new law does not raise the severity of potential punishment for violent repeat felons significantly, it probably has not had a greater deterrent effect than the old laws. (Report 11, Harris 10/29/97).
An important issue in the three strikes debate is the criminals’ age, since criminologists say that the most crime prone years are ages 18-24. “The peak age for violent offending is 18, and repeat offenders’ criminal careers generally decline rapidly after age 30. However, the average age of all offenders admitted to prison is 31, suggesting that any incapacitation effects on crime rates may be small” (Report 11).
Most criminologists agree that three strikes laws are ineffective as deterrents. “The threat of punishment has little impact on criminal behavior because most criminals correctly believe they will not be caught, they have little knowledge of what sentencing laws would apply to them, or they commit crimes while intoxicated, angry, or high and thus are not rationally analyzing the consequences of their behavior” (Report 12). On the other hand, some prisoner interviews have suggested that criminals are surprisingly sophisticated about the law and its consequences and take precautions to avoid stiffer sentences (Moran). Even if longer sentences do not deter crime through the threat of punishment, they definitely deter crime by incapacitation. A 1994 RAND Corporation study estimated that the “incapacitative effects of the longer sentences would reduce felonies committed by adults in California between 22 and 34 percent … at a cost of $16,000 per crime prevented.” The study went on to suggest that more prevention could be purchased at a much lower price either through parent training or graduation incentives (Report 12). The majority of the voters might be cynical about the chances that such propositions would be effective.
The most controversial aspect with the three strikes law in California is that the current crime being tried does not have to be serious or violent. The third strike can be any one of California’s 200 enumerated felonies, or even a repeated misdemeanor. One of the most often charged crimes, “possession of cocaine, consists of behavior that by legal definition does not even involve immoral conduct (moral turpitude). Yet this same crime can trigger lifetime incarceration as a third strike” (Charney). Indeed, the third strike can be a felony simply because it is a misdemeanor like shoplifting with a similar prior conviction. “Among the 36,000 second-strikers, less than one-fourth were admitted to prison for a violent offense” (Report 3). “Regrettably, the [three strikes] law failed to specify who would qualify for [its] Draconian punishment, leaving the door open for nonviolent petty thieves in addition to hardened, violent criminals… Common sense [tells us] that we should demand justice on a case-by-case basic” (Tanenbaum). Proponents defend the current law with the logic that anyone who has already been convicted of a serious or violent felony should have no remaining “chances” and had better not even spit on the sidewalk.
Even L.A. District Attorney Gil Garcetti, one of the most hard-line enforcers of three strikes, supports amending the law so that the current crime must also be a serious or violent crime (Harris). San Francisco DA Terence Hallinan, “who is philosophically opposed to the strike law,” has effectively amended the law himself by deciding that his office will not apply the three strikes law for non-violent or non-serious felonies except in extraordinary circumstances. Crimes committed by juveniles will also not be put forth as possible strikes (Harris, Hallinan). Hallinan’s policy “could reduce the county’s three strikes caseload by 85 percent” (Schuyler).
Racial disparity is another concern in three strikes sentencing. According to the California Department of Corrections, “blacks make up 7% of the state’s population but account for 20% of felony arrests, 31% of state prisoners, and 43% of those imprisoned for a third strike” (Report 13). (The racial disparity is even more pronounced in Georgia (Report 5).) Three strikes supporters retort that “the law doesn’t discriminate against blacks and Latinos, it discriminates against criminals” (Rosenthal).
The other controversial problem in California has been the very uneven application of the law. Prosecutors in different counties, and sometimes even within the same county, have very different policies about when they will prosecute under the three strikes law. This arises because of prosecutorial discretion over charging and plea bargaining. San Francisco DA Terrence Hallinan refuses to prosecute minor crimes, especially nonviolent drug crimes, as third strikes, while Los Angeles DA Gil Garcetti routinely prosecutes the same crime as second or third strikes. (Incidentally, both DA’s are at least partially acting out the will of their constituencies, since the majority of San Franciscans voted against Prop 184, while in every other county it passed resoundingly.) From county to county the application varies widely, which is arguably a violation of a defendant’s right to equal protection. Further, three strike proponents argue that it is illegal for prosecutors like Hallinan to undermine the law by not prosecuting all possible third strikers as harshly as possible (Report 3).
Two thirds of California’s three-strike cases have been filed in Los Angeles County, partly because Gil Garcetti prosecutes three-strikers much more zealously than many other DA’s, including Terence Hallinan. A San Diego defendant appealed under violation of equal protection because his possession of a small quantity of drugs would not be charged under three strikes in San Francisco. The appellate court refused his appeal, but acknowledged that the fact that “a person faces either probation or 25 years to life based only on geography should trouble any thinking person” (Report 13).
In response to these problems, “state legislators have introduced bills designed to … require further studies of the current law or mandating that third-strike prosecutions stem from violent offenses” (Olivio). On the other hand, a committee within the L.A. County DA’s office reviewed its three-strikes policy and decided that no significant changes are necessary. The committee did recommend, however, “that prosecutors evaluate a defendant’s entire criminal record, not just the current offense, in deciding whether to exercise their discretion to dismiss a prior strike in the furtherance of justice” (Harris 7/3/97).
The three strikes law in California is still very popular and strongly supported by voters and politicians, and “the law remained a cornerstone of criminal justice policy even in the 1998 elections” (Report 3). Executive director of the California District Attorney Association Lawrence Brown claims that the three strikes law “has done everything that the Legislature and the voters intended. We have put away the worst of the worst and made our communities safer as a result.” Three strikes advocates “hail [the law] as a key reason behind dipping crime rates” (Olivio). Criminologists, on the other hand, credit the falling crime rates to the significant drop in unemployment in California, fewer young males in the crime-prone age group, community policing, and a drop in alcohol consumption (Report 12).
Three strikes laws are essentially an overreaction to a few horrific events which convinced many people that violent criminals are being sentenced too leniently. The results were laws that are unjust, ineffective, and expensive. We have abandoned all notions of reform or rehabilitation, or even fair sentencing, by attempting to keep a large number of criminals locked up forever. Unfortunately, I think there is little chance of the laws being substantially amended or softened. It is going to be very difficult to explain to the voters the ethical and economic problems with three strikes laws, and enormous political courage will be required in order to seriously amend or repeal the current laws. “[Victor] Hugo’s classic story should serve as a constant reminder that our penal system serves best when it addresses crime and punishment in a resolute and firm manner—but never devoid of compassion, sensitivity, and common sense” (Tanenbaum).
Works Cited
California Ballot Pamphlet: General Election November 8, 1994
Charney, Joseph P. (LA Deputy DA) “Justice Must Be Measured,
Rational and Proportionate.” L.A. Times 8 March 1999, local ed.
Hallinan, Terence. (SF DA) Office Memorandum: “Guidelines and
Procedures in Three Strikes Cases.” 4 April 1996.
Harris, Michael D. “Three Strikes Has Low Impact, Study Concludes.”
L.A. Daily Journal 29 October 1997, local ed.
Harris, Michael D. “If It Ain’t Broke, Don’t Fix It.”
L.A. Daily Journal 3 July 1997, local ed.
Harris, Michael D. “L.A. Among Toughest Counties in Applying 3 Strikes.”
L.A. Daily Journal Date Unknown, local ed.
Krikorian, Greg. “Three-Strikes Law Has No Effect, Study Finds.”
L.A. Times 2 March 1999, local ed.
Moran, Patrick D. (LA Deputy DA) Telephone interview. 25 March 1999.
Morris, Sharon B. (LA Attorney) “Prison Should Be Last Resort; Involvement
in Society Assists Rehabilitation.” L.A. Daily Journal 20 August 1997, local ed.
Olivio, Antonio. “Families of Inmates March in Protest of 3-Strikes Law.”
L.A. Times 8 March 1999, local ed.
Public Policy Reports: “Three Strikes: Five Years Later.”
Campaign for an Effective Crime Policy, November 1998.
Reid, Sue Titus. Crime And Criminology, Eighth Edition. Boston: McGraw Hill, 1997.
Rosenthal, Richard. (LA Deputy DA) “Effectiveness of 3-Strikes Law.”
L.A. Times 11 March 1999, local ed.
Schuyler, Nina. “DA Changes S.F. Policy on ‘3 Strikes’ Prosecutions.”
L.A. Daily Journal Date Unknown, local ed.
Tanenbaum, Bob. (LA Attorney) “The Great Pizza Felony.”
L.A. Times 8 March 1995, local ed.