“Three Strikes and You’re Out!”
In the mid-1990s, the United States entered what Franklin Zimring proposed as the third phase of prison expansion: A shift focused on the more general offender population with an emphasis on increased lengths of stay rather than increasing the likelihood of imprisonment. This also followed ”two fundamental shifts in the foundation of criminal sentencing” — the introduction of determinate sentencing and an evolution in sentencing guidelines (Clear and Frost, 81). During the Clinton era, policies were created based on a crime control agenda designed to combat the spike in violent crime. This included mandatory minimum sentences, truth-in-sentencing, and three-strikes laws — punitive “tough on crime” initiatives that targeted drugs-related crimes and serious offenses such as sexual assault, homicide, armed robbery.
In June of 1992, 18-year-old Kimberly Reynolds was murdered by repeat offenders out on parole. Her father, a wedding photographer from Fresno, California, started the three-strikes initiative to target the type of criminals that killed his daughter. It didn’t gain momentum until a year later, following the kidnapping and murder of 12-year-old Polly Klaas at the hands of a California-released inmate with an extensive prior record of violence. Under the slogan of “three-strikes-and-you’re-out”, public outrage generated from these highly publicized crimes fueled a political thrust to mandate increasingly tougher prison terms for repeat offenders. In just three years, these laws were enacted in twenty-four states. In 1995, three-strikes became a federal sentencing policy through the passage of the Violent Crime Control and Law Enforcement Act of 1994 under President Bill Clinton.
The reasoning behind the implementation of three-strikes was that criminals who had committed a number of felonies were recidivist; thus, lengthened incarceration would heighten public safety and further protect society from those individuals. The theoretical justification for the three-strikes policies was grounded in the punitive ideologies of deterrence and incapacitation.
It is important to understand what these policies entailed. Beyond imposing longer prison sentences for certain recidivist criminals, one feature particularly significant was the requirement that the person convicted of a felony has been previously convicted of one or more violent or serious felonies to receive a sentence enhancement. California’s law is unique in that it allows for any felony to be counted if the offender has a prior initial conviction for its list of “strikeable” crimes. Two provisions in the California law made it one of the most severe in the country.
California’s three-strikes law is atypical. All other three-strikes states carefully worded legislative reforms to ensure that few offenders would be affected by the law, but in California, the third strike that triggers the life sentence can be any felony. In terms of what constitutes a strike, “strikeable” offenses in a vast majority of states includes violent felonies such as murder, rape, robbery, arson, and assaults. Some states have included other nonviolent charges. California, for example, includes the sale of drugs to minors, burglary, and weapons possession within its list of offenses. Furthermore, the law doubles sentences for a second strike. Under California’s criminal code, non-strike inmates typically serve less than half their sentence. Only six other states have two strikes provisions, all of which limit the offenses that trigger a strike penalty to those that are serious or violent.
These statutes also demand consecutive sentencing for multiple offenses committed by strikers and establish that serious and violent felony convictions committed years before a new offense count as prior strikes. That said, there is prosecutorial discretion when considering prior felonies during sentencing. Once the sentence is imposed, strikers must serve their time in prison, are not eligible for probation, cannot have their sentence suspended, and are not qualified for diversion. However, three-strikes laws differ across states in the length of imprisonment imposed when the offender “strikes out.” In California, a minimum of twenty-five years must be served before parole eligibility. Lastly, strikers cannot reduce their time in prison by more than one-fifth, no matter how many credits they earn by working or participating in educational activities.
It was presumed by policymakers that the likelihood of prison populations being impacted by three-strikes was low considering that many states already had substantial sentence enhancement for repeat offenders in place. In fact, in all twenty-four of the three-strike states, provisions were already in place to enhance penalties for repeat offenders prior to the passage of that legislation. In calculating how three-strikes affects prison populations, the number of admissions and the average length of stay both increase radically in this equation. As the numerator, the average daily population drastically rises annually.
This is particularly significant in California, as the exception noted in their law expanded the “strike zone” so that thousands of offenders could be sentenced under the new law. “By the late 1990s, more offenders were serving strike sentences in California than in all other three-strike states combined, and most of the three-strike inmates in California are serving second-strike enhancements rather than the third-strike 25-to-life sentences” (Clear and Frost, 90).
Theoretically, the advantages of three-strikes are compelling. Three-strikes laws would protect society from dangerous career criminals, function as a preventive measure for existing offenders, and save money needed to carry recidivist felons through the judicial system. In light of the events that fueled the demand for these statutes, it is right for repeat offenders to have their freedom revoked.
On the other hand, the movement behind the three-strikes law is largely emotionally driven. Overall rates of crime and violent crime in the United States declined during the 1990s. This downturn in crime was evident before many states enacted three-strikes. Furthermore, the cost of handing three-time offenders’ life sentences would require additional spending to maintain imprisonment when other measures, proven more effective, could be applied with the same amount of money. By focusing on the punishment of criminals rather than their correction, three-strikes could target communities of color (Black and Latino in California) already disproportionately affected by incarceration, where low-level offenders would face maximum sentences for petty crimes.
At first glance, it would appear that California's law has indeed had a major impact on the criminal justice system and the prison system. Nearly 40,000 offenders have been sentenced to California's prisons under two or three-strikes provision. But one of the biggest issues, strikingly so in California, was that many defendants sent to prison under three-strikes are non-violent repeat offenders.
More than twenty years after three-strikes policies were implemented, the relationship between sentencing and incarceration through the scope of that legislation is worth noting. In California, the intent of enacting the law is stated explicitly as “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.” Additionally, the law was designed to limit the discretion of system officials by prohibiting plea bargaining. Ironically, the California experience actually enlarged both the discretionary powers and sentencing powers of the prosecutor at the expense of the judge. As a result, the California law has produced a great deal of litigation in the California appellate courts.
The punitive approach of three-strikes reveal what specialists like Zimring, Hawkins, and Kamin have continued to stress: It is ineffective to the modern criminal justice system because it leads to the growth of the prison population and increase of the number of cases of recidivism. In fact, the gravity of overcrowding in California’s 33 prisons resulted in a class action lawsuit in 2001 alleging cruel and unusual punishment and 8th amendment violations.
Moreover, the broader social, economic, and political effects of three-strikes prove more meaningful than the policies themselves. Since three-strikes, sentences have become harsher, particularly in politically conservative counties, and Black and Latino felons receive longer prison sentences. Politicians today have moved away from their “tough on crime” approach to address the negative results of three-strikes and other mandatory sentencing policies. Even former President Bill Clinton has publicly portrayed his regret for supporting three-strikes. The overall sentiment concerning three-strikes is best expressed in this quote by Attorney General Eric Holder Jr.: “We cannot simply prosecute or incarcerate our way to becoming a safer nation.”
In short, the “three-strikes-and-you’re-out” movement was largely symbolic. It was not designed to have an effect n the criminal justice system and it had virtually no impact on current sentencing policies. California, the only state to aggressively implement the three-strikes law, displayed no superior reductions in crime rates. In 2000, California began relaxing the penalties stated within three-strikes by giving the option of drug treatment options in lieu of a third strike triggered by a drug offense. In 2004, voters rejected Proposition 66, an attempt to change some aspects of the original three-strikes law. In 2012, voters approved Proposition 36 to modify elements of California’s three-strikes. Revisions included the imposition of life sentences only when the new felony conviction is serious or violent and re-sentencing for offenders currently serving life sentences if their third strike conviction was not serious or violent and if the judge determines that the re-sentence does not pose an unreasonable risk to public safety.
However, the initiative also maintains the life sentence penalty for criminals with “non-serious, non-violent third strike if prior convictions were for rape, murder, or child molestation”. This initiated state statute granted eligibility for approximately 3,000 convicted felons serving life terms with nonviolent third strike convictions to petition the court for a new, reduced sentence. It is estimated that those reductions could save California between $150 and $200 million a year.
Twenty-eight states, California among them, still have “habitual offender” laws like three-strikes. This is most likely because of two reasons: Very few offenders with prior convictions for serious crimes are recidivist and when criminals do fit this profile, states already had the capacity to and were sentencing such offenders to very lengthy prison terms. California amended its three-strikes law to reflect this. Nonetheless, the general consensus is that three-strikes served more as an emblematic campaign.
The Punishment Imperative echoes this conclusion, categorizing three-strikes laws as a product of public alarm exacerbated by media coverage that portrayed our penal system as incapable of preventing crime from occurring: “For the most part these laws were written to ‘bark louder than they bite,’ thereby appeasing the public’s ongoing thirst for retribution while having a negligible effect on the size of prison populations” (Clear and Frost, 90). Needless to say, the consequences of three-strikes lingers today — principally in California, where 8,800 prisoners continue serving life terms under the 1994 law.