Three Strikes Laws

Most state and federal laws impose stiffer sentences for repeat offenders, but they do not impose punishments as harsh as "Three Strikes and You're Out" (TSAYO) laws. TSAYO laws mandate that a heavy sentence be imposed on persons who are convicted of a third felony. The minimum prison sentence required by such laws is typically between 25 years and life. The federal government and more than two dozen states have passed TSAYO legislation since 1992.

TSAYO legislation is designed to protect society from dangerous individuals who show a pattern of lawlessness, incapacitate repeat felony offenders by keeping them behind bars, and deter others from committing similar criminal offenses. National criminal justice statistics show that the number of violent crimes has precipitously dropped over the last eight years. TSAYO legislation is not without its critics, however. In 1998 several studies called into doubt the effectiveness of three-strikes laws. Constitutional challenges have been leveled against TSAYO laws at both the state and federal levels, but courts and legislatures have resisted overturning them.

In 1994 Congress passed the VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT (VCCLEA). Public Law 103–322, September 13, 1994, 108 Stat 1796. It imposes a mandatory sentence of life imprisonment without PAROLE on defendants who are convicted of a serious violent federal felony when they have two or more prior serious violent felonies or one or more serious violent felony convictions and one or more serious drug offense convictions. The first two convictions may be for state or federal offenses, but the third conviction must be for a federal offense before the VCCLEA three-strikes provision applies.

VCCLEA defines "serious violent felony" to include murder, voluntary MANSLAUGHTER, assault with intent to commit murder or rape, aggravated SEXUAL ABUSE, KIDNAPPING, aircraft PIRACY, ROBBERY, CARJACKING, EXTORTION, ARSON, and firearms use or possession, among others. 18 U.S.C.A. 3559. Offenses committed at the state level need not be deemed a felony by the state to trigger the VCCLEA three-strikes provision as long as the state offense is "seriously violent," meaning the offense is similar to those specified by the VCCLEA. "Serious drug offense" is defined by the VCCLEA as knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense enumerated controlled substances. Drug offenses committed at the state level are considered "serious" under VCCLEA if they would be punishable by the federal controlled substances laws.

The impetus behind TSAYO laws came from a string of highly publicized cases in which a crime victim was viciously attacked by a repeat offender on parole. One of the most publicized cases was that of 12-year-old Polly Klaas from California. In 1993 she was kidnapped, molested, and murdered by Richard Allen Davis, a SEX OFFENDER with a long history of criminal convictions. Polly's father, Marc, appeared on a number of national television programs to attack the criminal justice system's lenient treatment of repeat felony offenders and to advocate the enactment of three-strikes laws. Relatives of other victims, concerned citizens, prosecutors, and politicians followed suit.

Washington state's legislature was the first to respond, passing TSAYO legislation in 1993. West's RCWA 9.94A.392 et seq. The law mandates life in prison after conviction on any three of about 40 felonies, ranging from murder to robbery and vehicular assault. Defendants convicted under this law are not eligible for parole, nor may their sentence be suspended or shortened. California and 11 other states passed similar laws in 1994. Nine more states were added to the list a year later. By the year 2000 more than 24 states had adopted TSAYO laws of their own. Georgia took matters a step further, enacting a "Two Strikes and You're Out" law. Ga. Code Ann. S 17–10–6.1(b). Felons convicted of the state's most serious crimes only twice are sentenced to life in prison without parole. Known as "the seven deadly sins," these crimes are murder, armed robbery, rape, kidnapping, aggravated SODOMY, aggravated CHILD MOLESTATION, and aggravated sexual BATTERY.

Despite their popularity in the early 1990s, TSAYO laws have come under severe attack in the late 1990s. In 1998 several studies were released that questioned the effectiveness of such laws. Four studies were largely responsible for driving the debate: one by the Rand Institute, one by the National Institute of Justice, one by the Justice Policy Institute, and one by the Campaign for Effective Crime Policy, a nonpartisan group comprised of wardens, prosecutors, and law enforcement officials.

The studies revealed two kinds of results. In most states, little had changed. Washington had convicted 66 people under its TSAYO law. Arkansas had 12 convictions and Alaska, Connecticut, Louisiana, Maryland, North Carolina, Pennsylvania, Vermont, and New Jersey had no more than six. Wisconsin had invoked its law only once, while no one in Utah, Virginia, Montana, Tennessee, New Mexico, or Colorado had ever been prosecuted for a third-strike offense. Instead, the states that let their TSAYO laws lay idle were still seeking harsh punishments for dangerous recidivists, but under repeat-offender statutes that had been on the books for decades. In other words, for these states the TSAYO laws represented a symbolic measure that neither improved nor diminished a prosecutor's ability to keep dangerous recidivists off the streets. Similarly, the studies showed that only 35 offenders had been convicted of a third strike at the federal level through 1997.

The results were vastly different in California and Georgia. California had imprisoned more than 4,800 criminals for 25 years to life on third strikes; the state also identified more than 40,000 second-strike offenders who would await such a sentence were they subsequently convicted for any one of roughly 500 crimes. Georgia had sent approximately 1,000 defendants to prison for life without parole under its two strikes law and identified another 1,000 offenders eligible for that fate were they to subsequently commit one of the "seven deadly sins."

These studies did more than arm opponents of TSAYO laws with evidence of disparate results. They suggested that the laws had been enforced more often against minority offenders than against white offenders. In California only 1,237 of the more than 4,800 defendants sentenced for a third strike were white; 2,138 were African American, 1,262 were Latino, and 201 were classified as "other." The studies further indicated that these minority offenders were mostly being punished for nonviolent third strikes. Statistics demonstrated that more than twice as many defendants' third-strike offenses were for drug possession or petty theft as for murder, rape, or kidnapping. Some of these nonviolent third strikes included seemingly innocuous offenses, such as shoplifting, stealing packages of steak, and drinking alcohol at a liquor store without paying for it.

Proponents of TSAYO laws have not been dissuaded by these results. Prosecutors say that these laws remain a vital tool for them to hang over the heads of first- and second-time offenders. They contend that seemingly "harmless" third-strike offenses are often isolated from the first and second strikes that place the defendant in a less sympathetic context. For example, an individual who was prosecuted for a third strike after he stole a bottle of vitamins had eight prior convictions, one of which was for robbery. Another individual who was prosecuted for bigamy under California's TSAYO law had prior convictions for armed robbery. Prosecutors also point to statistics reflecting a dramatic decline in violent crime over the last eight years as conclusive proof of TSAYO laws' effectiveness.

Opponents of TSAYO laws acknowledge that prison populations have drastically increased in some states due in part to incarceration of third-strike offenders, but they question whether this result is entirely good. Reports indicate that prisons in California and Georgia are severely overcrowded. The Georgia Department of Corrections estimates that it needs nearly 14,000 more beds and a budget increase of 25 percent to accommodate the overflowing prison population. In the meantime, state prisons have erected tents as cell blocks, moved bunks into common areas, and housed three inmates in cells designed for two.

California officials have predicted that its prisons will experience a shortage of 70,000 beds from convictions under the state's TSAYO laws. They also predict that the number of inmates age 50 to 64 will increase 80 percent by 2013, and the number of prisoners 65 and older will increase by 144 percent. They agonize over booming medical costs spent to treat geriatric prisoners and worry that the money being spent on them comes from funds designated for schools, roads, and neighborhood programs. According to one study, California spends about $1,000 on medical expenses for the average inmate, but more than $6,000 a year for inmates older than 50.

While these figures have caused concern among even the staunchest proponents of three-strikes legislation, no TSAYO law has been repealed at the state or federal level. Even legislative proposals to study the law's impact have been rejected in California, being vetoed first by a Republican governor and then by a Democratic one. The fact that California's TSAYO law is regularly used by state prosecutors and universally hated by defendants, the governors said, speaks for itself.

The U.S. Court of Appeals for the Ninth Circuit became the first state or federal court to strike down a TSAYO law in Andrade v. Attorney General of State of California, 270 F.3d 743 (9th Cir. 2001). The defendant in that case, Leandro Andrade, received a prison sentence of 50 years to life for petty theft of $154 worth of children's videotapes from two Kmart stores. Petty theft is a misdemeanor in California, punishable by no more than six months in jail. However, California law provides that petty theft by a person with a prior conviction for a property crime is a "wobbler" offense, meaning the crime can be prosecuted as either a misdemeanor or a felony. Andrade had no prior violent offenses, but because he had previously committed three burglaries in one day, his two instances of shoplifting were prosecuted as felonies, and the trial court imposed an indeterminate life sentence with no possibility of parole until after he had served 50 years of his sentence. Andrade was 37-years-old when he started serving his sentence.

"The punishment raised an inference of gross disproportionality when compared to defendant's crime," the Ninth Circuit wrote. Even in light of the defendant's six prior nonviolent felony and misdemeanor convictions, the sentence was substantially more severe than sentences for most violent crimes in California and was unusual even when compared to applications of TSAYO laws applied to violent felons in other states, the Ninth Circuit concluded. The Ninth Circuit also concluded that the California Supreme Court, in upholding the defendant's sentence, failed to give proper consideration to the U.S. Supreme Court's decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), a case holding that a life sentence under a South Dakota recidivist law for writing a bad check amounted to CRUEL AND UNUSUAL PUNISHMENT.

The state of California appealed, and the U.S. Supreme Court reversed. Lockyer v. Andrade, ___ U.S. ___ 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Writing for a five-person majority, Justice SANDRA DAY O'CONNOR noted that the Ninth Circuit overturned the California Supreme Court's decision pursuant to a HABEAS CORPUS petition. However, O'Connor wrote, 28 U.S.C.A. § 2254(d)(1) only gives federal courts authority to overturn state court decisions in habeas proceedings if the state court decision was contrary to or an unreasonable application of clearly established federal law.

Although O'Connor agreed that Solem and Lockyer were similar cases, she emphasized that a decision may only be deemed "contrary to clearly established precedent" if the state court applied a rule that contradicts the governing law set forth in the Supreme Court's cases or confronts facts that are materially indistinguishable from a Supreme Court decision and the state court nevertheless arrives at a different result. This did not happen here, O'Connor said. The defendant in Solem was sentenced to life in prison without the possibility of parole, while the defendant in Lockyer became eligible for parole after serving 50 years of his sentence. This fact made the two cases materially different, O'Connor said, and justified the California Supreme Court's decision upholding Andrade's sentence.