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Three Strikes Laws

Have Three-strikes Laws Worked To Reduce Recidivism?

Criminal statutes that mandate increased sentences for repeat offenders, usually after three serious crimes.

Beginning in the early 1990s, states began to enact mandatory sentencing laws for repeat criminal offenders. These statutes came to be known as "three strikes laws," because they were invoked when offenders committed their third offense. By 2003 over half the states and the federal government had enacted three strikes laws. The belief behind the laws was that getting career criminals off the streets was good public policy. However, the laws have their critics, who charge that sentences are often disproportionate to the crimes committed and that incarceration of three strikes inmates for 25 years to life would drive up correctional costs. Nevertheless, the U.S. Supreme Court has upheld three strikes laws and has rejected the argument that they amount to CRUEL AND UNUSUAL PUNISHMENT.

The state of Washington passed the first three strikes law in 1993. Anyone convicted of three separate violent felonies must be sentenced to life in prison with no chance for PAROLE. The state of California followed, in 1994, by enacting a three strikes law that mandates a sentence of 25 years to life for a third felony conviction. Unlike Washington, the California law counts nonviolent felonies, such as BURGLARY and theft, as "strike" offenses. The popularity of the three strikes law in California has been pronounced. By 2001 over 50,000 criminals had been sentenced under the new law, far more than any other state, with almost one-quarter of the inmates facing a minimum of 25 years in prison. Not surprisingly, California's law has drawn the most attention in the debate over three strikes statutes.

The California law originally gave judges no discretion in setting prison terms for three strikes offenders. However, the California Supreme Court ruled, in 1996, that judges, in the interest of justice, could ignore prior convictions in determining whether an offender qualified for a three strikes sentence. Prosecutors have the greatest discretion; they may decide whether to count certain crimes as strikes when they file their criminal complaint. Critics have charged that this system introduces the worst of both worlds: mandatory sentences for those charged under the law and unequal application of the law. The disparity in prosecutorial use of the Californian law has meant that the law is rarely used in San Francisco but is used heavily in other parts of the state.

Supporters of three strikes laws have argued that the plummeting crime rates of the 1990s were due in part to this tough new sentencing scheme. They especially rely on California statistics, which cite the fact that approximately 1,200 offenders are sentenced per year in California under the three strikes law. They call the law a success since offenders are off the street for at least 25 years and are not able to harm the public again.

The three strikes sentencing of offenders who have committed a number of violent crimes has rarely drawn much criticism. Concerns about the fairness and proportionality of the law have been raised when an offender is sent to prison for 25 years for shoplifting or some other minor property crime. Critics note that a 25-year sentence for a third strike shoplifting offense is the same sentence meted out to those who commit murder. Long sentences for relatively minor offenses, they contend, amounts to cruel and unusual punishment, which is barred by the EIGHTH AMENDMENT. By the late 1990s a number of appeals had been raised in state and federal courts based on the disproportionality argument.

The case of Leandro Andrade became a focal point in the argument over the constitutionality of California's three strikes law. Andrade was convicted of two counts of petty theft for shoplifting a total of nine videotapes from two Kmart stores. The value of the tapes stolen amounted to $153.54. Under California law, a petty theft charge is usually a misdemeanor with a penalty of up to six months in county jail and a fine of up to $1,000. However, the prosecutor had the discretion to elevate the charges to felony level offenses. Andrade, who was a heroin addict, had a string of burglary, theft, and drug convictions on his criminal record. The prosecutor charged him with two counts of felony theft and a jury convicted Andrade on both counts.

These separate convictions, along with a prior first-degree burglary conviction, triggered the three strikes law. Because the two thefts were treated as separate incidents, the three strikes law was applied to both charges, leading to two consecutive terms of 25 years to life in prison. Andrade could not apply for parole until he served 50 years in prison, at which time he would be 87 years old. The California courts upheld this sentence as proportionate. The Ninth Circuit Court of Appeals ruled that Andrade's sentence was unconstitutional because it was grossly disproportionate. Although the California law was unconstitutional as applied, the Ninth Circuit refused to hold that the "three strikes and you're out" law was generally unconstitutional.

The Supreme Court, in a 5–4 decision, overturned the Ninth Circuit decision and upheld the constitutionality of the three strikes law as applied to Andrade (Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 [2003]. The Court held that federal courts must give due deference to state court sentencing decisions. In a prior ruling the Court had stated that legislatures must be given "broad discretion to fashion a sentence that fits within the scope of the proportionality principle." The "precise" contours of this principle were "unclear," which meant that state courts had more latitude to uphold sentences such as Andrade's. The Court further held that Andrade's sentence was not grossly disproportionate.

Justice DAVID SOUTER, in a dissenting opinion, sided with the Ninth Circuit's views. A prior Supreme Court decision had voided a life sentence given to a repeat offender for committing a theft valued at $150. Justice Souter argued that Andrade's criminal background, coupled with the petty thefts, was strikingly similar. Though Andrade would be eligible for parole at age 87, it constituted "the practical equivalence of a life sentence without parole." Souter was also troubled by the state's use of the two minor theft charges, just weeks apart, as the second and third strikes. In his view, "Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes." A 25-year sentence would have been reasonable but 50 years was disproportionate.

Though critics of the law were disappointed by the decision, they argued that the economic cost of incarcerating three strikes inmates may ultimately lead to the repeal of such laws. In California it will cost an estimated $700 million per year to incarcerate these offenders, and over a billion dollars to construct new prisons to house the escalating number of inmates. As the state contends with caring for an aging prison population it will be forced to decide whether it wants to allocate limited resources to maintain the three strikes law.


D'Addesa, Danielle M. 2003. "The Unconstitutional Interplay of California's Three Strikes Law and California Penal Code Section 666." University of Cincinnati Law Review 71 (spring).

Zimring, Franklin E., Sam Kamin, and Gordon Hawkins. 2003. Punishment and Democracy: Three Strikes and You're Out in California. New York: Oxford Univ. Press.

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