Three Strikes Legislation

I have done a lot of thinking about this paper and tried to come up if I am in favor or not of the three strikes legislation. Once I started my research and found out about California's laws, I was very much in favor of the legislation. My paper is going to argue the "in favor" side of the three strikes legislation.

California's "Three strikes and you're out" legislation has been called "the largest penal experiment in American history." California's three strikes law is the harshest recidivism statute in the country and it increases punishments sharply and discontinuously at the 3rd strike (Zimring, Hawkins and Kamin 2001). California's three strikes law took effect in March of 1994. A "strike" is a conviction for a serious or violent felony as these are laid out in the California Penal Code, examples of strikes include murder, rape, robbery, attempted murder, assault with intent to rape or rob, any felony resulting in bodily harm, arson, kidnapping, grand theft with firearm, drug sales to minors, and any felony with a deadly weapon.

A criminal with one strike who is convicted of any subsequent felony faces an automatic doubling of the sentence length on that conviction and can't be released prior to serving at least 80% of the sentence length. A criminal with two strikes who is convicted of any subsequent felony faces a prison sentence of 25 year to life and can't be released prior to serving at least 80% of the 25-year term. Although other states have passed similar sounding laws, the California law is widely considered to be the most severe. (Zimring, Hawkins and Kamin 2001, Shepard 2002).

Three strikes prisoners must serve at least a twenty year sentence before they are even eligible for parole and some will never be released. Assume a 22 year old or 264 month average sentence. The average prisoner sentenced under two-strikes serves 43 months (Brown and Jolivette 2005), if we take that as the counterfactual sentencing scheme but assume a 64 month average sentence to account for a worse mix of crimes among the three strikers then the increase in prison time is 200 months or 16.6 years per prisoner (Brown and Jolivette 2005).

The California Attorney General's Office claimed that in the four years after the law was passed it resulted 4,000 fewer murders and an 800,000 fewer criminal victimizations (Lungren 1998). According to the California Attorney General's Office releases with two strikes, who are subject to a third strike for any new felony conviction, are more likely to be rearrested than those with only one strike.

Crimes committed by juveniles under the age of 16 can not count as strikes at all and not all strikeable crimes for adults are strikeable crimes for juveniles. In particular, residential burglary, a common strike for adults, is not a strike for juveniles (Packel 2002). It was widely thought that juvenile crimes could not count as strikes because juveniles don't have the same protections afforded to adults in criminal law. For example: the right to bail or a jury trial. For this reason, the Judicial Council of California recommended that trial judges not use juvenile adjudications as strikes (Packel 2002). Most importantly, very serious juvenile crimes, the ones most likely to lead to strikes, will result in a transfer to the adult court where records are not sealed even for juveniles.

A potentially more serious issue is that judges and prosecutors have considerably leeway to dismiss strikes. In People v. Romero (1996) the California Supreme Court declared that judges had the right to dismiss prior strikes, "in the furtherance of justice". Walsh (2004) estimates that in urban counties 25-45% of eligible three-strike offenders will have a prior strike dismissed. The Los Angeles District Attorney's Office indicates

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