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In the United States, habitual offender laws (commonly referred to as three-strikes laws) were first implemented by states then by the federal government in 1995. They mandate courts impose harsher sentences on those convicted of an offense if they have been previously convicted of two prior serious criminal offenses. The laws were designed to keep people who had shown a predilection to committing crimes in prison and away from potential victims.
Twenty-eight states have some form of "three-strikes" law. A person accused under such laws is referred to in a few states (notably Connecticut and Kansas) as a "persistent offender", while Missouri uses the unique term "prior and persistent offender". In most jurisdictions, only crimes at the felony level qualify as serious offenses; however, misdemeanor offenses can qualify for application of the three-strikes law in California, whose application has been the subject of controversy.
The three-strikes law significantly increases the prison sentences of persons convicted of a felony who have been previously convicted of two or more violent crimes or serious felonies, and limits the ability of these offenders to receive a punishment other than a life sentence.
The practice of imposing longer prison sentences on repeat offenders (versus first-time offenders who commit the same crime) is nothing new, as judges often take into consideration prior offenses when sentencing. However, there is a more recent history of mandatory prison sentences for repeat offenders. For example, New York State had a long-standing Persistent Felony Offender law dating back to the early 20th century (partially ruled unconstitutional in 2010, but reaffirmed en banc shortly after). But such sentences were not compulsory in each case, and judges had much more discretion as to what term of incarceration should be imposed.
The first true "three-strikes" law was passed in 1993, when Washington voters approved Initiative 593. California passed its own in 1994, when their voters passed Proposition 184 by an overwhelming majority, with 72% in favor and 28% against. The initiative proposed to the voters had the title of Three Strikes and You're Out, referring to de facto life imprisonment after being convicted of three violent or serious felonies which are listed under California Penal Code section 1192.7.
The concept swiftly spread to other states, but none of them chose to adopt a law as sweeping as California's. By 2004, twenty-six states and the federal government had laws that satisfy the general criteria for designation as "three-strikes" statutes—namely, that a third felony conviction brings a sentence of 20 to life where 20 years must be served before becoming parole eligible. After the hype leading to the institution of these laws across the country, it soon became apparent that they were not bringing the results the public expected. Data shows that the laws didn't necessarily reduce violent crime, but instead, in states such as California where a "strike" did not have to be a violent felony, put away more "criminals" for non-violent and petty crimes, dramatically raising the prison population. This led to the drastic reduction of the power of the Three-Strikes Law in California in 2012 by approval of Proposition 36.
Enactment by states
The following states have enacted three-strikes laws:
- New York has employed a habitual felon statute since 1797.
- Texas has had a three-strikes with mandatory life sentence since at least 1952.
- In Rummel v. Estelle (1980), the US Supreme Court upheld Texas' statute, which arose from a case involving a refusal to repay $120.75 paid for air conditioning repair that was, depending on the source cited, either considered unsatisfactory or not performed at all, where the defendant had been convicted of two prior felony convictions, and where the total amount involved from all three felonies was around $230.
- In 1993: Washington
- In 1994: California, Colorado, Connecticut, Indiana, Kansas, Maryland, New Mexico, North Carolina, Virginia, Louisiana, Wisconsin, Tennessee, and Georgia
- In 1995: Arkansas, Florida, Montana, Nevada, New Jersey, North Dakota, Pennsylvania, South Carolina, Utah, and Vermont
- In 2006: Arizona
- In 2012: Massachusetts
The exact application of the three-strikes laws varies considerably from state to state, but the laws call for life sentences without possibility of release for at least 25 years on their third strike.
Most states require one or more of the three felony convictions to be for violent crimes in order for the mandatory sentence to be pronounced. Crimes that fall under the category of "violent" include: murder, kidnapping, sexual abuse, rape, aggravated robbery, and aggravated assault. Some states include additional, lesser offenses that one would not normally see as violent. California mandated a minimum sentence of 25-to-life so long as the first two felonies were deemed to be either "serious" or "violent". For example, California did not require the third "strike" to be serious or violent to qualify for a life sentence, and 2-strike felons could easily be given this enhanced sentence for minor third strike lawbreaking. In addition, the list of crimes that count as serious or violent in the state of California is much longer than that of other states, and consists of many lesser offenses that include: firearm violations, burglary, simple robbery, arson, and providing hard drugs to a minor, and drug possession. As another example, Texas does not require any of the three felony convictions to be violent, but specifically excludes certain "state jail felonies" from being counted for enhancement purposes.
In 1995, Sioux City Iowa native Tommy Lee Farmer, a professional criminal who had served 43 years in prison for murder and armed robbery was the first person in the United States to be convicted under the Three-Strikes Law when he was sentenced to life in prison for his botched attempt to hold up an eastern Iowa convenience store. The sentencing was considered so significant that President Bill Clinton interrupted a vacation to make a press statement about it.
Another example of the three-strikes law involves Timothy L. Tyler who, in 1992 at age 24, was sentenced to life in prison without parole when his third conviction (a federal offense) triggered the federal three-strikes law, notwithstanding that his two prior convictions involved drugs, and neither conviction resulted in any prison time served. The judge could not consider Tyler's drug addiction, lack of violent conduct, mental health issues, or youth when sentencing.
Violent crime, but especially homicide, has fallen in the Los Angeles area, as well as other areas of Southern California: Los Angeles's 2010 homicide count was 297, less than a third of the 1992 high of 1,000 homicides. This statistic reflects overall national trends of decreasing violent crime and may be unrelated to the three-strikes law. Several studies have shown that the legislation was unlikely to have been the cause of lower crime rates. An example was a 1999 study, in which, pre-three strikes crime rate (1991–1993) were compared to post-three strikes crime rate (1995–1997). The dropping crime rate in California was compared directly to how severely counties enforced the three strikes law. The dropping crime rate was the same in counties with both light and harsh enforcement, sometimes being even greater in counties with lighter enforcement of the three strikes law.
A more recent study, in 2004, analyzed the effect of the legislation as a means of deterrence and incapacitation showed that the three strikes law had no significant effect on deterrence of crime. The ineffectiveness of the three strikes law on the crime rate may be due to the diminishing marginal returns associated with having pre-existing repeat offender laws in place. The punishments for homicides are extremely harsh, resulting in extremely long sentences, life sentences without the possibility of parole or even the death penalty, even for the first conviction, overshadowing any deterrent effect of the three-strikes law. In addition, the three strikes law completely ignores juveniles, which make up a large part of violent crimes in California. Furthermore, there is some evidence that criminals on their last strike are more desperate to escape justice and therefore more likely to attack police. This does not reveal whether or not the criminals in question were or were not more desperate and willing to kill prior to their last strike. Financially, the three-strikes law has had a strong effect in California since the cost of keeping an inmate incarcerated averages around $47,102 dollars a year. The more often the full force of the three strikes law is implemented the higher the cost for the state, which many of those opposed to the law claim could be used for other resources such as schools or even rehabilitation programs for inmates themselves.
Does Three Strikes Deter? A Non-Parametric Estimation was a study published by researchers at George Mason University in Virginia and said that arrest rates were 17 to 20 per cent lower for the group of offenders convicted of two-strike eligible offences, compared to those convicted of one-strike eligible offences. The authors concluded this indicated that the three-strikes policy was deterring recidivists from committing crimes.
A study written by Robert Parker, director of the Presley Center for Crime and Justice Studies at UC Riverside, states that, violent crime began falling almost two years before California's three-strikes law was enacted in 1994. The study argues that the decrease in crime is linked to lower alcohol consumption and unemployment.
A 2007 study from the Vera Institute of Justice in New York examined the effectiveness of incapacitation—depriving criminals of the opportunity to offend—under all forms of sentencing, mandatory or otherwise. The study estimated that if US incarceration rates were increased by 10 per cent the crime rate would decrease by 2 to 4 per cent, but also cautioned that "analysts are nearly unanimous in their conclusion that continued growth in incarceration will prevent considerably fewer, if any, crimes than past increases did and will cost taxpayers substantially more to achieve".
A study released by the National Bureau of Economic Research found that three-strikes laws like California's, while discouraging criminals from doing things like smoking pot or shoplifting, may push those who do commit crime to commit more violent offenses. The study's author, Radha Iyengar, argues that this is because under such laws, felons—knowing they could face a long jail sentence for their next crime—have little to lose by committing serious crimes rather than minor offenses.
A 2015 study found that three-strikes laws were associated with a 33% increase in the risk of fatal assaults on law enforcement officers.
- Armed Career Criminal Act
- Baumes law, 1926 four strike law
- Habitual offender laws, a comparison of similar laws in several countries
- HADOPI law
- Illegal immigration
- Incapacitation (penology)
- Indefinite prison sentence
- Mandatory sentencing
- One strike, you're out
- Prison-industrial complex
- Stanford Law School Criminal Defense Clinic
- United States Federal Sentencing Guidelines
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- proposition 184 at Ballotpedia
- The substantive provisions of Proposition 184 are codified in California Penal Code Sections 667(e)(2)(A)(ii) and 1170.12(c)(2)(A)(ii).
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- Arrigo, Bruce A. (2014). Encyclopedia of Criminal Justice Ethics.
- Spencer v. Texas, 385 U.S. 554 (1967) (“Article 63 provides: "Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."”).
- Brauchli, Christopher (7 August 2009). "Legal Absurdities". CounterPunch.
- FindLaw | Cases and Codes
- (Rummel was released a few months later, after successfully challenging his sentence for ineffective assistance of counsel and pleading guilty in a subsequent plea bargain.Solem v. Helm, 463 U.S. 277 Footnote 8, 28 June 1983
- Texas would later amend its Penal Code to remove the mandatory life requirement for a habitual offender, changing the sentence to 25-99 years or life Texas Penal Code Section 12.42(d).
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- Texas Penal Code Section 12.42(d)
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- "LA's homicide rate lowest in four decades". npr.org. 2011-01-06.
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- Johnson, Jeffry L.; Saint-Germain, Michelle A. (2005). "Officer Down: Implications of Three Strikes for Public Safety". Criminal Justice Policy Review. 16 (4): 443–60. doi:10.1177/0887403405277001.
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