Habitual Offender Laws: Three Strikes and
You're Out
Kenneth
Mentor J.D., Ph.D.
Department of Sociology and Criminal Justice
University of North Carolina Pembroke
This
is a draft of a submission included in the
Encyclopedia
of Crime and Punishment, Edited by David Levinson
"Three Strikes and You're Out" laws
have been enacted by lawmakers at Federal and State levels. These laws
require that judges sentence offenders with three convictions to long
prison terms. Aimed at repeat offenders, three strikes laws have been
enacted based on a belief that crime is increasing and that a tough response
will reduce crime rates. Three strikes laws are based on the premise
that a three-time offender has demonstrated an inability or unwillingness
to conform to the laws of society and should be incarcerated for an extended
period, perhaps for life.
The logic behind three strikes laws is simple.
If the cost of a behavior greatly exceeds the benefits, the behavior
is less likely to be chosen. If the behavior continues to be chosen,
in spite of the cost, the cost must be increased to reduce the incidence
of the behavior. This view, which represents a simplified version of
deterrence theory, typically does not examine the influence of social
factors. If we follow the logic of this argument to the extreme, we would
predict that by imposing the death penalty for jaywalking we would eliminate
this behavior. We have now introduced a proportionality problem. In effect,
the punishment does not fit the crime. Some have argued that three strikes
laws, when broadly applied, create problems regarding proportionality,
due process, and fairness.
Three strikes laws vary regarding the definition
of a strike, the number of strikes that trigger a sanction, the seriousness
of an act that can be counted as a strike, and the penalties enacted
in response to the final strike. These laws also vary in impact. Several
states have experienced significant, often unintended or unanticipated,
consequences as the result of three strikes laws. The laws have had relatively
little impact in other states. The variety of laws and the degree to
which the laws have been applied make it difficult to clearly assess
the impact of three strikes. In general, the reaction of criminologists
has been negative. Although there is evidence of potential deterrent
effects, the cost of deterring these crimes greatly exceeds the benefits
to the state.
Habitual Offender Laws
Although three strikes laws are a relatively recent concept,
the legal system has long recognized the issue of repeated offenders
and the potential for stricter sentencing as a result of repeat offenses.
As early as the 17th century both England and colonial America
passed criminal offender statutes that imposed strict penalties on
repeat offenders. Habitual offender laws have always been controversial
and in many cases the laws were abandoned before being extensively
applied. In spite of this concern, habitual offender statutes remain
popular as the public considers these laws a necessary remedy for offenders
who have not, and as some suggest, cannot, be rehabilitated. The call
for tougher sentences for habitual offenders typically leads to legislative
action followed by evidence that these laws ineffectively deter criminal
behavior and create addition problems for the justice system. The laws
are then weakened or abandoned. Typically, this cycle repeats as segments
of the public continue to call for efforts to "get tough on crime." Three
strikes laws are the most recent example of this cycle.
Judicial discretion
is at the core of the controversy over habitual offender laws. These
laws typically limit judicial discretion while widening prosecutorial
discretion. During the first half of the 20th century habitual
offender laws recognized the importance of judicial discretion and
provided the judge with a range of possible sanctions. In the United
States, the foundation for contemporary habitual offender laws was
established in 1926 as the state of New York mandated a sentence of
life imprisonment for third time offenders. Other states followed New
York's lead and by 1949 forty-eight states enacted mandatory sentencing
for repeat offenders. The majority of states, acknowledging that judicial
discretion is necessary in criminal proceedings, did not require judges
to impose mandatory sentences if circumstances compelled a different
result.
Beginning
in the 1980's calls for tougher sentencing, coupled with the perception
that
judges were "soft" on criminals, resulted in legislation
that limited judicial discretion. Judges were being required to impose
determinant sentences for repeat offenders, without regard to the particular
individual and circumstances surrounding the offense. "Get tough
on crime" rhetoric, along with cyclical public debate and subsequent
policy reaction, resulted in increasingly harsh punishments and a greater
reliance on incarceration. Judicial discretion was being replaced by
prosecutorial discretion, resulting in the continued politicization
of sentencing.
The
conservative political climate of the 1980's and 1990's was marked
by a general
impression that violent crime was on the rise, even though the overall
crime rate was lower than in previous years. In addition to this commonly
held misperception, the political focus was shifting to "career
criminals." The perception, supported by limited criminological
research, was that a small percentage of criminals were responsible
for a large percentage of the total crime rate. The policy response
to this perception was that if this small percentage of chronic offenders
could be identified and incarcerated, ideally for expended periods,
the crime rate would decrease. In addition, there was a growing belief
that rehabilitation was not possible. This impression was bolstered
by recidivism rates indicating that a large percentage of those who
had spent time in prison would commit additional crimes and eventually
return to prison. Again, this perception suggested that incarceration
for longer periods of time would provide a solution to the perceived
increase in crime.
Contemporary Three
Strikes Laws
Concerns about crime, although not necessarily based in reality,
led to the reconsideration of three strikes laws. The political climate
allowed these laws to be passed with relative ease. Between 1993 and
1995 three strikes laws were enacted by twenty-two states, most of
which already had habitual offender statutes, and the federal government.
While the State of Washington was the first to enact a modern three
strikes law, the California version of three strikes legislation is
the most controversial, and most heavily examined, of these laws. The
California experience provides a clear example of the context in which
three strikes laws were enacted. Even as the law was being written
there was clear evidence that the law would have a limited impact and
a cost that greatly exceeded any possible benefit.
Several events precipitated
the California three strikes law. In 1992 a man with a long criminal
record murdered Kimber Reynolds. Kimber's father began work on a draft
of the original version of the California three strikes law. A bill
based on this draft made it to the state legislature but was not enacted
into law. In response to this failure the father sought to use the
state initiative process to place the measure on the ballot. This process
was slow and it appeared that the required number of signatures would
not be collected. This changed with the 1993 murder of Polly Klass.
Her murder resulted in intense media coverage. This coverage accelerated
the signature gathering process and over 50,000 signatures were secured
within three days of her murder. The three strikes bill, previously
stopped in a legislative committee, returned to the California legislature.
While
the California law was being debated a RAND study indicated that
although there would
be a reduction in crime, the proposed law would lead to a 120% increase
in the prison budget and an overall implementation cost of $5.5 billion.
Despite evidence of the costs, indications that state revenues were
unavailable for corrections, claims that the law would lead to an explosion
of inmate populations, uncertainty regarding what offenses would count
as "strikes," and warnings about the impact of the law from
the father of Polly Klass, whose death resulted in widespread support
of the law, the initiative went to the voters. The three strikes initiative,
known as Proposition 184, was adopted by over 70% of the voters.
Three
strikes laws were soon enacted in other states. Although generically
referred to as "three strikes," the
various state laws differ greatly. While California's law includes a
wide range of crimes, other states are typically less inclusive. In most
cases, the three offenses must be defined as felonies. In some states
all felony convictions count as strikes. In other states the felony convictions
have to be associated with a violent offense. The states also differ
in the sanctions imposed and the amount of judicial discretion allowed
in choosing the sentence. While some states require life in prison as
a minimum sentence, other states set a maximum penalty that extends sentences
up to life imprisonment with no parole. Finally, the laws vary to the
degree in which they limit judicial and prosecutorial discretion, at
times offering the chance to redefine offenses to avoid the triggering
of three strikes provisions.
Impact of Three Strikes
Despite political rhetoric surrounding three
strikes, research indicates that these laws do not impact violent crime
in the states where enacted. In fact, research indicates that states
that have not adopted three strikes laws experienced greater decreases
in crime than states that have adopted such laws. There are many problems
associated with efforts to quantify the impact of three strikes. One
problem is related to the underutilization of these laws. Although California
has had over 40 thousand second or third strike convictions, many states
with three strikes laws have had fewer than 100 three strikes convictions.
Another problem with measuring the impact of these laws is related to
the fact that crime rates are impacted by many factors. Unless these
factors are statistically controlled, a difficult proposition considering
the number of relevant factors, any effort to statistically demonstrate
the impact of three strikes laws is likely to fail.
The
unintended consequences of three strikes laws, especially in relation
to the California experience, are troubling to many criminologists.
These laws have a significant racial impact, sending a disproportionate
percentage of non-whites to prison. These laws enhance an already disparate
racial impact, compounding existing racial disparity and putting more
members of minority groups in prison for longer periods of time. A
National Institute of Justice study lists additional concerns. The
first is related to the type of offender charged under three strikes.
While the public may believe that the law is directed at violent offenders,
and these laws were certainly marketed as efforts to punish the most
severe offenses and offenders, about 70 percent of defendants charged
under three strikes laws are nonviolent. The NIJ study also points
out that three strikes laws have had a major impact on plea-bargaining
and court congestion, with plea bargains dropping from 90 percent of
criminal cases prior to three strikes to 14 percent after three strikes.
This leads to a large increase in jury trials and a strain on already
limited resources. The reduction in plea bargains has also had an impact
on jail overcrowding, another adverse impact of three strikes. Crowded
jails or prisons lead to civil liberties issues, expensive construction,
and the release of other inmates to make room for mandatory three strikes
sentences.
Another
impact of three strikes is that all actors in the justice system see
and experience the inequalities that result from mandatory sentences.
As a result, prosecutors, judges, and juries who perceive injustice
when the punishment does not fit the crime find ways to circumvent
the intent of three strikes legislation. Researchers also point out
that the full impact of three strikes laws are not felt for many years.
Eventually many three strikes cases will move through the system, resulting
in long prison sentences, crowding, and an aging and very different
prison population. States with active three strikes laws will need
to spend billions on prison construction, diverting money from more
effective programs. Finally, researchers point out that although crime
rates in California are dropping, they were dropping prior to three
strikes. In effect, there is no evidence that the costs, in monetary
and social terms, result in decreased crime rates. (Flynn, et al.,
1995.)
Another
concern is that three strikes laws will increase crime rates as offenders
faced with a third conviction act in ways they may not have chosen
absent the severe threat of life in prison without parole. The increased
crime may be the result of efforts to conceal the crime or may be the
result of a "what do I have to lose" attitude. One study
demonstrated that three-strikes laws produce a 10-12 percent short-term
increase in homicides that would not have occurred without the laws.
The researchers projected a 23-29 percent long-term increase, which
implies additional homicides in roughly .15 percent of violent crimes.
This research projected a long-run social cost of $11 billion per year.
(Marvell and Moody, 2001.)
Conclusion
When fully enacted, three strikes law have
resulted in a range of negative consequences. Many of these consequences
were unintended or unexpected. Often the laws were not fully enacted.
In other cases the impact was so severe that state legislatures have
been forced to reduce the scope of their laws. The recent experience
with three strikes represents a short and controversial experiment. These
laws may be seen as harmless symbolic measures. However, these efforts
represent a significant waste of resources. The public has been mislead
into believing something is being done to address crime. The three strikes
experiment is informative to those interested in the process of policy
making. A critical evaluation of the content of a law, as well as the
process through which an idea becomes a law, is instrumental in any effort
to address social problems.
The issue of three strikes, and the habitual
offender statutes they represent, is clearly not closed. More study is
needed to demonstrate the strengths and weaknesses of these policies.
Further study can clarify issues regarding the political motivations
behind policy choices and the context in which these choices are made.
An examination of these laws also provides information regarding the
cost and limitations of incarceration, the motivation for committing
criminal acts, alternative sentencing policies, effective crime control
strategies, and a full range of issues relevant to society.
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