Kenneth W. Mentor, J.D., Ph.D.
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Habitual Offender Laws: Three Strikes and You're Out

Kenneth Mentor J.D., Ph.D.
Department of Sociology and Criminology
University of North Carolina Wilmington

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.)


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.


Austin, James, John Clark, Patricia Hardyman and D. Alan Henry. 1999. "The Impact of Three Strikes and You're Out." Punishment and Society 1:131-162.

Clark, John, James Austin and D. Alan Henry. 1997. "Three Strikes and You're Out": A Review of State Legislation. Washington D.C.: National Institute of Justice.

Flynn, Edith E., Timothy Flanagan, Peter Greenwood, Barry Krisberg. 1995. "Three-Strikes Legislation: Prevalence and Definitions." Critical Criminal Justice Issues. National Institute of Justice, NIJ 158837:122-133.

Greenwood, Peter W., C.P. Rydell, A.F. Abrahamse, J.P. Caulkins, J. Chiesa, K.E. Model, and S.P. Klein. 1994. Three Strikes and You're Out: Estimated Benefits and Costs of California's New Mandatory-Sentencing Law. Santa Monica: RAND.

Marvell, Thomas B. and Carlisle E. Moody. 2001. "The Lethal Effects of Three-Strikes Laws." Journal of Legal Studies 30:89.

Schichor, David. 1997. "Three Strikes as a Public Policy: The Convergence of the New Penology and the McDonaldization of Punishment." Crime and Delinquency 43:470-492.

Schichor, David and Dale K. Sechrest. 1996. Three Strikes and You're Out" Vengeance as Public Policy. Thousand Oaks: Sage.

Schmertmann, Carl P., Adansi A. Amankwaa and Robert D. Long. 1998. "Three Strikes and You're Out: Demographic Analysis of Mandatory Prison Sentencing." Demography 35:445-463.

Schultz, David. 2000. "No Joy in Mudville Tonight: The Impact of Three Strike Laws on State and Federal Corrections Policy, Resources, and Crime Control." Cornell Journal of Law and Public Policy 9:557.

Stolzenberg, Lisa and Stewart J. D'Alessio. 1997. "Three Strikes and You're Out: The Impact of California's New Mandatory Sentencing Law on Serious Crime Rates." Crime and Delinquency 43:457-469

Turner, Michael G., Jody L. Sundt, Brandon K. Applegate, and Francis T. Cullen. 1995. "Three Strikes and You're Out Legislation: A National Assessment." Federal Probation 59:16-35.

Tyler, Tom R. and Robert J. Boeckmann. 1997. "Three Strikes and You Are Out, but Why?: The Psychology of Public Support for Punishing Rule Breakers." Law and Society Review 31:237-265.

Vitielos, Michael. 1997. "Three Strikes: Can We Return to Rationality?" Journal of Criminal Law and Criminology 87:395-481.

Zimring, Franklin E. 1996. "Populism, Democratic Government, and the Decline of Expert Authority: Some Reflections on ÔThree Strikes' in California," Pacific Law Journal 28: 243-56.

Zimring, Franklin E., Gordon Hawkins, and Sam Kamin. 2001. Punishment and Democracy: Three Strikes and You're Out in California. New York: Oxford.


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