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.)
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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