Although popular, 3-strikes laws are seen as rarely used


So-called “three strikes and you’re out” laws, most of which provide for life prison terms for violent offenders convicted of a third serious crime, are rarely used by the Federal Government and the 22 states that have enacted them, despite the broad popularity of such laws.

California is the only state in which the statute has been widely used, resulting in the imprisonment of thousands of repeat felons for both violent and non-violent crimes, according to the study conducted by the Campaign for an Effective Crime Policy, a national coalition of officials who support criminal justice reform and oppose politically expedient solutions to the crime problem. But California’s wide application of the statute also has strained its criminal justice system, including an estimated $4.5 billion in new prison construction that will be required over the next five years.

Only nine convictions have been obtained under the Federal version of the law, which was approved in 1994 as part of omnibus anti-crime legislation, while 24 cases are pending, according to the study.

 The study, said to be the first to attempt to survey the application and impact of  “three strikes” laws, found that several states with the statutes, including Colorado, New Mexico, North Carolina and Tennessee, have yet to obtain a single conviction. Wisconsin, the study noted, had obtained one conviction under its “three strikes” measure.

“Most jurisdictions have drafted laws much more narrowly than California and for this reason, or because they have not seen the need, prosecutors nationwide have not extensively applied three strikes legislation,” the study said. The group’s analysis of the laws was said to have been “hampered by variations among them which make comparisons difficult,” “limited data” and “the difficulty of isolating the impact of a specific law from other factors which may affect behavior.”

California has used the law to imprison 1,300 offenders convicted of third-strike felonies and over 14,000 second-strike felonies, the report said. But questions have been raised about how evenly the law is applied, the report said, noting that more than twice as many people convicted of marijuana possession (192) were sentenced under the provisions than for murder (4), rape (25) and kidnapping (24) combined.

California’s zeal in using the law has not come without a price, the study said. “Because of the severity of the penalty in these cases, many defendants are going to trial in third-strike cases. Second- and third-strike cases accounted for only 3 percent of the filings in Los Angeles, but accounted for 24 percent of the jury trials. The effects of the increased workload on judges, prosecutors and defense attorneys and the delay caused in other criminal and in civil cases have been raised as matters of great concern,” the report stated.

[The California Judicial Council reported last month that the law continues to increase the workload for the state’s criminal courts, in some cases by 10 percent or more.]

The law also has been employed by some California prosecutors as a plea-bargaining tool. In San Diego, three-strikes charges are reduced in 20 percent to 25 percent of the cases, while in Sacramento, plea bargains have reduced the number of three-strikes cases by 67 percent. The report noted that the law is not used in drug cases in San Francisco, but it is in Los Angeles.

The report also noted concerns that the law is being applied disproportionately to minorities, especially blacks. “A study in California indicates that African-Americans are sent to prison under the law 123 times as often as whites. Forty-three percent of the third-strike inmates in the state are African-American, though they make up 7 percent of the state’s population and 20 percent of its felony arrestees,” the report said.

The report’s author, Walter Dickey, a former Wisconsin corrections commissioner who is now a law professor at the University of Wisconsin, speculated that in many states, the laws are narrowly drawn and can be applied only to specific crimes. He added that other sentencing provisions such as requiring convicts to serve mandatory minimum terms before becoming eligible for parole or those that target habitual offenders provide “quite adequate sentencing authority.”

“I think there are a lot of prosecutors who, in the exercise of their of discretion, don’t think it’s appropriate,” Dickey told Law Enforcement News. “They feel that because so many criminal statutes have had their penalties increased in recent years, they’ve got sufficient authority and leverage in plea-bargaining. There’s certainly evidence that there’s a fair amount of that going on in California.”

Dickey said he believes that the push for three-strikes legislation was “to a great extent a political opportunity that was seized by politicians and advanced for the apparent reason of more effective crime control, but really for political gain. The politicians got the gain, the people who deal with offenders every day  never feeling any great need for it  don’t make great use of it or do so in more subtle and discreet sorts of ways.”

Quinton County, Pa., District Attorney Ted McKnight, who is president of the Pennsylvania District Attorneys’ Association, said the law has rarely been used in his state because it has only been in effect since last year. He added that Pennsylvania’s three-strikes law gives judges broad discretion in imposing sentences on those convicted of violent offenses, including the authority to sentence three-time losers to 25 years to life in prison. “Our association argued against legislation that called for mandatory life because it in effect creates a geriatric population in state prisons,” he noted.

Pennsylvania’s three-strikes law, which applies only to violent crimes, is different from others on the books, McKnight pointed out, because it provides staggered sentences of 5 years, 10 years and then 25 years to life for each strike against a defendant.

“The object was to get the violent offender off the street and incarcerated during his violent years,” he noted. “Various studies indicate that after a certain age the number of violent offenses dramatically increases. Our law covers that time frame. Rather than providing a welfare system for aged criminals, we tried to provide incarceration for the potentially violent individual during his most violent years.”

Based on his own experiences in the criminal justice system, Dickey said he’s personally skeptical about the deterrent effect of the three-strikes laws. “When you look at our serious crime and violence problem, I think the bumper-sticker kinds of solutions deflect us from seriously pursuing more effective ways of dealing with the problems. I’m just tired of politically attractive sound bites, when we’ve got real problems and we ought to be dealing with them in more thoughtful and complete ways than this.”

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Published in Law Enforcement News
Nov. 15, 1996.
© 1996, LEN Inc.