
Three Strikes
Laws A Real or Imagined Deterrent to Crime?
By Michael Vitiello
The
1990s were dominated by get-tough-on-crime measures, dramatically increasing
the nation’s prison population and the length of prison sentences. Those
measures culminated with the enactment of "three strikes"
legislation around the nation. Beginning with Washington State in 1993,
by the end of the decade, the federal government and over half of all
states had enacted some form of a "three strikes" law. Roughly
contemporaneous with these measures, crime rates have declined nationwide.
Advocates of severe incarceration policies have claimed that "three
strikes" laws are responsible for that decline.
Nowhere in the nation are the stakes higher
than in California. Called "the biggest penal experiment of its
kind in modern American history," due to its distinctive provisions,
California’s "three strikes" law accounts for the vast majority
of "three strikes" cases nationwide. Franklin E. Zimring,
Gordon Hawkins, and Sam Kamin, Punishment and Democracy:
Three Strikes and You’re Out in California at 22 (2001). Its sentence
enhancements include not just the widely advertised twenty-five-year-to-life
terms for third-strike felons, but also a doubling of the nominal sentence
for many second-strike offenders. Further, its provisions include residential
burglary as a possible qualifying strike. Finally, the third strike,
triggering the twenty-five-year-to-life term of imprisonment, may be
any felony. As a result, California accounts for over 90 percent of
all "three strikes" sentences nationwide.
"Three strikes" advocates in
California point to dramatic declines in crime rates since its passage
and claim victory. For example, former Attorney General Dan Lungren’s
office reported that "[s]ince the passage of ‘Three Strikes,’ .
. . the violent crime rate in California has dropped 26.9 percent with
a 30.8 percent drop in the six major crime categories." Office
of the Attorney Gen., Cal. Dep’t of Justice, "Three Strikes and
You’re Out—Its Impact on the California Criminal Justice System After
Four Years 3 (1998)." Secretary of State Bill Jones, who sponsored
the "three strikes" legislation as an assemblyman, has suggested
that three strikes is responsible for most, if not all, of that drop
in crime. Justice James Ardaiz, who assisted in drafting the
original bill, is even more explicit: "Crime in California has
declined dramatically since 1993. The only things that are different
are more police, tougher laws, and Three Strikes. . . . [W]here there
are a number of explanations for a given result, the simplest explanation
is usually correct. The Three Strikes Law is that explanation."
James A. Ardaiz, California’s Three Strikes Law: History, Expectations,
Consequences, 32 McGeorge L. Rev. 1, 35-36. Jones points to additional
support for the beneficial role of "three strikes": while
crime rates declined across the nation, the decline in California significantly
outstripped that in the rest of the nation. For example, over a six-month
period in 1995, crime declined only 1 percent nationwide while it dropped
7 percent in California. Jones, Why the Three Strikes Law Is Working
in California, 11 Stan. L. & Pol’y Rev. 23, 24 (1999).
While commentators disagree about whether
the law is theoretically justified, much of the debate focuses on empirical
data. If "three strikes" accounts for the dramatic decline
in crime, theoretical objections, including moral concerns about its
fairness, are not likely to move legislators or the public. And as indicated
above, "three strikes" supporters argue that empirical data
support their position.
However, despite the claims of "three
strikes" supporters, the data on which they rely do not withstand
close scrutiny. More recent empirical research supports many of the
claims of "three strikes" critics that the law simply cannot
deliver on its promises and insofar as it may have some marginal deterrent
effect, it comes at too high a cost.
Comparing California’s decline in crime
with the national average, as Secretary of State Jones does when he
asserts that "three strikes" accounts for California exceeding
the decline in crime nationwide, cuts both ways. New York, not California,
showed the sharpest decline in crime during the time in question. While
some of New York’s policing policies have raised serious civil rights
concerns, it was not one of the states that adopted a "three strikes"
law during the 1990s. Hence, its decline in crime cannot be attributed
to such legislation.
A number of recently published studies
also raise doubts about the true effectiveness of "three strikes"
laws in lowering California’s crime rate. For example, within California,
counties that aggressively enforce the law "had no greater declines
in crime than did counties that used it far more sparingly." See
Crime States Capture Both Arguments, Contra Costa Times, Feb.
27, 2000, at A1. One study found that crime dropped by 21.3 percent
in the six most lenient "three strikes" counties, compared
to a 12.7 percent drop in the toughest counties.
A recently published book, Punishment
and Democracy: Three Strikes and You’re Out in California, reports
the results of the most comprehensive study of "three strikes"
to date. The authors’ findings suggest that, prior to "three strikes,"
crime rates were declining already and, after "three strikes"
they continued to decline at about the same rate, suggesting that whatever
effect "three strikes" had, it was small at best. The book
also notes that, partly because "three strikes" casts such
a broad net, the offenders arrested under its provisions were no more
likely to be high-rate offenders than non-"three strikes"
arrestees. Nor were they more likely to commit violent offenses.
Although its proponents originally explained
that "three strikes" would work because it would incapacitate
high-rate offenders, the decline in the crime rate came too early to
be explained on that basis—"three strikes" is a sentence enhancement
provision and the enhancements do not kick in immediately, whereas the
decline in the crime rate occurred immediately. As a result, "three
strikes" proponents were forced to shift their explanation—the
law deterred potential offenders.
The authors of Punishment and Democracy
attempted to measure the law’s deterrent effect. In certain instances,
depending on which method the authors used, they did find a marginal
deterrent effect. But the effect was extremely small and cannot explain
the significant overall decline in the crime rate. Punishment and
Democracy also addressed the claim of the law’s proponents that
a sharp decline in the crime rate followed passage of the law. Contrary
to this claim, the authors found that the decline in the crime rate
preceded passage of the law. Further, were "three strikes"
the cause of a significant part of the decline, the rate of decline
should have increased after its passage. Instead, the rate of decline
remained constant, suggesting that the causes of the decline that were
operating prior to the passage of the law continued to be the primary
reason for the drop in crime rates.
Empirical studies suggest that California
would have experienced virtually all of its decline in crime without
"three strikes." At the same time, "three strikes"
will have a significant cumulative effect on the size of the prison
population, an expense that will grow over time. One effect will be
to increase the number of older prisoners, a group that represents a
low social risk because most offenders become less criminally active
as they age. Not only are older prisoners not likely to commit crimes
if set free, but they cost the state much more to keep incarcerated
than younger, healthier offenders.
None of this comes as a surprise to many
commentators who doubted the wisdom of "three strikes," certainly
as it was enacted in California. But none of us who opposed "three
strikes" can take much comfort in knowing that our concerns were
borne out. The important policy question is how can we reform the law
to avoid its excesses?
Few politicians were willing to oppose
"three strikes" during its passage. And while most politicians
in the past decade have feared being labeled as soft on crime, that
fear was exacerbated during the legislation’s passage. Aided by the
kidnapping and murder of young Polly Klaas, Mike Reynolds, the father
of a murder victim, pushed the bill through the legislature with remarkable
resolve. He was unwilling to compromise or allow amendments to the bill
(or to a virtually identical ballot initiative). His sway with the legislature
was extraordinary, with most afraid that if they opposed him, he would
portray them as soft on crime. Since the law’s passage, passions have
cooled somewhat. But one legacy of the charged political environment
in which the law passed is that its amendment requires a supermajority.
As a result, even those few politicians who are now willing to propose
amendments face an uphill battle at best.
In theory, both the California and the
U.S. Constitutions protect against the imposition of disproportionate
criminal penalties. But outside of the death penalty context, that protection
is more theoretical than real. During the 1970s and 1980s, the California
Supreme Court was active in reviewing indeterminate sentences and developed
a body of case law wherein it overturned numerous sentences as excessive
in violation of California’s protection against "cruel or unusual
punishment." See, e.g., People v. Dillon, 668
P.2d 697 (1983). A number of trial courts relied on that case law in
striking down some of the more extreme "three strikes" sentences
shortly after the law became effective. Despite supreme court precedent
and considerable sentiment among trial courts that some "three
strikes" sentences were excessive, no California district court
of appeal agreed. See, e.g., People v. Ayon, 53
Cal. Rptr. 2d 853 (Ct. App. 1996). In light of unanimity among the district
courts of appeal, the California Supreme Court has shown no inclination
to revisit the question.
More recently, in a denial of certiorari,
four U.S. Supreme Court justices suggested that some "three strikes"
sentences might violate the Eighth Amendment’s prohibition against cruel
and unusual punishment. Riggs v. California, 525 U.S. 1114 (1999).
Since then, the Ninth Circuit has held in three separate cases that
a "three strikes" offense violates the Eighth Amendment. Andrade
v. Attorney General of California, 270 F.3d 743 (9th Cir. 2001)
and see ‘Three Strikes’ Ruled Unjust in Shoplifting Convictions—U.S.
Appeals Court Decision May Reduce Terms for 340 Inmates, S.F. Chron.,
Friday, Feb. 8, 2002, at A-1.
Meaningful review of "three strikes"
sentences might weed out many of the cases in which twenty-five-year-to-life
sentences seem excessive. But two important questions remain. First,
even the Ninth Circuit’s decisions may be severely limited in their
scope. All three cases decided thus far have involved petty theft as
the third strike offense. Under California law, petty theft is a "wobbler,"
an offense that may be a misdemeanor or a felony. Under the circumstances
of the cases before the court, the offenders’ records have led to the
crime being treated as a felony. Once escalated to a felony, the crime
becomes the third strike. The effect of the unique features of California’s
sentencing laws is that what might be a misdemeanor ends up resulting
in a life sentence. If the Ninth Circuit’s approach turns on that feature
of the law, the impact of these cases is quite limited, perhaps to as
few as 300-350 cases out of over thousands of "three strikes"
cases. For example, if so limited, the Ninth Circuit’s approach would
offer little hope for an offender whose third strike was a minor possession
of narcotics or marijuana offense.
The other important question is whether
the Ninth Circuit’s decisions will survive U.S. Supreme Court scrutiny.
Earlier this year, the Supreme Court granted California’s petition for
a writ of certiorari. As indicated earlier, four justices raised concerns
about "three strikes" sentences, again in the context of a
theft "wobbler" case. But whether a fifth justice would agree
is open to serious question.
The Supreme Court has overturned a term
of imprisonment as a violation of the Eighth Amendment in only one case.
In Solem v. Helm, 463 U.S. 277 (1983), the Court struck down
a true life sentence imposed on a habitual offender whose criminal record,
although extensive, did not include any crimes of violence. The offense
that triggered the life sentence was for writing a bad check, an offense
described by the Court as passive and nonviolent. Although a majority
of the Court refused to overrule Helm when it next considered
the question, the Court did uphold a true life sentence for possession
of more than 650 grams of cocaine. Harmelin v. Michigan, 501
U.S. 957 (1991). In addition, prior to Helm, the Court upheld
a parolable life sentence in Rummel v. Estelle, 445 U.S. 263
(1980), and a sentence of forty years for possession of marijuana in
Hutto v. Davis, 454 U.S. 370 (1982). Were the Court to apply
that case law to "three strikes," whether it would find any
given sentence a violation of the Eighth Amendment is uncertain.
"Three strikes" requires a significant
minimum sentence, one that can be reduced by at most 20 percent for
good time. Hence, a "three strikes" offender must serve a
minimum sentence of at least twenty years. That may seem significant,
and in some rough sense, disproportionate to an offender’s third-strike
offense (for example, possession of a small amount of drugs). But the
punishment is less severe than, say, the offender in Hutto v. Davis,
whose forty-year sentence was not unconstitutionally excessive. Instead,
like Rummel, the offender in Rummel v. Estelle, the offender
is not condemned to a true life sentence. Even if the long minimum sentence
has the practical effect of a true life sentence—for example, when it
is imposed on an older offender who as a practical matter will probably
die in prison before serving his entire sentence—the case may not come
within Solem v. Helm. While the Court struck down a sentence
imposed on a habitual offender, his entire criminal record did not include
a crime of violence. At least for those offenders whose earlier crimes
have included crimes of violence, their earlier criminal records may
be enough to take them out of Helm’s narrow holding. Perhaps
an older offender whose minimum sentence may be the equivalent of a
life sentence and whose two strikes were residential burglaries and
whose third strike is a relatively minor offense, like possession of
drugs, could invoke Eighth Amendment protection. But those cases may
be too few to have much of an impact on the problem created by "three
strikes."
The issue bears watching. Excessive punishment
raises serious moral questions. Beyond the moral question, "three
strikes" opponents have mounting empirical evidence that "three
strikes" cannot deliver on its overblown promises. But legislative
reform, difficult under normal circumstance due to politicians’ fears
of being labeled soft on crime, is doubly difficult because of the supermajority
requirement. We are left hoping that the courts will save us from our
own excesses; whether they will is very much up for grabs.
Michael Vitiello is a professor of law
at McGeorge School of Law in California.
Bibliography
Linda S. Beres and Thomas D. Griffith,
Did ‘Three Strikes’ Cause the Recent Drop in California Crime?
An Analysis of the California Attorney General’s Report, 32 Loy.
L.A. L. Rev. 101 (1998).
Ryan S. King and Marc Mauer, Aging Behind
Bars: "Three Strikes" Seven Years Later (2001) (discussing
a study conducted by the authors).
Mike Males and Dan Macallair, Striking
Out: The Father of California’s "Three Strikes and You’re Out"
Law, 11 Stan. L. & Pol’y Rev. 65 (1999) (discussing a study
conducted by the authors).
Michael Vitiello, Three Strikes: Can
We Return to Rationality? 87 J. Crim. L. & Criminology 395 (1997)