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Three Strikes, You’re Out: Incarceration Law

Farhan Buvvaji

Edited by Mac Kang and Vedanth Ramabhadran


Rampant incarceration continues to be a defining characteristic of the United States justice system. With an incarceration rate of 629 people per 100,000 alongside a recidivism rate of 44 percent, inmates are consistently trapped in a lifelong cycle of trials and prisons [1] [2]. Rehabilitation and reintegration have simply become an afterthought. This combination of incarceration and rearrests has not only tarnished lives but has also overburdened the justice system through countless trials, resource shortages, and administrative backlogs. 

One of the primary causes for prolonged incarceration and these justice system burdens is the ease with which lengthy convictions can be achieved. For instance, more than 60 percent of inmates are convicted under mandatory minimums, which refers to a minimum duration for prison sentencing that is statutorily defined for certain crimes [3]. In federal law, for instance, the mandatory minimum for possessing a firearm while committing a drug crime is at least five years of prison [4]. 

The history of such sentences is rooted in the War on Crime and War on Drugs political agendas of the late 1970s and early 1980s, where Congress began rapidly lengthening sentencing and increasing policing. The first mandatory minimums were established in 1984 through the passage of the Comprehensive Crime Control Act, setting off the trend of mass incarceration the nation experiences to this day [5]. In fact, the number of people in prisons has crossed 2 million compared to just 500,000 in 1980, a lasting legacy of these policies. 

While mandatory minimums have garnered widespread attention from both proponents and critics, a specific type of mandatory minimum has become increasingly controversial since the early 2000s: three-strike laws. Although specific guidelines vary from state to state, three-strike laws refer to a sentencing structure that maximizes punishments for repeat offenders. Generally, these laws mandate 25 years of imprisonment or a life sentence after a third violent felony conviction [6]. Through the imposition of such a harsh penalty, these laws aim to deter repeat offenders while improving public safety by removing habitual offenders from local communities. 

Quickly after their implementation, three-strike laws faced a constitutional challenge. Critics argued that these laws violated the 8th Amendment by sentencing "cruel and unusual" punishment for third-strike felonies that were disproportionate to the crime committed. This led to the Supreme Court hearing two landmark cases: Ewing v. California and Lockyer v. Andrade

Gary Ewing was arrested for stealing golf clubs shortly after being released from parole following three burglary convictions and a robbery. California, according to the statutory guidelines of their three-strike laws, sentenced him to 25 years to life. The case was later appealed to the Supreme Court as Ewing argued that the 25-year sentence was disproportionate to his crime and thus violated his 8th Amendment rights [7]. In a 5-4 decision, the Supreme Court concluded that three-strike laws are constitutional since repeat offenses justify the severity of his charges and align with states' goals to improve public safety. This reasoning was also used in Lockyer v. Andrade, where the Supreme Court ruled against Leandro Andrade, who had two prior felony counts before being arrested for stealing videotapes [8]. These rulings were instrumental in promoting three-strike laws and led to a widespread adoption of such statutes across the nation. 

Currently, 28 states and the federal government employ three-strike laws, which have quickly expanded since their first introduction in Washington, D.C. in 1993 [6]. Yet, the results of these laws on crime and incarceration have varied significantly across these states as statutes that model three-strike laws differ in severity. Two models in particular have emerged, one made by Washington D.C. and the other employed by California. While both models have a similar structure of maximizing sentences for third-time felonies, they differ in one critical aspect: the scope of crimes that can be considered as potential third strikes. This difference is significant as it explains one model's notable success compared to disputed results for the other. 

The California model for three-strike laws can be best described as hyper-aggressive due to the broad scope of felonies that can be counted as a third-strike. In comparison, only 12 percent of all felonies could be counted as strikes in Washington D.C., while California once included all felonies as possible strikes [9]. Some of the felonies once included minor crimes such as marijuana possession or the theft of food, resulting in more than 75 percent of convicts sentenced under California's three-strike laws being charged with crimes not classified as "violent" crimes [9]. Additionally, California's three-strike sentencing duration was the harshest in the nation as the penalty had to be a longer sentence, between 25 years to life or triple the initial sentence. The immediate results were highly burdensome on the state prison system, as the trial and fiscal burdens overwhelmed state resources. The backlog of cases was so steep that some prosecutors reported having to forego prosecution to reduce the number of cases.

Although California saw a decline in crime after the passage of third-strike laws, the California Policy Lab's analysis of these statutes concluded that the state's third-strike laws were not the reason for their lower crime rates [10]. While the strikes had a "modest" deterrent effect on less serious crime, the study concluded that it had no relationship with overall crime rate changes during the 1990s. Moreover, compared to states that didn't pass third-strike laws, California experienced similar crime rate reductions for the following two decades [10]. 

Washington D.C., on the other hand, primarily focused on violent crime when applying three-strike laws. Roughly 98 percent of criminals convicted committed a violent felony as their third strike, and 92 percent had two prior violent felonies [9]. Thus, compared to California, the Washington model was successful in specifically targeting repeat violent offenders while not overwhelming the justice and prison system through hundreds of lengthy cases and sentences. As a result, California amended its three-strike laws in 2012 to narrow its application to violent offenses while resentencing those who were convicted of nonviolent crimes. 

Given the success of three-strike laws in curbing violent crime, reforms have been passed to ensure statutes resemble the Washington model over the California method. For instance, Senator John Cornyn (R-TX) introduced and passed the First Step Act in 2018, which removed three-strike laws for nonviolent drug offenses [11]. By strictly confining three-strike laws to violent crime, court systems don’t face extensive burdens while effectively improving public safety through only incarcerating habitually violent offenders. Comparatively, a three-strike law sentencing procedure that has a broad scope of felonies only leads to extensive court and prison burdens while needlessly worsening the mass incarceration crisis by imprisoning nonviolent offenders.

 

[1] Criminion, Nine states have reduced their prisoner population by 30%. what do they have in common? Criminon International (2023), https://www.criminon.org/who-we-are/groups/criminon-international/nine-states-have-reduced-their-prisoner-population-by-30-percent/#fn:5 (last visited Mar 6, 2024). 

[2] Incarceration Rates by Country 2024, Incarceration rates by country 2024 (2024), https://worldpopulationreview.com/country-rankings/incarceration-rates-by-country (last visited Mar 6, 2024). 

[3] Quick facts on mandatory minimum penalties, ussc.gov (2016), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Mand_Mins_FY16.pdf (last visited Mar 18, 2024). 

[4] Jeremy Gordon, Firearm Possession during a drug trafficking crime or CRIME OF VIOLENCE Law Office of Jeremy Gordon (2022), https://www.gordondefense.com/federal-crimes/federal-drug-crimes/with-firearm-possession/#:~:text=Possession%20of%20a%20Firearm%20in%20furtherance%20of%20either%20a%20drug,seven%20years%20in%20federal%20prison. (last visited Mar 17, 2024). 

[5] Tanya Golash-Boza, Column: 5 charts show why mandatory minimum sentences don’t work PBS (2017), https://www.pbs.org/newshour/politics/5-charts-show-mandatory-minimum-sentences-dont-work (last visited Mar 17, 2024). 

[6] Melissa Bender, “three strikes” sentencing laws FindLaw (2023), https://www.findlaw.com/criminal/criminal-procedure/three-strikes-sentencing-laws.html (last visited Mar 18, 2024). 

[7] Ewing v. California, Legal Information Institute (2003), https://www.law.cornell.edu/supct/html/01-6978.ZS.html (last visited Mar 17, 2024). 

[8] Lockyer v. Andrade, Oyez, https://www.oyez.org/cases/2002/01-1127 (last visited Mar 17, 2024).

[9] David Lacourse, Three strikes, you’re out: A Review Washington Policy Center (1997), https://www.washingtonpolicy.org/publications/detail/three-strikes-youre-out-a-review (last visited Mar 17, 2024). 

[10] Mia Bird, Three strikes in California California Policy Lab (2022), https://www.capolicylab.org/wp-content/uploads/2022/08/Three-Strikes-in-California.pdf (last visited Mar 18, 2024). 

[11] Ashley Nellis, The first step act: Ending mass incarceration in federal prisons The Sentencing Project (2023)


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