Review of Three Strikes Legislation
Michael, Vitiello. 1997.
“Three Strikes” is a controversial and powerful piece of legislation that began in California. It was started by the death of Kimber Reynolds, June 29, 1992. Kimber was killed in an attempted robbery by a convicted rapist. Devastated her father, Mike Reynolds, convened with several influential people in his town and drafted the infamous “Three Strikes Legislation.” Her father tried to get the legislation passed on the house floor, though was easily defeated. Shortly after the first incident, a little girl by the name of Polly Klass, 12 years old, was abducted from her home and killed by a convicted felon with an exceptional record for violent offenses that had been let out early for “good time” earned in the penitentiary. After several attempts by Mr. Reynolds to pass the law it was not until the Polly Klass incident that the Governor of California, Pete Wilson, would support and stand behind the law (Schiraldi 1994). It was this case of Polly Klass, abducted from her home on October 1, 1993, that set the “Three Strikes” into full motion. The father of Kimber Reynolds contacted Marc Klass, Polly’s father, and had asked for his support in rallying the help that they needed to put this legislation back in front of the house, but he also knew that if he could do this by voter initiative that the house could not defeat the legislation, nor could it be amended unless it had two-thirds of the votes in each house. With in days of Reynolds getting the initial support of Marc Klass, the signatures on the initiative ballot increased ten-fold (Vitiello, 1997).
Mr. Thornbury (1995) provides in his presentation on “three strikes” that the poor draftsmen ship of “three strikes” has created “confusion and uncertainty in the application of the law” and further identifies many problems with applying the law. A number of legislatures saw this problem in the beginning and proposed alternatives to the bill that would single out violent offenders and be a better use of resources. Reynolds, however, was relentless and did not trust the legislatures and did not want the law amended or changed it in any way, it was his baby. Thus, he continued with the initiative even after a promise to abort continuation after a very similar law was put into effect (Vitiello, 1997).
“Three Strikes” was also symbolic of how Americans felt during this time about crime. Crime that society felt neither the law, nor the government had control of and their philosophy was general deterrence (punitive). “Three Strikes” was a public vengeance to punish quickly, with definite reprocautions and to set them severe enough to stop criminals from continuing to commit crimes (Zimring, 1993). Another benefit that the legislation had towards its enactment was the fact that the law/initiative arose during an election year. Politicians (Republican and Democrat alike) seized Americans fear of crime as the head lines for their new election campaigns, “get tough on crime” and it was unchallenged by any other issue (Vitiello, 1997). The public banded its support behind “three strikes” not being fully aware of what they were getting behind, the same mistake that Mr. Klass realized though it was too late. Unfortunately the supporters (general public) failed to read the fine print of the law before signing the initiative, they were sold on the pretense that the bill was targeting “violent” offenders only, for “violent crimes” (Schiraldi 1994).
In Florida; escape, lewd and indecent conduct, aggravated stalking, any forcible felony, and aggravated child abuse is considered a strikable offense (Irwin, 2002). Life if the third strike involved first-degree felony, 30-40 years if second-degree felony, 10-15years if a third degree felony. Florida’s change the existing law dealing with habitual offenders (which was implemented in October 1,1995) was the length prescribed to offenses and adding the phrase “violent career criminal” to the list of offender types (Irwin, 2002). The legislation that was in place before “three strikes” already dealt with habitual violent felony offenders and habitual felony offenders and many of these criminals were already serving longer sentences. The statute limits prior felonies to different degrees felonies to qualify for the different sentencing enhancements or leaves it at the discretion of the court to impose a sentence as it sees fit for the protection of the public (Vitiello, 1997). Thus the Three Strikes initiative had little impact on the former sentencing guidelines that were already in place; it did however add to the list several non-violent crimes to the list of harshly punishable crimes (Irwin, 2002). In Florida the law also provides that the defendant is allowed “gain time” up to fifteen percent to reduce his sentence. In Florida; any forcible felony, Aggravated stalking or child abuse, lewd or lascivious or indecent conduct, escape, or felony violation with the use of a firearm are on the list of third strikable offenses (Vitiello, 1997). Florida also allows a wash out provision that provides that the current felony must have been with in five years of the last conviction or five years from their release date. Florida limits prior felonies to violent felonies to qualify for the sentencing enhancements (Vitiello, 1997). Florida allows four strikes, where as California allows only two or three.
California’s three strikes law; which is the harshest in the nation; considers some misdemeanors, e.g., shoplifting, as felonies (King, 2001). One case cited is the case of Landro Andrade who was sentences 50-years-to-life for shoplifting. He tried to steal nine video tapes from two K-mart stores. Now trying to justify the use of very limited resources here is just impossible (Marshall, 2002). It is the cases that normally don’t make the headline news that are experiencing the horrible effects of the three strikes laws. These few cases are representative of how the law is wrongly applied and how it weighs on tax payers even more. A few examples: Case of Michael Garcia, a 35 year old Mexican American and heroin addict, who stole a package of meat worth $5.62. Garcia, his mentally retarded brother, and step mother had run out of money, the package of meat was for his family to eat. For this, Mr. Garcia is now serving a life sentence in a California prison. He has a history, but not the type of history that we would expect for a prisoner serving a life sentence. Many other cases are available in various pieces of literature as to how this law is wrongly applied in certain cases (Schiraldi 1994).
In California’s law the inclusion of non-violent and non-serious offenses to qualify for sentencing enhancements results in abuse of the legal system (Vitiello, 1997). Example: of the law being abused, Jerry Dewayne Williams, the “pizza thief,” 27 years old and was sentenced twenty-five-years -to-life in prison. His crime was stealing a slice of pizza. Although this was a misdemeanor, his prior crime of robbery, unauthorized use of a vehicle, and possession of a controlled substance; this prior crime bumped his current misdemeanor up to a felony (Vitiello, 1997). Another example Vitiello (1997) provides is the case of 35 year old Kevin Weber, a cookie thief that received a sentence of twenty-six years for entering a closed restaurant and stealing three cookies. These cases are the cases that are backing up the system with trials, appeals, and so on. Defendants have to fight for their lives for petty crimes (Schiraldi 1994). These cases are clear representation of how the law is being unjustly applied and why tax payers should be opting to a make a change.
Seventy-five percent of the cases seen in the “Los Angles District attorney’s offices are cases being brought up under the three strikes law for non-violent and non serious crimes” (Schiraldi 1994). How is that serving the initial purpose, keeping violent offenders behind bars? How resourceful is such a law?
Three Strikes legislation in California Penal Code section 667 limits probation for second or third time offenders. It provides that the length of time between prior offenses and the current charge applies no effect to how the offender is sentenced, (Vitiello, 1997) thus the law does not consider any type of criminal “wash out” period.. The law states that for certain offenses the prison sentence be served consecutively, that they can not be served concurrently. The law allows for juvenile offenses to be used as “strikes” in adulthood for increasing sentencing and allows for any juvenile or defendant under the age of eighteen who is convicted of a felony and already has a “serious or violent” felony be sent to a state prison not a youth facility (Vitiello, 1997). The California law provides that the second offense can be non-violent or non-serious and still subject the person to sentencing enhancements. Section 667 limits the defendant’s and the prosecutor’s ability to plea bargain and further takes away judicial discretion (Vitiello, 1997).
In California where the law is the most stern, many persons in the political arena have expressed their disapproval of the law. For example a superior court judge, Lawrence Antolin, stated that he felt the law was unconstitutional because “it metes out cruel and unusual jail terms” for non-violent offenders and “robs justices of the power to evaluate the nuances of individual cases” (McShane,1997). Many Judges have realized the unjust impact of such laws and have tried in various ways to find loop holes in the law and just disregard the law for the better of the people and the system, e.g. changing charge status from felony to misdemeanor to avoid sentencing enhancements (McShane, 1997). These discrepancies can be found in various jurisdictions all over California where the law was put in by initiative and difficult to change. In other situations victims are taking a stand against such laws. One notable case; a defendant was on his third strike and the victim (71 years old) refused to testify against the defendant upon learning that he might be sentenced to life in prison for breaking into her vehicle (San Francisco Daily Journal, April 25, 1994 as cited by Irwin, 2002).
The list of strikable offenses does include violent offenses such as rape, murder, robbery, kidnapping, the use of firearms to commit another felony, ritual abuse of a minor, etc. many of the violent criminals that society thought they would be keeping behind bars with this initiative. But the harm is in the non-violent and non-serious crimes that are also included in the bill. These non-violent and non-serious offenders are not those who pose a threat to society, though they are a nuisance, nor are they worth billions of our tax dollars for incarceration.
The cost of the horrendous prison industry that has been constructed, as of 1995, to operate the entire criminal justice system, expenditures approximated to exceed $112 billion yearly (Irwin, 2001). But this figure leaves out several influential numbers and factors, such as the cost of elderly health care, care for fostered children as a result of their parents’ incarceration, added families on welfare, lost tax revenues, and the added use of otherwise public resources to fund the monstrous prison industry (Ambrosio, 2002). Use of these limited resources to fund the prisons is most prominently at the cost of higher education (Vitiello, 1997 & Greenwood, 1994) and many other needed public services (Gold, 1995).
If just half of these non-violent offenders were sentenced to some other form of punishment and treatment, e.g. short term in patient rehabilitation, short prison sentence, in house arrest or any number of options available, tax payers would save millions in prison costs (Vitiello, 1997). The California Department of Corrections provides that a great portion of offenders sentenced under “three strikes” and other habitual offender laws are sentenced for non-violent crimes (King, 2001). “The majority of crimes had value losses below $100”, petty theft and drug possession charges (Department of Justice, 1992). And lastly, “Over 600 inmates have been sentenced to twenty-five years to life as three strikers for drug possession, and another 1,500 have received such sentences for property crimes in California” (Irwin, 2002). These statistics are frightening, the resources would be better spent providing alternatives for these persons and the focus needs to be placed back on real criminals.
As just mentioned America’s continual desire to punish drug users in the war on drugs has lead to the change in ratio of violent offenders (40%) to non-violent offenders (60%) (Vitiello, 1997) and these numbers have done so under the three strikes provisions. Of the inmates incarcerated in Federal prisons approximately one fifth have no record of violence or extensive criminal activity, but are serving enhanced terms for simple drug or possession charges (N.C.J.C., 2002). Incarcerating one (or sixty) drug users does little to reduce drug use, but treating one user helps to cut the demand (Vitiello, 1997). The RAND institute reported that “dollar for dollar, programs encouraging young people to stay in school and out of trouble prevent five times as many crimes as stiff penalties imposed on repeat offenders using “three strikes” laws” (Vitiello, 1997).
Incapacitation of habitual offenders may in fact inhibit their criminal activity for the time during which they are incarcerated, but it is proven that most criminal careers are affected by their age and in fact criminals “age out” of their criminal careers (Irwin, 2002). Statistics have provided that most criminal activity reaches its peak in individuals around late adolescence to early twenties and that it steadily declines thereafter. Three strikes laws tend to punish most severely older criminals that are very near aging out of their criminal careers (King, 2001). With this information in mind; the incapacitation effect would seem to have a more promising effect on a twenty-year-old than a fifty-year-old (King, 2001). It is a poor use of resources if we are incapacitating a criminal at the end of their criminal career (Vitiello, 1997; McShane, 1997; Thornbury, 1995). Thus with “three strikes” we are paying for criminals to be locked up long after they would continue to be hazardous to society. The life sentencing with out parole is also costing tax paying citizens’ due to costs of elderly heath care in the prison systems (Irwin, 2002 & King, 2001). The Sentencing Project suggests that the impact of “three strikes” is substantially more subtle than what can be seen by providing current information only (King, 2001).
Many questions and much controversy have been raised about the Three Strikes legislation. Questions such as: whether or not the Three Strikes legislation is in violation of equal protection laws, even if it violates ex post facto laws, or if it constitutes cruel and unusual punishment, if juvenile violations should be allowed in making the decision also how out of state violations should be handled in differing states. There are many arguments against the legislation especially in cases where the punishment does not fit the crime, e.g. the cases provided above (Irwin, 2002). An issue at hand and that is repeatedly overlooked by our Supreme Court is the Eighth amendment of protection against cruel and unusual punishment (King, 2001). Also only convictions made after the law went into effect should be counted as strikes; otherwise it is in violation of ex post facto laws. Thus, people’s rights are being violated as they are tried for crimes that happened before the law took place. Another concern for juveniles is that they are not given the full rights of due process when they are tried. It would only seem fair that if they are to be tried as adults then they should be allowed juried trials in cases where they face the sentencing enhancements of the law (Vitiello, 1997), but this with in itself would aid in causing an even greater hardship on the judicial system. If we are punishing an offender for a crime that he has already served time for then we are allowing another violation of personal rights, double jeopardy. Completing the time sentenced for the prior crime is the offenders paying his debt to society (Vitiello, 1997). Sentencing guidelines would offer a better balance of resources used and fairness in sentencing, over the three strikes mandatory sentencing (King, 2001). It would allow for judicial discretion. The real criminals are those who tear down the financial stability of our nation and commit crimes against people using violence. This is where the focus should be placed.
More problems with such laws is in that multiple offender statutes vary in numerous ways, e.g. the number of strikes you are allowed (Irwin, 2002), the crimes considered strikes, statutes vary on the age of prior felonies are considered relevant, some statutes factor in “wash out” periods (Vitiello, 1997). These differences in statutes make a considerable difference on the prison populations per state. Mandatory sentencing under “three strikes” also fuels another problem; we continue to persecute the lower social classes in effort to reduce crime and continue to dig the trench between social equality (Irwin, 2001). When looking at the cost of imprisonment at $25,000 per year to incarcerate one individual per one year, think of this amount for the time that we are prescribing them now; twenty-five-to-life behind bars (Vitiello, 1997). Other problems presented by such legislation are that it takes money away from the juvenile system, from diversion and early intervention programs will suffer. The application of such laws has other potential problems: suspects that face their third strike and life in prison are more apt to act more violently to resist the possibility of spending the rest of their lives in prison (McShane, 1997). The incarceration rate of African Americans will continue to rise and there is little hope for their future when the numbers in prisons is higher that in the classrooms (McShane, 1997). Defendants facing the new sentencing enhancements are less likely to plea bargain and plead “guilty,” because of the sentence they are facing. Many are requesting trials and willing to take that chance. The request for trials will undoubtedly have a notable effect on the court’s resources (McShane, 1997). A example statistic provided by one lawyer (Garcetti) in the California jurisdiction stated that in a matter of months of the legislation being passed his office had filed four hundred “third” strike cases and one thousand one hundred “second” strike cases, and none of which were going to settle, they all wanted to go to trial (Vitiello, 1997).
Critics of the three strikes suggest that for any benefit that may be presented by the law it extremely outweighs the unfairness and disparity in the sentences applied to a majority of the crimes (King, 2001). Another problem is the later effects and costs of “three strikes,” which is a powerful reason legislatures are willing to overlook the issue at hand. The effects will not be seen effectively for a few years to come (Vitiello, 1997). Proponents might say that “three strikes” had aided in the reduction of crime, but many statistics will provide that many states that did not employ such laws also had significant decreases in crime rates during the same time period (Irwin, 2002). Criminologists also hold that the decreased criminal activity over the years has been affected by the economy, changes in demographics and drug markets, play a more powerful role than the “three strikes” legislation (Blumstein, 2002).
Marc Klass stated that “three strikes is too hard on soft crime and too soft on hard crimes (Vitiello, 1997).” The use of “three strikes” legislation in far too many cases has displayed how it is disproportionate to the crime committed. Americans are hardly using prisons for real criminals. The majority of the crimes committed are non-violent, only one in ten arrests in America is for crimes involving violence (Ambrosio, 2002). “Three strikes” laws target many drug offenses, which aids in increasing the prison population even more. Holding petty drug offenders with murders, child molesters, and rapists all on the same sentencing level, hardly paints a picture of justice (Ambrosio, 2002). Few people would say that all people are redeemable, but some people are capable of rehabilitation at a significantly lower cost than warehousing them in our prisons (Vitiello, 1997).
“Three Strikes” is an example of a good intention that went awry. The amazing portion of this is how we continue to ignore such problems. These problems are parasitic; they feed on each other to continue to make each section worse. Applying more emphasis to education and prevention would aid to reduce crimes. Treatment and other options would aid in correcting the prison infatuation. Redirecting the resources from prisons to schools would aid in promoting both causes for betterment. There are many options available to our country, but incarcerating the majority of our population for petty offenses only disintegrates the value we place on the people. Three strikes have been a valuable piece of work had it been better drafted.
References:
Ambrosio, Tara-Jen and Schiraldi, Vincent (2002, September). From classrooms to cell blocks: A national perspective. Washington DC: Justice Police Institute.
Blumstein, Alfred and Wallman, Joel. (ed.) (2002). The crime drop in America. Sociology: August 2002. Vol. 36, Issue 3.
Gold, Steve D. (December 1995). State Spending Patterns in the 1990’s. Albany, NY: Center of the States, Nelson A. Rockefeller Institute of Government.
Greenwood, Peter, et. Al, the RAND Corp, (1994). Three strikes and you’re out: Estimated benefits of California’s new mandatory sentencing law 34 (1994).
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King, Ryan and Mauer, Mark. (2001). aging behind bars: “Three Strikes” Seven Years Later. The Sentencing Project. Washington, DC. www.sentencingproject.org
Marshall, Patrick (2002). Three strikes laws: are they too harsh? CQ Researcher: May, 2002. Vol. 12, No. 18. Congressional Quarterly Inc.
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Thornbury, William (1995). What is the meaning of Three Strikes and you’re out legislation? West L.A.L. review. 303-304.
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