Three Strike Law the Past

¶ … Three Strike Law

The past several years have seen a proliferation of legislation directed at controlling recidivistic behavior in criminals through the increased application of laws commonly referred to as "three strike rules." The state of California has been at the forefront of this form of legislation and has been used repeatedly as an example of such legislation. The effectiveness of these new laws, including those of California, remains in question due not only to their relative infancy but also due to a uniform determinism of what constitutes effectiveness. The purpose of this research will be to review both issues.

The guiding force behind the three strike rules has been the general public's growing fear over perceived increases in crime. Politicians at all levels have recognized the public's concern and successfully leveraged said fear into hotly debated campaign issues. In an era when incarceration is already at an all-time high, the momentum of the three strike rules is surprisingly poised to increase the incarceration levels even more.

Three strike laws are functionally sentencing guidelines because they mandate fixed length sentences for repeat criminals. Under three strike rules, offenders receive mandatory sentences ranging from life imprisonment to some variant lengthy sentence. Their theoretic purpose is to remove repeat criminals from the streets for an extended period of time.

Presently, following the lead of the state of Washington, 23 states have enacted three strike rules. California's enactment is probably the one that has been most cited and copied. Uniquely, California is the only law that allows sentencing to be enforced against an individual whether the offenses involved are either felonies or misdemeanors. In virtually every other state the three offenses must be not only felonies but must be of a violent nature as well.

The key features of the California three strikes law are:

Second Strike Offense. If a person has one previous serious or violent felony conviction, the sentence for any new felony conviction (not just a serious or violent felony) is twice the term otherwise required under law for the new conviction. Offenders sentenced by the courts under this provision are often referred to as "second strikers."

Third Strike Offense. If a person has two or more previous serious or violent felony convictions, the sentence for any new felony conviction (not just a serious or violent felony) is life imprisonment with the minimum term being 25 years. Offenders convicted under this provision are frequently referred to as "third strikers."

Consecutive Sentencing. The statute requires consecutive, rather than concurrent, sentencing for multiple offenses committed by strikers. For example, an offender convicted of two third strike offenses would receive a minimum term of 50 years (two 25-year terms added together) to life.

Unlimited Aggregate Term. There is no limit to the number of felonies that can be included in the consecutive sentence.

Time Since Prior Conviction Not Considered. The length of time between the prior and new felony conviction does not affect the imposition of the new sentence, so serious and violent felony offenses committed many years before a new offense can be counted as prior strikes.

Probation, Suspension, or Diversion Prohibited. Probation may not be granted for the new felony, nor may imposition of the sentence be suspended for any prior offense. The defendant must be committed to state prison and is not eligible for diversion.

Prosecutorial Discretion. Prosecutors can move to dismiss, or "strike," prior felonies from consideration during sentencing in the "furtherance of justice."

Limited "Good Time" Credits. Strikers cannot reduce the time they spend in prison by more than one-fifth (rather than the standard of one-half) by earning credits from work or education activities. (California's Nonpartisan Fiscal and Pollicy Advisor, 2005)

Whether increasing crime is a true social problem supported by empirical documentation or whether it is simply an issue generated by politicians playing on the fears of the public is subject to debate and outside the province of this review. The theory of the three strike rule is that criminal behavior is essentially a cost / benefit analysis by the individuals involved in it. Three strike rule advocates argue that because this is the case implementing the three strike rules will deter people from committing crime by increasing the cost of the criminal behavior through swift punishment. Making such distinctions is vitally important to understanding the real impact of the three strikes law.

In determining whether the three strike rules have been effective it will be necessary to adopt a methodology to examine the available information regarding criminal recidivism and the three strike rules. The research will focus on the crime rate data available in the ten years prior to the enactment of three strike rules in the state of California and compare said data with the crime rate data available in the ten years immediately subsequent to their enactment. This will be complicated somewhat by the fact that the state of California has chosen to enact a statute that does not bifurcate crimes into felonies and misdemeanors nor does it apply the three strike rules to only serious felons. As a result, the full range of criminal violations must be considered as opposed to limiting the review to the impact on serious felonies.

In formulating this review the following factors will be used as a basis:

California has convicted 4,468 offenders on third strikes since 1994.

There are 2 million people behind bars in the U.S., including local jails -- twice as many as a decade ago.

Approximately 2,700 "third strikers" received at least a 25 years-to-life sentence for nonviolent and non-serious offenses.

In California, nearly 75% of 2nd strikes and 50% of 3rd strikes are for nonviolent and non-serious offenses.

The most common charges leveled against third-strike criminals are drugs, theft and burglary. (Christian Sciene Monitor, 2000)

All figures must be examined in light of outside factors that may skew the results. Population changes, the enactment of new laws and regulations, decriminalization of certain types of offenses, the reluctance of judges to utilize the provisions of the three strike rules in certain situations, etc., are all factors that must be afforded consideration when examining the crime data.

Some residual benefits to this review may include insight into patterns of criminal behavior inside the state of California. The review may disclose that certain types of criminal behavior such as theft, domestic violence, or sex crimes are subject to higher degrees of recidivism. Correspondingly, it might disclose that certain types of criminal behavior are more easily discouraged by the possibility of the three strike rule being applied. As in any research of this nature, information may surprisingly arise that was totally outside the original expectations of the research personnel performing the review.

The research team in this study will examine all applicable and available literature particularly statistics measuring criminal activity inside the state of California. These statistics will be collected from all state agencies, FBI files, independent research agencies, and federal Department of Justice files. Additionally, there have been a number of independent studies initiated by legal scholars from universities and law schools, studies financed by prosecuting and defense attorney groups, and generalized sociological studies that all deserve review and consideration. As time allows, as many of these studies as possible will be reviewed as well.

Literature reviewing criminal trends for several decades will have to be considered as well so as to explain any recent changes in a historical context. It would not be unusual to find a past decrease in crime rates due to factors not related to the three strike rules. These decreases must be examined and explained in order to afford legitimacy to any decrease that might be caused by the three strike rules. Failing to do so would give rise to the argument that decreases due to the enforcement of three strike rules are merely coincidental.

The design of the research method will be primarily empirical although the results will be explained in terms of the entire criminal system and not limited to the cold numbers presented. That is, the criminal data may or may not reveal a one for one decrease in criminal activity since the enactment of the three strike rules. The research team will take into account outside factors such as population changes, attitudes of the judiciary and prosecutorial professionals regarding the enforcement of the three strike rules, and a careful analysis of the type of criminals that are being affected by the rules. In this regard, extensive interviews will be conducted with all groups associated with the enforcement of the rules including the judiciary, prosecutors, defense counsel, police, jail and prison personnel, and criminals exposed to potential rule enforcement.

The sampling method used will be of the type identified as stratified. This style of sampling will be particularly useful in this type of study due to the fact that the there are a number of clearly defined subgroups in this study. By dividing the groups into subgroups the chances of statistical variance will be minimized. Inherent prejudices relative to attitudes regarding the three strike rules is to be expected. Stratified sampling will allow the research team to take these prejudices into account when examining the data so as to avoid any skewing resulting from prejudices.

The potential population in this study is clearly defined. Although the effect of the three strike rule on the general public cannot be completely disregarded, it is more likely that the general public is more greatly affected by generalized criminal statutes to govern their behavior than the possibility that they may be subject to eventual three strike rule enforcement. As already pointed out, random interviews will be conducted with prosecutors, defense counsel, judges, probation officials, jail and prison personnel, and incarcerated and previously incarcerated criminals.

The location of all interviews will be in sites as neutral as possible. This is particularly important in the interviews of the convicted criminals. Said interviews must be afforded every opportunity to feel comfortable and free of any potential form of intimidation. Earnest responses are a necessity. Those incarcerated or facing the likelihood of future incarceration are sensitive to the fact that their responses may be used to their disadvantage and might fail to answer as honestly as is necessary to insure statistical accuracy.

Problems might be anticipated relative to interviewing of the incarcerated individuals. Security is a prime consideration especially in the case of repeat offenders. Careful consideration must be afforded the concerns of prison officials in allowing these interviews while still doing everything possible to make sure that the interviewees are comfortable so that they will be more likely to be forthright in their answers.

The interviewing technique utilized with all applicable groups must be carefully chosen so as to make all interviewees comfortable. Suspicions as to the use of all information will be raised. All interview groups will be suspicious of the prejudices and orientation of the interviewer and the interview technique used by all interviewers must be carefully chosen.

Because this is a qualitative research project the strict empirical value of the data collected is somewhat less important than it would be in a quantitative research project the integrity of the information is still important. It is imperative that a carefully organized system of data conversion be utilized to ensure the accuracy and dependability of the accumulated information. Standardized interview forms are an absolute necessity. The interview process already provides for a high level of subjectivity so requiring the interviewers to adhere to a strict set of interview questions will minimize this subjectivity as much as possible. It might be important for the interviewers to follow an observational protocol as well. Doing so will allow the use of information regarding the reactions of interview subjects available to the personnel analyzing the data.

The process of coding is an essential part of the analysis. The reason that coding is so important is that it is the most unique part of the qualitative research process. This part of the procedure is where mistakes most likely occur. Subjectivity enters the process at this point and it is imperative that it is minimized as much as possible. In order to develop research results reliable and useful it is imperative that proper and disciplined coding techniques be applied.

The first step in the coding process is to review the data looking for information that is pertinent and related to answering the research question. Information unrelated to the question must be discarded while pertinent information must be properly categorized and recorded. Proper categorizing demands that theories and biases be ignored. Cold analysis of the data is required.