Three Strikes Law and Its Impact on the African-American Community

¶ … Three Strikes Law on the African-American Community

Three Strikes legislation, which imposes sentencing enhancement on repeat offenders, often culminating with mandatory life sentences for third-time offenders, has gained popularity throughout the United States. The legislation began in California, where two highly publicized murders committed by convicted felons prompted an outcry against allowing recidivists to return to the community. California did see a decrease in crime rates following its institution of the Three Strikes policy, though there is considerable debate about whether the Three Strikes laws were responsible for that decline. Many other states adopted the legislation, so that about half of all states now have three strikes legislation. While these laws may not necessarily have the desired deterrence effect on crime, the general consensus appears to be that they are not harmful to society; therefore, even if they cannot be proven to be helpful, they should remain in place. However, the reality is that these three-strike laws have had a crippling impact on much of the African-American community. This paper will describe the policy issues and historical background behind the habitual offender legislation; describe the policy; discuss how the policy was enacted; describe the current state of the policy; and finally discuss the politics of the policy including the implications of the policy for the African-American community.

Policy issues and historical background

One of the most significant problems in criminal justice is the recidivist offender. "These offenders are considered unresponsive to incarceration as a means of behavior modification and undeterred by the prospect of serving time in prison" (Brown, & Jolivette, 2005). Some might wonder why extended periods of incarceration would be considered a threat to a group that is typically considered immune to the threat of prison. However, the three-strikes policy is not built solely around the premise that these offenders would be deterred by the threat of longer prison terms, though that threat is thought to provide some additional deterrence. Instead, it is predicated on the idea that longer prison sentences would prevent crime, at least in mainstream society, by removing these repeat offenders from society for longer periods of time " (Brown, & Jolivette, 2005).

The direct catalyst for the three strikes legislation was a crime committed by a repeat felon. On June 29, 1992, Kimber Reynolds, an 18-year-old girl, was shot and killed by repeat offender as she left a restaurant. Her father, Mike Reynolds, sought a solution for the revolving door of California's prison system and approached Republican Bill Jones to sponsor the bill. Jones was joined by Jim Costa, a democrat, as co-sponsor of the bill (Jones, 1999). Kimber's murder was close in time to the murder of 12-year-old Polly Klaas, who was killed by a paroled felon, and citizens were ready to support the idea of enhanced convictions for repeat offenders (Murphy, 2000). In fact, since the legislation was first approved in California, it is important to realize it had direct citizen approval and participation, because California's legislative process involves direct votes on propositions.

The policy was created specifically to address the issue of crimes by habitual offenders. The magnitude of the threat was not ever thoroughly defined, though recidivism levels in California, particularly after a second offense, were high, as they were throughout the United States. However, crime levels were already dropping at the time the legislation was written, and the public perception of an increasing danger was not supported by statistics that reveal a decreasing danger. Theoretically, the affected populations for the policy included the class of all potential crime victims and all potential criminals, with there being an obvious overlap in those groups. Prior to the institution of the three-strike legislation, there really had not been a concentrated effort to try to solve the problem of the habitual offender. Unfortunately, it is difficult to assess the efficacy of prior programs or the Three Strikes policy because other factors, such as the economy, drug use in neighborhoods, and other social factors, will impact criminality alongside official criminal justice policy.

Policy description

There is some misconception among people that the three strikes law means a mandatory life sentence for a third-time felony offender, which is not exactly the case. Instead, the three strikes law requires sentence enhancement for a repeat offender. "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'" (Brown, & Jolivette, 2005). Third-strike felony offenders, in other words, those with two or more serious or violent felony convictions, receive a mandatory sentence of life imprisonment with a minimum 25-year term (Brown, & Jolivette, 2005). In addition, the state requires consecutive, not concurrent, sentencing for multiple offenses committed by felony recidivists, with no limit to the number of felonies that can be included in the consecutive sentence (Brown, & Jolivette, 2005).

First, the court cannot consider the time between the crime for which the offender is being sentenced and the prior offenses; "serious and violent felony offenses committed many years before a new offense can be counted as prior strikes" (Brown, & Jolivette, 2005). In addition, the court cannot grant probation for a new felony and cannot suspend imposition of a sentence for a prior offense; instead, the "defendant must be committed to state prison and is not eligible for diversion" (Brown, & Jolivette, 2005). However, that does not mean that there is no room for discretion or rewards for good behavior. First, "Prosecutors can move to dismiss, or 'strike,' prior felonies from consideration during sentencing in the 'furtherance of justice'" (Brown, & Jolivette, 2005). Furthermore, once in prison, defendants can reduce their time spent in prison through good-time behavior including work and education, though they have greater limits on their good-time credits, as they can only limit their time served by up to one-fifth of the original sentence in contrast with non-recidivist offenders who can get good-time credit for up to one-half of the original sentence (Brown, & Jolivette, 2005).

The policy is no longer a proposed policy, but one that has been implemented for several years. The legislation is not a stand-alone program, but was expected to significantly increase the costs for the criminal justice system, not simply in prison costs, but also pre-trial costs as habitual offenders would be considered a greater flight risk, given their higher sentence options. However, in California, the program has actually cost less money for the criminal justice system than was originally predicted. The policy's intended consequence was to reduce crime among the civilian population. However, its unintended consequence may have been the further marginalization of the African-American community through long-term incarceration of so many of its members.

Policy process

There was significant public support for the Three Strikes law, which was seemingly driven by the high-profile murders of two young girls by convicted felons. The vocalized reason to support habitual offender legislation is to increase community safety. However, studies demonstrate that community safety is actually a secondary concern. Instead, people are more concerned about the broader social context in which they perceive a decline in morality, and increased criminal behavior or other rule-breaking is seen as evidence of that moral decline. The result is that they wish to punish rule-breakers. Recidivist criminal offenders are the ultimate rule-breakers; therefore, there is support for enhanced punishment for rule-breakers, even if those enhancements seem to belie the procedural protections that form the basis of many of those rules (Tyler & Boeckmann, 1997). Therefore, when one looks at habitual offender legislation as a way of punishing rule breakers, and considers that African-Americans, as a small minority with little participation in the rule-making process, are more likely to be rule breakers than those who can meaningfully participate in legislation creation, it should come as no surprise that the African-American community has been disproportionately impacted by Three Strikes legislation.

In fact, there has been no significant major opposition to the legislation, which has been re-approved by the California citizenry, and those who do openly oppose the laws are often labeled pro-criminal or pro-crime by proponents of the laws. Therefore, the public and media portrayals of opponents have been somewhat harsh, particularly because many of them are either former criminals or relatives of former criminals, who makes them appears less credible. As a result, much of the challenges to the policy have not been held in the public domain, but have occurred as a series of legal challenges to the policy.

The policy process of the Three-Strikes law has largely been conducted in the court room. There have been a number of legal challenges to the law, most of them suggesting that it is unconstitutional in some way. The main challenge has been that the law violates the Eighth Amendment's prohibition against cruel and unusual punishment because it removes the requirement of proportionality from the law, because a non-serious, non-violent third time felony offender can receive a life sentence for a relatively minor crime. Another challenge has been based on the premise that the law violates the separation of powers provision of the constitution because it grants the prosecutor discretion while limiting judicial discretion. These challenges have mostly been unsuccessful, though they have resulted in some changes to the law. Mainly, the legal challenges have helped formalize the law's policies. "For example, the courts have determined that 'wobblers' (crimes that can be considered either a misdemeanor or a felony) can trigger second and third strike enhancements, juvenile convictions can count as strike offenses, and multiple strikes can be charged from a single crime or incident" (Brown, & Jolivette, 2005).

One of the policy considerations for the policy was that its extension of prison sentences for such a large number of defendants would cost the state additional money. "Because the law increases the length of sentences, it has raised the average length of stay for the prison population. The average time served by all felons before their first release to parole was 21 months in 1994, prior to the implementation of the Three Strikes law. By 2004, this average had increased by 19% to 25 months. In part, this increase has occurred because second strikers serve longer sentences than the average for all prison inmates. Second strikers released to parole in 2004 served 43 months on average. The additional time in prison for second strikers costs the state approximately $60,000 per striker" (Brown, & Jolivette, 2005). These figures become more difficult to consider when one looks at three-strike offenders, because, with their lengthy criminal histories, one almost must assume that they would have been returned to prison anyway, and that the state would have taken on an additional expense in investigating, apprehending, and convicting them for that criminal activity.

At this point in time, no third strikers have been released from prison; the earliest any of them are eligible for parole is in 2019 (Brown, & Jolivette, 2005). When they do become parole-eligible, this will create an additional financial drain on the parole board, because the number of parole hearings is expected to double from its 2003 figure (Brown, & Jolivette, 2005). Moreover, the delay or removal of the possibility of release from prison creates an additional financial burden for the state. An aging prison population means an increase in housing costs as age-related illnesses create a financial burden for the prison. "Estimates are that housing and caring for elderly inmates costs between two and three times more than the $35,000 it costs in 2005-06 to incarcerate the average inmate. Therefore, as the striker population continues to grow and age in prison, the state costs to incarcerate them will also continue to escalate" (Brown, & Jolivette, 2005).

While one cannot ignore the financial impact of the Three Strike policy, it is also critical not to overstate the financial impact that the policy has on the state. It is important to keep in mind that the policy keeps many recidivists off the street, which results in a reduction in crime in the general population. While recidivist offenders can, and do, continue to offend in the prison setting, these costs are absorbed into the criminal justice system and not spread through society as a whole. What would the additional costs be for police, emergency response, healthcare for victims, and insurance premiums be if these offenders are not separated from society? An even more cynical observer would link higher crime rates and socioeconomic status and suggest that removal of these offenders from mainstream society drives down outside societal costs by reducing the number of children born into poverty because these potential parents are removed from society during their main procreative years, and that the health care costs that the prison system assumes would simply be shifted to indigent health care programs if these inmates were in mainstream society. Considerations such as these make it difficult to accurately determine the full financial impact of the program.

Current state of the policy

Not only is the Three Strikes policy currently in action in California, it has inspired similar laws in other states. Almost half of all states now have some type of habitual offender legislation. Moreover, despite several legal challenges, there does not appear to be any constitutional limitation to reasonable habitual offender legislation. No states have made significant efforts to reduce the impact of habitual offender legislation after enacting it, suggesting that Three Strikes policies will remain active for the foreseeable future.

The Three Strikes law was predicted to make the prison population soar, but it has not led to the dramatic increase in the California prison population that was predicted when the policy was implemented. That is not to suggest that the Three Strikes policy has not had a significant impact on the composition of the modern prison population; second striker and third strike offenders make up about one-fourth of the total prison population (Brown, & Jolivette, 2005). These numbers would be higher, but prosecutors frequently do choose to exercise discretion and strike prior offenses when the third offense is a non-serious or non-violent felony (Brown, & Jolivette, 2005). Therefore, it should come as no surprise that many second or third strike offenders are incarcerated for crimes against people, such as robbery and assault (Brown, & Jolivette, 2005). In fact, as of 2007, "nearly two-thirds of the 7,500 third-strikers are currently in prison because their third strike was a violent or serious felony such as murder, sexual assault, kidnapping, robbery, assault, burglary, assault with a deadly weapon, or illegal possession of a weapon" (Goodno, 2007). Furthermore, those numbers are probably underrepresentative of third-strikers who have committed serious or violent felonies because people are frequently convicted of lesser offenses than they actually committed.

One of the reasons that the Three Strikes policy has gained a significant amount of supports since its passage is that it appears to be effective. Supporters of the policy suggested that implementing it would lead to a significant reduction in crime rates, and, since it has been implemented, there has been a significant reduction in crime rates. However, it is difficult to assess causality for that crime rate reduction, and it may be inaccurate to assume that the Three Strikes policy is responsible for that reduction. Even before the Three Strikes law was passed, the overall crime rate in California was declining, and, had, in fact declined 10% between 1991 and 1994 (Brown, & Jolivette, 2005). "The crime rate continued to decline after Three Strikes, falling by 43% statewide between 1994 and 1999, though it has risen by about 11% since 1999. Similarly, the violent crime rate declined by 8% between 1991 and 1994 and then fell an additional 43% between 1994 and 2003" (Brown, & Jolivette, 2005). However, whether this drop in crime rates can be attributed to the law is debatable; there was a similar decline in the national crime rate over that same time period. However, when one compares crime rates across counties, the support for the policy is more tenuous. "Specifically, the four large counties most likely to send strikers to prison in the last ten years (Kern, Los Angeles, San Diego, and Riverside) have seen crime rates drop by an average of 37% from 1994 through 2003. The four large counties least likely to send strikers to prison (Ventura, Contra Costa, Alameda, and San Francisco) saw crime rates drop by an average of 33% over the same period" (Brown, & Jolivette, 2005).

Politics

Currently, the Three Strikes policy, as an established law, relies upon continued propaganda and good press to keep up support for the laws. For example, looking at a recent article by Three Strikes legislation supporter Debra Saunders, she describes opponents of the law as "a pro-criminal lobby" (Saunders, 2008). She dismisses concerns that the law can be unfairly applied to a third-time offender for a petty offense as opponents not believing in "harsh sentences for career criminals" and suggests that "they want repeat offenders to do long time on the installment plan" (Saunders, 2008). In other words, people who oppose the policy are considered both pro-crime and pro-criminal.

The reality is that a person can oppose crime and also oppose the policy, because it does have a disparate impact on some communities that might not equal the positive impact, if any, that it has on crime rates. One of the biggest possible problems for the Three Strike law is that it definitely has a disparate impact on the African-American population. "African-Americans make up the largest group of second and third strikers (37%), followed by Hispanics (33%), and whites (26%). This racial composition is similar to that in the total prison population. However, African-Americans make up 45% of the third striker population, which is 15% higher than in the total prison population" (Brown, & Jolivette, 2005).