Reforming Three Strikes Laws: Problems and Solutions

Defining the Problem with Three-Strikes Laws

The scope and definition of the problem posed by "three strikes" sentencing laws will vary depending on who is doing the defining. Nevertheless, some clear and obvious problems exist. The policy itself was meant to address a problem, but it has created a new set of problems in the process. There are certainly situations where three-time violent felons are justifiably sentenced to twenty-five years to life in prison. However, the major problem with the policy is the human and budgetary cost generated when people are imprisoned for life for minor offenses (Ewing v. California, 538 U.S. 11, 2003). There is also the concern that some people are being imprisoned even though they will soon "age out" of criminal behavior — men in their sixties are simply not capable of the same physical feats as someone in their twenties or thirties (Besemer, Ahmad, Hinshaw, & Farrington, 2017). In short, there is a clear and troubling pattern whereby people are being incarcerated for life due to non-violent offenses. There is also a pattern of some prosecutors "stacking" charges in order to coerce a defendant into a plea bargain (Gocha, 2016).

It is not unreasonable to incarcerate someone who presents a genuine risk to the public after committing multiple offenses. There are even some non-violent offenses that could be classified this way, such as repeat DUI offenses — a crime that is not violent in itself but poses a clear danger to the public, and one from which people do not typically "age out," though therapy remains possible with cooperation (Moore, Harrison, Young, & Ochshorn, 2008). However, there are many other situations where the three strikes law represents an abuse of power, a waste of taxpayer dollars, and potentially discriminatory treatment of minorities. Given the clear weaknesses in the law and the frequent lack of built-in oversight and review, it is important to use the power of the state to refine and focus the law so that only those who are truly a danger to the public receive the harshest sentences. Furthermore, district attorneys should be subject to oversight regarding who ultimately receives a third strike, whether charges should be stacked in a given situation, and how much public input should be involved in all of the above (Mills & Romano, 2013).

Alternative Solutions to Three-Strikes Sentencing

There are several problems with the "three strikes" law as it currently stands. It treats many different crimes and offenses in exactly the same manner, regardless of the type of crime committed, the costs involved, the likelihood of recidivism, the danger posed to the public, or what constitutes a proportional punishment. Solutions should therefore be based on making the law more effective, more efficient, more equitable, and more proportional — while still upholding public safety. There is a reason that murderers, rapists, and child molesters are imprisoned without apology. At the same time, non-violent crime is itself a serious problem, and people who repeatedly break the law should face consequences including, where appropriate, confinement for rehabilitation or punishment. Even so, the tendency for criminals to "age out" of their behaviors and the fact that non-violent crimes should generally never lead to a generation-long sentence must be kept firmly in mind (Mills & Romano, 2013).

When it comes to truly violent and heinous offenses, the current framework is probably appropriate. The three strikes law can reasonably be enforced in cases involving murder, manslaughter, rape, sexual assault, and similar crimes — especially when all three strikes are violent offenses. In many instances, even a single such offense can warrant a life sentence; first-degree murder often does. For non-violent offenses, the appropriate response should depend on the defendant's behavior and willingness to cooperate. Life sentences should generally never be imposed. For felony drug possession charges in particular, "three strikes" consideration should generally not apply. Even when related ancillary crimes are involved — such as theft — a life sentence for drug possession cannot be justified. The one exception might be those who are dealing or trafficking. It is usually not difficult to distinguish users from dealers: a large quantity of drugs or individually packaged substances are telltale signs of sales activity. Absent such evidence, rehabilitation should be among the first remedies offered. If the person committed property or other non-violent crimes in the course of their drug use, incarceration may be warranted, and treatment can be offered during that period. If the person refuses treatment, they still serve their sentence — but that sentence should not be excessive, and the punishment should focus on the non-drug crimes committed (Mills & Romano, 2013).

Drug offenses deserve particular attention. There are many instances where simple drug possession constitutes an offender's third strike. Possessing cocaine, ecstasy, methamphetamine, or crack cocaine is commonly a felony, as is possessing prescription pills without a prescription. Commonly abused prescription drugs include opiates (e.g., Vicodin, OxyContin), benzodiazepines (e.g., Xanax, Klonopin), and ADHD medications (e.g., Ritalin, Adderall). While people of all races and backgrounds are guilty of using or abusing such substances, those most commonly ensnared by criminal drug enforcement are disproportionately African-Americans and Hispanics (Sutton, 2013). The same human and budgetary costs seen elsewhere in three-strikes enforcement appear here as well, compounded by a clear racial disparity in who ends up serving a life sentence (Donald, 2013). Furthermore, the methods used to apprehend and prosecute people for drug use are sometimes excessive to the point that many convictions have been overturned on constitutional grounds (Rochin v. California, 342 U.S. 165, 1952).

Public safety must also factor into any alternative approach. Many non-violent crimes are more of a nuisance than a genuine safety threat. However, some non-violent offenses do present real public safety risks. Repeat drunk drivers who continue to drive despite multiple prior offenses are one clear example; people who break into occupied homes are another. If such individuals refuse to stop committing crimes that endanger others, incarceration may indeed be appropriate. Even so, the three strikes law is too blunt an instrument. An escalating sentencing ladder with built-in discretion and customizability is more appropriate. For DUI offenders, for example — a third DUI is itself a felony in many states — there are effective alternatives to lifetime incarceration. An offender willing to wear an alcohol-monitoring bracelet (such as a SCRAM device) and install an ignition interlock device on their vehicle can and should remain free, with access to Alcoholics Anonymous or other rehabilitation services as needed. Failure to comply with those terms would result in incarceration. An offender who remains clean for three years could be released from all restrictions. This approach strikes a reasonable balance between limiting public expenditure and protecting public safety (Boyd, 2014).

This model — the use of probation and parole as alternatives to incarceration for non-violent offenders — should be applied far more broadly. Offenders can be effectively regulated outside of a jail cell through methods such as random drug screens, rehabilitation and therapy programs, house arrest, and restrictions on driving privileges (e.g., limited to work and school travel). With respect to prosecutorial conduct, several reforms should be enforced through oversight and regulation. First, charge stacking as a means of coercing plea deals should not be permitted. If a person truly commits multiple crimes, they should face charges for what can be proven in court. However, burying a drug user in charges when treatment would be far more effective for all parties is simply poor policy. Where property damage occurs, restitution is appropriate — a drug user who steals and wrecks a car, for example, should be required to repay the damages or at minimum the deductible. But a life sentence is not the answer, and even a shorter sentence is likely a waste of resources unless the offender remains defiant and unapologetic. Each case should be judged on its own facts. Applying brute-force tactics uniformly across all cases is neither just nor efficient (Rakoff, 2017).

Additionally, one incident should generally count as one strike. All charges — even if they are individually felonies — arising from a single event such as a carjacking should be treated as one offense. Likewise, three drug sales occurring in quick succession, without intervening court proceedings, should not automatically be treated as three separate strikes. However, if a person is apprehended for dealing drugs on three genuinely separate occasions, with court proceedings in between, that might be treated differently. Finally, past convictions should be subject to review. People legally sentenced to life for minor drug offenses could be considered for pardons, transferred to probation or rehabilitation programs, and reintegrated appropriately. There should be no reprieve for those who are clearly violent and beyond rehabilitation. Non-violent offenders, however — even those with compliance problems — can be monitored and regulated. If they reject the opportunity for reform and continue to reoffend, re-incarceration remains an option. But any such return to prison should be governed by the new, more targeted guidelines described above (Mills & Romano, 2013).