Three Strikes Laws: Controversy, Impact, and Public Opinion

Introduction

From the beginning, the three strikes law in California was shaped by tragic personal stories. Take, for example, the story of Kimber Reynolds, who on a summer evening in 1992 went out for coffee and cake with a friend at a local restaurant in Fresno. As the two friends left the restaurant, two men on stolen motorcycles drove up to the curb. One of them grabbed Kimber's purse. When she resisted, the assailant pressed the barrel of a gun to her ear and pulled the trigger, killing her. There is also the story of Polly Klaas, who was kidnapped from her bedroom, raped, and strangled by a man named Richard Allen Davis. Davis eventually confessed and led police to the shallow grave where he had buried Polly, discovered on December 4, 1993. His criminal record included robbery, burglary, assault, rape, and kidnapping stretching over 26 years ("Polly," 1995).

When confronted with stories like these, a tough law such as three strikes seems very reasonable and practical. The original intent of the law was to keep violent criminals in prison and off California streets. However, many of the individuals being sentenced under the three strikes law are non-violent repeat offenders, and this fact has generated significant controversy among California residents and lawmakers ("Are Three-Strikes Laws Fair and Effective," 2004).

In 1994, California voters approved a ballot initiative known as "Three Strikes and You're Out." The three strikes law means that a third offense—even a misdemeanor—can send a person to prison for a 25-years-to-life sentence. When criminals have two strikes against them, it is quite possible that they could spend the rest of their life in prison if convicted of a third offense, even one as minor as petty theft. Additionally, a person's first and second strikes may originally be misdemeanors, but prosecutors can "wobble up" those misdemeanors to felonies at their discretion ("Fight against flawed 3-strikes law must continue," 2004). Of the 26 states that currently have a three strikes law, California's is the toughest and harshest. Researchers at the University of California, Berkeley, estimated in 1999 that more than 90 percent of the three strikes sentences handed down nationally were in California ("California voters to get a swing at three strikes," 2004).

Background and Legislative History

By 2003, the majority of those sentenced under the three strikes law to 25-years-to-life were serving time for non-violent crimes. The Department of Corrections reported that 58 percent of third-strike cases involved property, drug, or other non-violent offenses ("They Changed Their Minds on Three Strikes," 2004). A notable example is the case of Leandro Andrade. In 1995, Andrade was charged with stealing $153 worth of videotapes from two Kmart stores and was sentenced to life in prison with no possibility of parole for 50 years. Andrade was a heroin user who had been convicted in the 1980s of various non-violent crimes. Because of these prior convictions, he was sentenced under the three strikes law ("Three Strikes and You're In," 2004).

The controversy over the three strikes law continues not only in California but nationwide. On one side are those who support such legislation because they believe it successfully reduces crime. On the other are those who recognize its inconsistencies and flaws and wish to rewrite or completely eliminate the law as it currently stands. This study is concerned with how individuals decide whether or not to support this legislation. Research clearly shows that people's choices can be shaped by a wide range of factors: empirical studies, authority figures, emotional appeal, peer pressure, personal belief systems, and societal values, among others. The purpose of this paper is to define some of the major factors that influence perceptions of the effectiveness of three strikes laws.

Many people who were strong proponents of passing the three strikes law in 1994 through Proposition 184 have since changed their minds. Many feel that the three strikes law was never intended to be used to sentence people like Andrade. A number of the law's opponents argue that crimes typically prosecuted as misdemeanors should not be allowed to result in a life sentence. They also contend that violent crime has not been reduced because of the law; rather, it has created new problems, such as prison overcrowding and the high costs associated with housing these inmates ("They Changed Their Minds on Three Strikes," 2004).

Supporters of the three strikes law argue that it sends a message to career criminals and limits the discretion of judges who tend toward lenient sentencing. They also contend that the number of offenders imprisoned and the projected costs of housing them have been lower than originally anticipated.

In 2004, opponents of the three strikes law succeeded in placing Proposition 66 on the November ballot. Proposition 66 would have changed the law to require that a third strike also be a serious or violent felony, would have penalized sex offenders more harshly, and would have eliminated certain crimes from qualifying under the current three strikes law. Additionally, people already sentenced under three strikes would have received new sentencing hearings or could potentially have been retried ("Three Strikes Measure Might Free Many More Prisoners," 2004). The proposition was not intended to abolish three strikes but to change how the law is applied. Proposition 66 failed to pass, with 53 percent voting against it and 47 percent in favor.

Literature Review

Many years after the law's passage, the legislation continues as originally designed, despite ongoing controversy over its effectiveness. The law has survived several challenges at the Supreme Court and been deemed constitutional. The 2004 vote demonstrated that California residents' attitudes toward the law's effectiveness and fairness are shifting. This research aims to: (1) identify current beliefs regarding the Three Strikes Law and (2) determine what specific factors shape individuals' perceptions of the law's effectiveness.

In order to gain a better understanding of how individuals form perceptions about the Three Strikes Law, it is first necessary to examine how this law has impacted the state and the nation as a whole. According to Lott (1999), scholars have studied both theoretical and empirical issues involving crime and punishment, yet theory has often outpaced empirical work. Policymakers are told what factors should inform optimal penalties, but not how those penalties should actually be set. Penalties can therefore take many forms that may or may not produce the desired outcomes, and the three strikes law provides a useful illustration.

In a historical overview, Marvell and Moody (2001, p. 89) note that between 1993 and 1995, 24 states enacted "three strikes and you're out" laws mandating at least 25 years of incarceration upon a third conviction for a violent crime. The crimes covered include murder, rape, kidnapping, aggravated robbery, aggravated assault, and sexual abuse. Some states also included additional crimes, such as firearm violations, burglary, and robbery. California's law differs considerably from those of other states in that California included residential burglary as a qualifying felony. Because burglary is far more common than violent crime, this provision greatly expands the number of potential three strikes cases and raises serious questions about the proportionality of penalties. The overall rationale of these laws is that longer prison terms reduce crime by deterring and incapacitating the most active and dangerous criminals—that is, when the costs of committing a crime increase, a rational person will be less likely to commit it.

Marvell and Moody identify several difficulties with the laws across the 24 states: criminals are not always aware of the laws, at least not initially; repeat criminals can be expected to serve substantial prison terms even without such laws; most states already had habitual criminal statutes allowing lengthy sentences at a judge's discretion; the deterrent effect on homicides is limited because the law does not necessarily increase sanctions for that crime. However, the law may indirectly reduce homicides by deterring robberies and other felonies during which homicides might occur. Additionally, some criminals may reduce their expected costs by moving to another jurisdiction, shifting to crimes with lower risks, or taking additional measures to avoid apprehension—or, in the most extreme cases, eliminating witnesses to avoid identification (pp. 91–92).

The authors note that even if this change in criminal behavior occurs in only one percent of cases, the impact can be substantial. For example, if the law influences even one homicide per thousand violent crimes, it could increase total homicides by approximately 17 percent in three strikes states (p. 93). On the other hand, the three strikes law could reduce crime broadly and thereby lower homicides as well. Deterrence would likely produce an immediate reduction, while incapacitation would have a delayed effect. The authors conclude that the net effect and timing of the law's impact are therefore essential considerations.

In Punishment and Democracy: Three Strikes and You're Out in California (2002), Zimring, Hawkins, and Kamin suggest that the three strikes law probably provides some deterrent effect (p. 105), but attribute it as the cause of the crime rate decline observed between 1993 and 1999 remains questionable (pp. 91–100). The authors examine several key concerns about the law, including problems with its drafting (pp. 169–170), its long-term impact on prison populations (pp. 133–138), and the questionable effect that the ballot initiative process has on imprisonment policy (pp. 192–203). As a result, they recommend repealing or modifying the law's provisions.

Importantly, Punishment and Democracy suggests that empirical data on the law's effects is unlikely to "influence the public debate about three strikes laws" (pp. 217–32) or to sway policymakers. The authors thus stress that wholesale reform is highly unlikely, and that only small changes may occur, driven largely by the significant costs imposed on the public.

For this study, it is important to understand why these authors believe individuals—especially in California, where the law appears most severe and inconsistent—still support it. Proponents point to drops in the crime rate, arguing that the law identifies those whose past behavior demonstrates a clear disposition toward serious criminal activity and whose behavior has not been deterred by conventional punishment. A study by the Attorney General's Department in 1998 reported that since the passage of "Three Strikes," the violent crime rate in California dropped 26.9 percent, with a 30.8 percent drop across six major crime categories (p. 3). However, the authors note that the statistics used to support claims of crime reduction are too recent to be conclusive; long-term study of offender absence is required. Other supporters cite FBI data showing a significant drop in California's crime rate and anecdotal accounts from inmates and former offenders about how the three strikes law affected their decision-making.

The authors of Punishment and Democracy conclude that the law has not yet produced its promised benefits and therefore question its costs to the judicial and prison systems. The law does not create new felony prosecutions; it only increases punishment for targeted groups. As a result, one might expect a disgruntled public to demand revision, but no such backlash has occurred.

The authors believe that support for three strikes has remained strong because the full story of its implementation has not been widely communicated. Elections emphasize that the law has been effective, and certain candidates take credit for declines in crime. However, the authors agree that reform would be unlikely even if full information were available. "Three Strikes is supported by a powerful legend about crime in California; part of that legend is the perception that Three Strikes was a watershed change in penal policy from soft to hard on crime and that the law led to the sharp decline in crime rates" (p. 221). Questioning the law's deterrent effect would not be sufficient to erode public confidence, because the law "feels right" (pp. 221–22). The normal causal relationship is reversed: the public believes severe sanctions are appropriate, so the law must be working. Voters are swayed by political rhetoric that frames issues of punishment as a "zero-sum competition between crime victims and criminal offenders" (p. 223), with politicians emphasizing that what is bad for offenders is necessarily good for victims.