Three Strike Law and Its Effects on Criminal Justice

Introduction

“Three-strikes and you’re out” is a famous baseball quote that we all heard growing up. It became a popular rally cry for the increase in violent crimes and drug-related crimes in the 1980s and 1990s. Politicians running for office made getting tough on crime their platform. Many states and the federal government enacted tough sentencing laws without thoroughly looking at all the effects these laws would have on the criminal justice system. As a result, there have been many constitutional challenges in courts. Most have failed. These laws will continue to have an effect well into the future without change.

History of Three Strikes Laws

The 1980s and 1990s brought habitual offender laws into the spotlight but the first appearance of these types of laws can be found as far back as 1796 (FindLaw, 2010), New York had a recidivist sentencing law in 1796 for enhanced sentencing for second-time offenders. They were the first in the country. In 1907, New York added mandatory life sentences for fourth-time offenders (FindLaw, 2010). But later changed the sentencing to fifteen years to life in 1932. In 1965, New York revised its penal law for non-violent offenders giving judges more flexibility in choosing a sentence that is not unduly harsh.

In 1988, Ida Ballasiotes' daughter, Diane, was murdered by a sex-offender on work release wondering the streets of Seattle (Seattle Times Company, 1993). When she learned about how Washington monitored and sentenced offenders. She decided repeat offenders needed tougher sentences so she fought to get Washington’s Initiative 593 (Seattle Times Company, 1993). The “Three Strikes and You’re Out” initiative read on the ballot “Shall criminals who are convicted of 'most serious offenses' on three occasions be sentenced to life in prison without parole?” (Seattle Times Company, 1993, para. 1). Initiative 593 passed with seventy-five percent of the vote. Over 40 crimes were included for the third conviction and clemency from the governor is the only reprieve.

California soon followed Washington with Proposition 184. In 1992, Kimber Reynolds was robbed by two men on a motorcycle. She was shot in the head and later died from her injuries. Her father fought to get a habitual offender law on the books and was signed by the governor on March 1994. The law was the same as this measure. According to UC Hastings Scholarship Repository (1994), the measure would: increase sentences for defendants who have prior convictions for violent or serious felonies such as rape, robbery, or burglary (UC Hastings Scholarship Repository, 1994, p. 32). With the second conviction, the sentence is two times the normal sentence. If the offender has two or more previous convictions, the sentence is a minimum term of three times the normal sentence or 25 years, whichever is longer.

The measure would also include prior convictions for juveniles 16 years or older for certain felonies (UC Hastings Scholarship Repository, 1994). For second or third convictions any felony counts even petty theft or writing a bad check.

The federal government in 1984, enacted the Armed Career Criminal Act (ACCA) (Harvard Law Review, 2015). The ACCA required a 15-year sentence enhancement for an offender who has committed a crime with a firearm and has three or more previous federal or state convictions for serious drug offenses or violent felonies (Harvard Law Review, 2015).

In 1994, the federal government enacted the three-strikes statue (Harris, 1995). If an offender is convicted of a federal serious violent felony and has two or more prior convictions, one must be a serious violent felony, the other can be a serious drug offense, require the offender to receive a mandatory life sentence.

Tommy Lee Farmer was the first person convicted under federal law. He had participated in a failed supermarket robbery and thought he would be facing state charges. When he arrived at court and met with his lawyer, he was told that he was facing federal charges. He would be the first to be sentenced under the new federal three-strikes law (Butterfield, 1995).

United States Attorney, Mr. Rapp, was able to obtain a grand jury indictment charging Farmer with “interfering with interstate commerce by robbery, arguing that the Hy-Vee supermarket was part of a multi-state chain of stores” (Butterfield, 1995, para. 28). Farmer’s criminal history includes domestic abuse, murder, armed robbery, conspiracy to commit murder spanning 25 years (Butterfield, 1995). If his case was handled in state court, he would have been given an 8-year sentence. Instead, he was sentenced to life.

In 1994, Timothy L. Tyler was the first person sentenced under the federal government’s mandatory minimum sentence where your third felony strike gives you a life sentence (Fuchs, 2013). His first two charges were nonviolent drug-related charges and he received no prison time, 3rd charge triggered the federal three-strikes law (Fuchs, 2013). He was 24 years old when he sold LSD to a police informant. Tyler has bipolar disorder and has a history of psychosis. He has several psychotic episodes in the last few years and after one he was admitted to a psychiatric hospital. Tyler had delusions and behaved wildly. He was using acid, selling acid and LSD to his family and friends.

Effects from Three Strikes Laws

The effects of three-strike laws can be seen in the rise of the prison population when crime rates have fallen over the years since the laws have been implemented. We see the effects in the clogged court systems, increased costs to the state and federal government, increased violence in prisons, and how these sentences disproportionality affect the minority populations. Politicians pushed the agenda that mandatory sentences would be a deterrent to violent crime and protect society from repeat offenders. California’s qualifying felonies included nonviolent felonies and saw by the year 2005, 87,500 second and third-strike convictions.

Court systems already had a backlog. With the introductions of habitual offenders facing mandatory life in prison, the offenders will want a trial raising the costs and are time-consuming. Other felonies are resolved in plea-bargains. Plea-bargains take less time and cost less money (Jones, J. A., 2012). The increased cost not only comes from the court system, it includes the prison system. New prisons needed to be built, more staff had to be hired. Health care costs increase as the inmates grow old.

With heavily populated prisons, tensions build and create more problems. Common areas are turned into dorms, single cells become home to two or three inmates, privacy becomes an issue. The money for programs decreases as the population increases. The inmates may not get job training or drug treatment and could lead to an increased likelihood of committing new crimes ACLU (2019).

Violence against police officers could increase because when an offender is facing their third strike and a mandatory life sentence, they have nothing to lose which could result in resisting arrest, killing witnesses or escape attempts. According to the ACLU (2019), “African American men, in particular, are overrepresented in all criminal justice statistics: arrests, victimizations, incarceration and executions” (para. 13). The war on drugs has affected the African-American population even though studies have shown that black and white people's drug use is comparable. Police are more concentrated in the inner-city minority neighborhoods where drug dealing is done on the street. In the suburbs, drug dealing is done in homes or out of sight.

Constitutional challenges to Three Strike Laws

Over the years the Supreme Court of the United States (SCOTUS) has agreed to hear three-strikes (habitual offender) cases. They have challenged an individual state and federal laws. The court has upheld many challenges. Presented here are four cases, three challenge the state and one the federal government.

Ewing v. California, 538 U.S. 11 (2003) and Lockyer v. Andrade, 538 U.S. 63 (2003) are two cases decided on the same day by SCOTUS, both challenging that California’s three-strikes law violates protection from cruel and unusual punishment guaranteed in the Eighth Amendment.

Ewing v. California, 538 U.S. 11 (2003)

Gary Ewing had a long criminal history with charges for felony grand theft auto, burglary, unlawful possession of a firearm and many others. On March 12, 2000, while on parole, Ewing stole 3 golf clubs worth $399.00 (FindLaw, 2003). He was convicted of one count of felony grand theft and under California law is sentenced to 25-years to life because of his prior felony convictions (FindLaw, 2003).

Ewing appealed his sentence questioning whether his sentence was grossly disproportionate to the crime he was convicted of and therefore violated the cruel and unusual protections in the Eighth Amendment. SCOTUS held that California’s three-strikes law does not violate the protections in the Eighth Amendment (FindLaw, 2003). The court based their decision on Rummel v. Estelle (1980) and stated that 'Eighth Amendment does not require strict proportionality between crime and sentence [but] forbids only extreme sentences that are 'grossly disproportionate' to the crime'.

Lockyer v. Andrade, 538 U.S. 63 (2003)

Leandro Andrade stole videotapes from two different Kmart stores with an approximate value of $150.00' (FindLaw, 2003). He was caught, charged, and convicted of two counts of felony petty theft. With prior felonies, he was sentenced to two consecutive 25-years to life under California’s three-strikes law ' (FindLaw, 2003). He appealed to the “California Court of Appeal that his sentence violated the constitutional prohibition against cruel and unusual punishment. He then appealed to the California Supreme Court but they denied discretionary review” (FindLaw, 2003para. 1).

Andrade’s next step was the Federal District Court; however, “they denied his petition writ of habeas corpus but the Ninth Circuit granted him a certificate of appealability to his claim that his sentence violated the Eighth Amendment cruel and unusual protections and reversed” (FindLaw, 2003para. 1).

The State of California appealed to SCOTUS questioning if the Ninth District err in their ruling. SCOTUS ruled yes and reversed the previous ruling. “The two consecutive twenty-five years to life sentences for a third strike conviction is not grossly disproportionate to the crime and does not violate the cruel and unusual protection of the Eighth Amendment”.

Portalatin v. Graham (2010)

The case Portalatin v. Graham (2010) was decided along with Phillips v. Artus and Morris v. Artus. All three offenders were convicted separately but all were sentenced under New York’s Persistent Felony Offender Statute (PFO) (FindLaw, 2010). The appeals were combined because they were filed with the same legal question: “does New York’s recidivist sentencing scheme runs afoul of the Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296 (2004)” (FindLaw, 2010, para. 36). The court held that it did not and “found that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions”.

Johnson v. United States (2015)

In Johnson v. United States (2015), Samuel James Johnson was a convicted felon with an extensive criminal history. The Federal Bureau of Investigation (FBI) began investigating him in 2010 because of his involvement with a known white supremacist group called the National Socialist Movement (Harvard Law Review, 2015).

The FBI suspected the group of plotting attacks deemed terroristic. In November 2010, Johnson “disclosed to undercover FBI agents that he manufactured napalm, silencers, and other explosives” and that he owned a .22 caliber semiautomatic assault rifle and a .45 caliber semiautomatic handgun” (Harvard Law Review, 2015, para. 2). He also showed the agents his AK-47 rifle and 1,100 rounds of ammunition. John was arresting and charged in April 2012 with six counts of being an armed career criminal in possession of a firearm and a felon in possession of ammunition. Johnson pled guilty to one count of being a convicted felon in possession of a firearm (Harvard Law Review, 2015).

Johnson had two previous simple robbery convictions and a conviction for possession of short-barreled shotgun. These convictions were classified as violent felonies and therefore, under the Armed Career Criminal Act (ACCA), he was considered an armed career criminal was sentenced to 180 months’ imprisonment with five years of supervised release (Harvard Law Review, 2015). Johnson appealed with the following two arguments: “that his attempted robbery and shotgun possession predicate crimes were not violent felonies justifying an ACCA sentencing enhancement; and second, that ACCA was unconstitutionally vague” (Harvard Law Review, 2015, para. 4).

The United States Court of Appeals for the Eighth Circuit affirmed based on precedence set in United States v. Lillard 685 F.3d 773 (8th Cir. 2012), that possession of a short-barreled shotgun is a violent felony and in United States v. Sawyer 588 F.3d 548 (8th Cir. 2009), simple robbery is also a violent felony (Harvard Law Review, 2015, para. 4). The court also held that the “ACCA’s residual clause was not void for vagueness; bound by precedent affirming ACCA’s constitutionality. The court held that the ACCA was not unconstitutionally vague” (Harvard Law Review, 2015, para. 4).

The case was then appealed to the Supreme Court of the United States (SCOTUS). The question at hand was if the ACCA definition of violent felony is unconstitutionally vague? SCOTUS held yes, the residual clause of the ACCA definition of a violent felony is unconstitutionally vague and violated the Due Process Clause of the Fifth Amendment because it was void for vagueness. The vagueness doctrine has long-standing protection for defendants from “any criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. The doctrine’s protections extend to criminal sentencing statutes”. This created a loophole by not specifying what crimes are violent felonies.

Impact of Three Strike Laws in the Future

The impact on the future will be that of changes to the habitual offender laws by repealing parts of or the whole laws. This year Washington State removed second-degree robbery from the three-strikes laws and expanded the kinds of convictions that can be vacated or removed from an offender’s record. This will help when offenders are released. It should help them gain employment, housing and not return to prison (O'Sullivan, 2019).

California voters passed Proposition 57 on November 8, 2016, with 64.46 percent of the voters (Associated Press, 2018). After facing many court challenges, Proposition 57 makes changes to the state’s constitution. These changes include parole consideration for three-strikers. Approximately 4,000 inmates could be released. These measures help reduce the prison population and expenses. The First Step Act a by Congress and signed into law by the president on December 21, 2018. This law makes the Fair Sentencing Act retroactive so those sentenced under old crack cocaine quantity thresholds prior to August 3, 2010, can ask to be resentenced, helping to reduce the number of federal inmates (Federal Bureau of Prisons, n.d.). Eventually, these laws will have no impact because they will no longer exist.

Conclusion

Habitual offender laws have been around since 1796 but became popular during the 1980s and 1990s. The long sentences for offenders with a third strike have had a major impact on our criminal justice system from the police, courts, to prison populations. SCOTUS upheld constitutional challenges. The future impact will see the three-strikes laws disappear. Many states and the federal government have repealed all or parts of the laws in place.