|Critical Legal Issues |
|Examining Three Strikes |
|Evaluating the effectiveness of three strikes laws around the country. |
| |
|Harriet Krzykowski |
|5/25/2009 |

| The purpose of this paper is to discuss, evaluate and examine the preceding events and passage of three strikes laws in many of the country’s|
|states, and the effectiveness of these laws. |

In 1992, shortly following the murder of his 18-year-old daughter, Kimber, Fresno photographer Mike Reynolds drafted a law that would impose mandatory sentences for repeat offenders. It was proposed as both a legislative measure and a ballot initiative, but neither made much headway at first. According to Reynolds, legislatures “laughed it off” when he first brought up the measure to them. Then, in October of 1993, 12-year-old Polly Klaas was kidnapped, molested, and murdered by Richard Allen Davis, a repeat sex offender with a long record of criminal convictions. He was on parole at the time.

Polly’s father, Marc, hit the national television circuit and campaigned for passage of harsher sentences for repeat felons. The case sparked national debate and outrage; relatives of other victims, prosecutors, and concerned citizens took up the cause. After that, “the phone lines here started smoking,” says Reynolds. “It became a freight train and you either got on board or you got out of the way.” (Egelko, 2003.) Politicians followed suit, and states started passing their own versions of Reynold’s law, mandating sentences for second and third time offenders. Unlike most laws, the “three strikes” legislation owes its existence almost entirely to these two crimes. This legislation is also known under the acronym TSAYO—Three Strikes and You’re Out. It was intended to keep the public safe from criminals who have demonstrated a pattern of breaking the law. It is based on the premise that “if a criminal has not reformed after two felony convictions, it is unlikely he or she ever will.” (Murphy, 2000.) The law was designed to keep citizens safe in two ways; to keep dangerous individuals off the streets and behind for a longer period of time, and deter other criminals from committing similar crimes. By 2000, nearly half of the states had passed TSAYO laws. (The free dictionary, n.d.) Washington was the first state to pass a “three strikes” law in 1993; it stated that anyone convicted of three separate violent felonies must receive a sentence of life in prison without the opportunity for parole. California’s TSAYO law was passed in 1994. Florida’s three strikes law was passed in 1999, and is targeted at those crimes that involve use of a firearm. If one is used, the mandatory sentence is ten years. If one is fired, the criminal receives twenty years. If someone is shot with a firearm, the criminal receives a mandatory sentence of twenty-five to life. If a felon even possesses a firearm, regardless of whether or not it was used to commit a crime, must serve at least three years. Federal courts also passed a version of the bill in 1994, which appears to have been largely symbolic; application of the federal law has resulted in only 35 convictions as of September 30, 1996. Its use has been limited because most violent felonies are resolved in state courts; less than 2% are settled in federal court. Challenges to the federal three strikes law has resulted in mixed findings. In 1997, the Supreme Court upheld prosecutors’ discretion under the law and said it is an “integral feature of the criminal justice system.” However, in 1998, the 9th U.S. Circuit Court of Appeals struck down a provision included in the federal law, ruling it unconstitutional to require defendants to prove they were unarmed and did not hurt anyone during prior convictions; they cited the burden of proof lies on the prosecutor. (“Three Strikes” Laws: Five Years Later, n.d.) However, California’s law is widely considered to be the most severe. (Zimring, Hawkins, and Kamin 2001.) California has had far more criminals sentenced under the law than any other state; more than 50,000 by 2001. Nearly one fourth of those are facing a minimum of twenty-five years in prison. Under California’s TSAYO law, a criminal with one prior conviction will receive a mandatory doubling of the sentence length on any subsequent felony, and is not eligible for parole before serving at least eighty percent of the sentence. A criminal with two strikes in his record faces an imposed sentence of twenty five years to life, and again the prisoner must serve at least eighty percent of the sentence before being released. Furthermore, California counts nonviolent felonies, such as burglary and theft as strikes. California has been featured prominently in the debate over TSAYO laws. (The free dictionary, n.d.) So how effective have the laws been since their enactment? Results vary, and there are both adamant proponents and opponents. Says Bill Jones of California, who was a Republican Senator in 1994 when he carried the three-strikes bill through the legislature, “It’s worked much better than even I had predicted ten years ago.” “It delivered the message to the repeat offenders who were committing upwards of 50% of the crimes in California that they had three choices: straighten up, go to jail, or leave the state….People sent that message and it worked.” Many people who cite the law’s effectiveness point to the decline of crime after the law’s passage. The California Attorney General’s (GAC) office claims that between 1994 and 1998, the law’s passage resulted in 4,000 fewer murders and 800,000 fewer criminal victimizations. (The free dictionary, n.d.) However, opponents call attention to the fact that crime rates nationwide were already declining before 1994, and that the CAG study only compared the pre-law rate with the post-law rate and failed to consider other contributing factors. According to a study by the University of Florida, there may be other ways to explain the drop in crime. UF criminologist Alex Piquero says, “Those who support the law credit it with a dramatic reduction in crime, but our study shows that crime was already dropping in Florida, as it was in all states, before the law was passed.” In fact, an analysis of Florida’s Index Crime statistics shows the crime drop between 1994 and 1998 was 16 percent, while between 2000 and 2004, after the law went into effect, the crime drop was only 13 percent. It is unwise to draw causal conclusions from crime rate data alone, Piquero warns; the study also suggests that an increase in sworn police personnel could be a reason for the crime decrease. It points out that between 1996 and 2000, sworn police personnel increased by six percent, just under a seven percent trend for the country. (University of Florida News, 2006.) Other criticisms of the three-strike laws cite the expense of housing criminals for longer sentences. According to B. Cayenne Bird, a journalist, “Each Three Striker is costing the taxpayers from $700,000 to one million dollars each.” Bird proposes that the law should only be applied to violent criminals, which would dramatically decrease the taxpayers’ financial burden; out of the 160,000 people in prison, only approximately 30% are violent offenders. In fact, of the 7,100 inmates currently incarcerated by TSAYO, a little more than half committed drug offenses or property crimes for their third strike. Furthermore, the cost will likely increase as the current inmate population ages; between 1980 and 1999, the number of inmates 55 and older jumped from 9,500 to 30,000, mirroring the nationwide increase in the elderly population. The cost of housing older inmates costs 2 to 3 times more than housing their younger counterparts, around $600,000 per year. Because the elderly have far less recidivism—excepting certain sex crimes—one expert describes this as “wasting taxpayer time and money,” noting the legislature may need revision in the future. (“Three Strikes” Laws: Five Years Later, n.d.) Another concern is prison overcrowding. Reports show that prison populations have radically increased in some of the states that have enacted three-strike laws, in particular California and Georgia. According to the Georgia Department of Corrections, it will need 14,000 more beds and a budget increase of 25% to accommodate everyone. In the meantime, tents are being used as cell blocks, bunks have been moved into common areas, and cells designed for two inmates have been used to house three. California has said they will need 70,000 more beds, and spends six times more on inmates older than 50 than for younger, healthier inmates. (The free dictionary, n.d.) Further critics point to an apparent disparity in how the law has been applied. As already mentioned, prosecutors have an influential role in determining if a criminal will be charged under TSAYO laws, and according to studies released in 1998 (by the Rand Institute, the National Institute of Justice, the Justice Policy Institute, and the Campaign for Effective Crime Policy) TSAYO laws have been enforced more often against minorities than against white offenders. In California, 2,138 of more than 4,800 inmates sentenced for a third strike were African American, 1,262 were Latino, and only 1,237 were white, which is disproportionate to the percentage of ethnicities in the general population. Moreover, most of the minority offenders were serving three-strike sentences for nonviolent crimes; more than twice as many were for drug possession or petty theft than for murder, rape, or kidnapping. (“Three Strikes” Laws: Five Years Later, n.d.) Evaluating the effectiveness of the three strikes laws in many states deserves careful consideration of the implementation, costs and consequences. The question remains whether the law is protecting the public or endangering it by the burdens placed on an overcrowded system and the high cost diverts funds from education and social programs that may prevent crime in the first place. As Jeffrey Fagan, a law professor at Columbia University said, “Crime rises and falls for complex reasons, and…crime control initiatives such as Florida’s three-strikes laws offer simple solutions that are no match for the web of large social and economic forces that drive crime.

References
“Three Strikes” Laws: Five Years Later Executive Summary. Retrieved from http://www.prisonpolicy.org/scans/sp/3strikes.pdf

Helland, Eric and Tabarrok, Alexander. Does Three Strikes Deter? A Non-Parametric Estimation. Retrieved from http://mason.gmu.edu/~atabarro/ThreeStrikes.pdf

Three Strikes Law. Retrieved from http://legal-dictionary.thefreedictionary.com/Three+strikes+law

Bird, B. Cayenne. The Three Strikes Law is Not a Solution to Crime. Retrieved from http://www.1union1.com/advice4.htm

Egelko, Bob, 2003. Has Three-Strikes Law Made State’s Streets Safer? Retrieved from http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/09/28/STRIKES.TMP

Murphy, Jenny, 2000. Are Three-Strikes Laws Fair and Effective? Retrieved from http://speakout.com/activism/issue_briefs/1290b-1.html

UF Study Shows Florida’s Three-Strikes Law Fails to Curb Crime, 2006. Retrieved from http://news.ufl.edu/2006/01/10/three-strikes-law/