Recent article by
Jeffrey Hayden: "Revisiting
the Three Strikes Law"
Three strikes laws
are a category of statutes enacted by state governments in the United
States, beginning in the 1990s, to mandate long periods of imprisonment
for persons convicted of a felony on three (or more) separate occasions.
The term is borrowed from baseball and is generally colloquial in its
usage, as such statutes are most often known officially as mandatory
sentencing laws or some variant thereof.
The underlying philosophy of these laws is that any person who commits
more than two felonies can justifiably be considered incorrigible and
chronically criminal, and that permanent imprisonment is then mandated
for the safety of society.
While the practice of imposing longer prison sentences on repeat offenders
than on first-time offenders who commit the same crime is nothing new
in American states (New York State, for example, has a Persistent Felony
Offender law that dates back to the late 19th Century), such sentences
were not compulsory in every single case, and judges had much discretion
in what term of incarceration to impose.
California actually enacted two distinct three strikes laws. The legislature
enacted a three strikes law in the March of 1994. Eight months later,
the voters approved Proposition 184, which enacted almost the same law
which the legislature had rushed into being. The two schemes are almost
identical, except that each has a list of felonies which are designated
as serious or violent, and there are some differences between the two
Most citizens are in favor of the idea of long prison sentences for
repeated violent offenders; however, the reach of the three strikes
law often exceeds what those same citizens expect when they voice their
support of these laws. For example, while some states require all three
felony convictions to be for violent crimes in order for the mandatory
sentence to be pronounced, California - mandate the enhanced sentence
for any third felony conviction so long as the first two felonies were
deemed to be either "violent" or "serious," or both.
This leads to criticism that the law leads to unjust results, either
because the current offense doesn't warrant such sanctions, or because
the harsh punishment isn't warranted because the so-called strike priors
involve only a minimal threat to society.
Some unusual scenarios have arisen as such offenses as felony petty
theft)where the person committing such a crime has a prior conviction
for any form of stealing, including robbery or burglary, no matter how
long ago the original crime had been committed) has led to some defendants
being sentenced to 25 years to life in prison for stealing such items
as compact discs or even slices of pizza, prompting harsh criticism
not only within the United States, but also from outside the country
Moreover, some crimes which historically might only marginally qualify
as a felony are now considered to be violent or serious, such as suggesting
a witness not report a crime (Penal Code section 136.1) or threatening
to commit a crime which could result in a serious injury, even though
there is neither an attempt or any intent to carry out the act (Penal
Code section 422) are now sufficient to result in a strike. Another
criticism notes that often a burglary, a crime which could result in
the theft of something having little or no value, is perceived as being
unjustly included as one of the three "strikes."
On March 5, 2003, the U.S. Supreme Court held by a 5-4 majority that
such sentences do not violate the Eighth Amendment of the U.S. Constitution,
which prohibits "cruel and unusual punishment." In two separate
opinions handed down on the same day, the court upheld California's
three-strikes law against an attack on direct appeal from conviction,
Ewing v. California, 538 U.S. 11 (2003), and a collateral attack through
a petition for habeas corpus, Lockyer v. Andrade, 538 U.S. 63 (2003).
Several challenges to this aspect of the California law were pending,
in both state and federal courts, as of the spring of 2004, but on November
2, 2004, the state's voters rejected an amendment to the statute (offered
in Proposition 66) which would have required the third felony to be
either "violent" and/or "serious" in order to result
in a 25-years-to-life sentence.
Some critics have argued that three-strikes laws violate the Double
Jeopardy Clause of the U.S. Constitution, though few judges take this
argument seriously. In the vast majority of U.S. courts, it is generally
accepted that double jeopardy is not a problem because the defendant
is not being retried or punished again for the set of facts giving rise
to the previous convictions; the fact of the previous convictions is
merely being used as evidence of the defendant's incorrigible character
in order to enhance the sentence for the third conviction.
Efforts to reform the Three Strikes Laws continue throughout the state.
Relief From the Effect of Strike Priors
The courts have rejected challenges to the constitutionality of the
Three Strikes law. One constitutional attack was successful, however.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530,
the Supreme Court found some merit in the argument that the constitutional
requirement of separation of executive, legislative, and judicial powers
might be violated unless the statute were interpreted to allow judges
to dismiss and disregard prior convictions "in furtherance of justice"
on their own initiative. The Court gave the statute that interpretation
and so avoided the constitutional problem. The ruling that trial courts
may strike prior convictions in furtherance of justice is not a broad
grant of discretion to judges to avoid the Three Strikes law, however.
The Supreme Court has held that a current or prior conviction may only
be dismissed if "in light of the nature and circumstances of [the
defendant's] present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects,
the defendant may be deemed outside the scheme's spirit, in whole or
in part, and hence should be treated as though he had presently not
committed one or more felonies and/or had not previously been convicted
of one or more serious and/or violent felonies." (People v. Williams
(1998) 17 Cal.4th 148, 161.)
In particular, a court may not strike a sentencing allegation "solely
'to accommodate judicial convenience or because of court congestion'
" (Romero, supra, 13 Cal.4th at p. 531, quoting People v. Kessel
(1976) 61 Cal.App.3d 322,326), or "simply because a defendant pleads
guilty" (Romero, supra, 13 Cal.4th at p. 531), or because of "a
personal antipathy for the effect that the three strikes law would have
on [a] defendant,' while ignoring 'defendant's background,' 'the nature
of his present offenses,' and other 'individualized considerations.'
" (Ibid., quoting People v. Dent (1995) 38 Cal.App.4th 1726, 1731.)
A court also may not strike a strike in order to make the defendant
eligible for commitment to the California Rehabilitation Center. The
Three Strikes law provides that those who come under its provisions
are ineligible for CRC commitment. The Sixth District ruled in People
v. Carrillo, 87 Cal.App.4th 1416, decided March 27, 2001, that although
a court may dismiss a strike and take the defendant out of the ambit
of the Three Strikes law, it could not dismiss a strike on the condition
that the defendant complete a commitment to the CRC, or later reinstate
the conditionally-dismissed strike.
Although in other situations courts are reluctant to overturn a trial
judge's exercise of discretion (see People v. Bishop (1997) 56 Cal.App.4th
1245), they show little restraint when the judge has exercised his discretion
in a three-strikes defendant's favor. If the appellate court believes
that the defendant falls within the spirit of the three strikes law,
it will reverse a judge's decision to dismiss a strike, sometimes with
an admonition like this one: "A court may not simply substitute
its own opinion of what would be a better policy, or a more appropriately
calibrated system of punishment in place of that articulated by the
People from whom the court's authority flows." (People v. McGlothin,
(1998) 67 Cal.App.4th 468, 476-477, quoted in People v. Thornton (1999)
73 Cal.App.4th 42, 49. See also People v. Gaston (1999) 74 Cal.App.4th
Nonetheless, the judicial power to dismiss strikes does offer hope to
defendants whose priors are neither many nor particularly horrible.
And some recent appellate decisions regarding dismissing strikes are
helpful. In one case, the Court of Appeal (First District, Division
Three) held that a trial court abused its discretion by failing to strike
a strike! People v. Cluff (2001) 87 Cal.App.4th 991, concerned a third-striker
whose current offense was a failure to register as a sex offender. The
defendant had registered whenever he changed his address, but had failed
to confirm his address annually as required by the sex offender registration
law. The requirement of annual re-registration had been enacted five
years after the defendant was released from prison. The Court of Appeal
not only ruled that the trial court had abused its discretion by failing
to strike a strike, but also stated that the sentence of twenty-five
years-to-life "appears disproportionate by any measure." (Id.
at p. 1004.)
The Supreme Court has held that a trial court applying the "Three
Strikes" law may exercise its discretion to dismiss a prior conviction
allegation with respect to one current count and refrain from dismissing
the prior with respect to another current count. (People v. Garcia (1999)
20 Cal.4th 490, 493-494.) This is important, because even when it's
clear the judge cannot be persuaded to dismiss a prior strike altogether,
it may yet be possible to limit the damage. In Garcia, it was helpful
that the defendant had no history of violence, and his prior serious
felony convictions arose from a single period of aberrant behavior.
(Id. at pp. 494-495.)