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Three Strikes Safeguard Can Save the Law

Revise Three-Strikes? At What Cost?

Joseph M. Bessette and Jennifer E. Walsh

In 1995 police in San Diego County arrested a gang member riding in a car with two other convicted felons and a sawed-off shotgun. Only 19 days earlier he had been released from prison after serving his third prison term, most recently for a 1989 gang shooting. He had previously served time for two robberies with a firearm and at least one other felony. Most Californians would likely agree that this is precisely the kind of offender that the state’s three-strikes law, passed by a 72-28% popular majority in 1994, was designed to target and remove from society for a lengthy period of time. And, indeed, prosecutors charged this gang member as a three-strike offender; the court convicted him; and he is now serving a 25- year-to-life prison sentence. But if the proponents of Proposition 66, which will appear on the November ballot in California, get their way, dangerous recidivists like this will no longer be subject to the three-strikes law.

This is because Proposition 66 would dramatically restrict the reach of the three-strikes law by requiring that all three strikes be from a specific list of “serious” or “violent” crimes in the California Penal Code. Current law requires that the first two strikes be from this list, but the third strike may be any felony. It turns out that possession of a sawed-off shotgun is not on the Penal Code list of “serious” or “violent” crimes. Nor are many other crimes that the average Californian would likely consider serious: burglaries of stores and businesses, trafficking in hard drugs to adults, and manslaughter, among others. In addition, Proposition 66 would remove from the Penal Code list of “serious” and “violent” felonies such crimes as many residential burglaries, non-residential arson, conspiracy to commit assault, and participation in gang-related felonies.

Despite the steep reduction in California’s crime rate since the enactment of three-strikes, proponents of Proposition 66 maintain that the law: (a) blindly sentences individuals without considering the circumstances of the offense or the characteristics of the offender, (b) targets minor offenders; and (c) unnecessarily and substantially raises the cost of the state’s prison system. These arguments, however, are based not on the facts of the law’s implementation but on initial speculations about the law might work. Today, a decade of research has proven all of these suppositions to be false.

First, the law does not operate to impose lengthy sentences mechanically and blindly upon all eligible offenders. Little known to the public, the law contains an “escape clause” that allows prosecutors to move to dismiss one or more of the offender’s prior strike offenses “in the furtherance of justice.” In 1996, the California Supreme Court ruled that judges possess the same authority. By evaluating the unique circumstances of each case – such as the seriousness of the current offense, the severity of the prior record, and the length of time between strikes -- prosecutors and judges can, in effect, turn three-strike offenders into two-strike offenders. The latest research shows that prosecutors and judges have not been timid in using this discretion: across the state they reduce three-strike offenders to two-strike offenders in 25-45% of all eligible cases.

Two-strike offenders receive a sentence twice the normal length, which is almost always much shorter than the 25-years-to-life required for three-strike offenders. Thus, although we commonly think of three-strikes as a mandatory sentencing law, it does not, in fact, mandate that any offender, or class of offenders, be subject to its tough sentencing provisions.

Consequently, despite the claim of the critics, the law does not target minor offenders. Every three-strike offender must have committed two prior serious or violent felonies in order to be eligible for the enhanced sentence. Many of those who commit less serious third offenses are downgraded to two-strike offenders. As a result, two-thirds of the three-strikers imprisoned since 1994 have been sentenced for a violent offense, arson, burglary, or illegal possession of a weapon. Many of the remaining offenders have been convicted of such so-called “non-serious” offenses as grand theft (120 cases); vehicle theft (235); the manufacture or sale of illegal drugs (250), or the possession of illegal drugs with intent to sell (309).

Finally, supporters of Proposition 66 argue that revising the law will substantially reduce the cost of running the state’s prisons. Yet, this, too, is not based on fact. Although analysts originally predicted that the three-strikes law would add hundreds of thousands of inmates to the state’s prison population in its first decade, in fact less than 5% (7,458) of the state’s 163,500 prisoners are serving three-strike sentences. (Another 20% are two-strike offenders.) If every three-striker were released from prison whose third strike was not one of the Penal Code’s “serious” or “violent” crimes (Proposition 66 applies retroactively), the savings would amount to perhaps 2-3% of the state prison budget, which itself consumes only about 6% of all state government spending.

And what cost would be paid in public safety by releasing dangerous offenders like the gang member mentioned above? California’s three-strikes law does not wait until the proven violent recidivist has raped, robbed, or assaulted again. It comes down hard at the first sign that the offender has resumed his felony career. It sends one simple message to dangerous recidivists in California: “Don’t again commit a felony, any felony!” It is a message endorsed by every District Attorney in the state, by the Attorney General, and by the Governor, all of whom publicly oppose Proposition 66. They understand, as research confirms, that the three-strikes law targets the most serious threats to public safety in California and makes ample provision for adjusting the punishment to fit the crime, and the offender.

Joseph M. Bessette is Professor of Government at Claremont McKenna College and Associate Director of its Henry Salvatori Center. Jennifer E. Walsh is Assistant Professor of Criminal Justice at California State University, Los Angeles, and author of Tough for Whom? How Prosecutors and Judges Use Their Discretion to Promote Justice under the California Three-Strikes Law, published by the Salvatori Center.

Three Strikes Safeguard Can Save the Law

Jennifer Walsh, Ph.D.

On November 5, as Americans across the nation head to the polls to elect their leaders, a group of attorneys will head to the U.S. Supreme Court to debate the fate of California’s most infamous sentencing law: “Three Strikes and You’re Out”.

Before the Supreme Court are two cases that challenge the constitutionality of the California three strikes law. The high Court’s review of Lockyer v. Andrade and Ewing v. California will decide if the state’s repeat offender law yields “grossly disproportionate” sentences that violate the Eighth Amendment to the U.S. Constitution.

The nature of the third strike offense is at the heart of both cases. Andrade was sentenced to 50 years to life for two felony petty theft convictions, having stolen several videotapes from two Kmart stores on two separate occasions; each theft qualified as a third strike. Ewing was sentenced to 25 years to life for grand theft after he stole three golf clubs worth $1,200. This offense also qualified as a third strike.

Although both of these defendants had committed a number of serious felony offenses and had been sentenced to prison several times over the course of their criminal “careers,” their lengthy sentences for relatively minor crimes once again raises the question of whether California’s strike zone is too broad.

According to the law, the first two strikes must be felonies that the state legislature has designated as either “serious” or “violent.” Typical offenses of this nature include murder, rape, robbery, and residential burglary. However, the third strike, or “triggering” crime, can be a lesser felony offense. Examples of these lesser offenses include drug possession, assault with a deadly weapon, or, in the case of Andrade, felony petty theft.

Although this issue is being reviewed by the Supreme Court for the first time, the broad strike zone issue is a familiar one for most Californians. The case of Jerry DeWayne Williams, known to most as “the pizza thief,” has been the cause célèbre for three strike opponents. Convicted for stealing a slice of pizza from a group of children, Williams became eligible for the third strike sentence because of his lengthy criminal history. His original sentence of 25 years to life prompted political activists to push for a wholesale revision of the law.

Today, California’s version of three strikes is facing obliteration on two fronts: immediately, by the Supreme Court as it reviews the issue of disproportionate sentencing, and also by political activists, who continue steadfast in their efforts to amend the law.

Nonetheless, there is a unique aspect of California’s three strikes law that may yet save it from demise.

A feature of the law—rarely found in mandatory sentencing provisions—gives prosecutors and judges substantial discretion to bypass the law, thereby shielding undeserving three strikers from the mandatory minimum sentence. This little known element may keep the law intact, despite the impending constitutional challenge and ever present legislative battles that keep advocates of the law on edge.

Under the law, prosecutors and judges are able to review three strike cases in order to determine if imposing the mandatory minimum sentence would undermine the “furtherance of justice”. When this occurs, a third striker is sentenced as a second striker, resulting in a doubled sentence instead of the minimum sentence of 25 years to life. Consequently, this exercise of discretion by prosecutors and judges prevents undeserving offenders from being sentenced too harshly.

In fact, the notorious “pizza thief” was a recipient of this discretion. Williams, who was originally sentenced to an indeterminate life sentence, later had his sentence reduced to six years. Citing his nonviolent criminal history, lack of weapon use, and relatively minor third strike offense, the sentencing judge agreed to strike a prior conviction in order to promote the interest of justice.

When three strikers like Williams are released from the mandatory constraints of the three strikes law through an act of discretion, it reassures us that the system is concerned with the proportionality of the punishment. And, giving prosecutors and judges the opportunity to call some offenses “balls” instead of “strikes” means that when offenders like Andrade and Ewing are fully sentenced it is because prosecutors and judges have independently decided that they are deserving of this punishment.

Although some might believe that public pressure keeps judges and prosecutors from using their discretion regularly, statistics indicate that discretion in three strike cases is invoked frequently and consistently. A 1998 survey of California District Attorneys revealed that prosecutors in urban jurisdictions use discretion in approximately 20-40% of eligible cases; nearly 75% of the respondents indicated that they would use discretion in cases involving a minor current offense. An evaluation of judicial discretion exercised in San Diego County found that judges exercised discretion in 29% of eligible three strike cases. They were also 100% more likely to use discretion if the triggering offense was minor. Moreover, judges were more likely to strike a prior strike if the defendant had no history of violence and no history of weapons possession or weapons use.

Perhaps most reassuring is the data that shows that in San Diego County, over half of the initial third strike filings that involved a minor third strike offense were later downgraded to second strike offenses. This exercise of discretion by prosecutors and judges prevented these defendants from receiving the enhanced sentence when they were perceived as undeserving of the lengthy punishment.

Findings like these confirm that the judicious exercise of discretion under the California three strikes law creates a safeguard for defendants who are technically eligible for the mandatory sentence, but whose past and present conduct is considered to be outside the spirit of the law.

Although there is bound to be disagreement over the assessment of deservedness for certain offenders, this potential disagreement does not detract from the fact that no third striker is sentenced to an indeterminate life sentence without first passing a review at two separate stages of the process. The first occurs after prosecutors determine initial eligibility for the enhancement and the second occurs at sentencing when the judge reviews the entire criminal history. Prosecutors and judges must independently and separately determine that each third striker is deserving of the enhanced sentence before it is imposed.

It is this feature that makes this mandatory sentencing law different from others that the Supreme Court has previously reviewed. It is also this feature that prevents many offenders from striking out, despite the legislation’s specification of a generous strike zone.

The final result of this safeguard is that the bulk of third strikers sentenced to the mandatory minimum sentence are not shoplifters or other petty offenders, but rather serious and/or violent offenders. State statistics indicate that the third strikers in prison include 294 for murder; 34 for manslaughter; 1,408 for robbery; 356 for assault with a deadly weapon; 416 for other assaults or battery; 136 for rape; 241 for lewd act upon a child; 136 for other sex offenses; 83 for kidnapping; 776 for residential burglary; 288 for possession of drugs for sale; 191 for sale of drugs, 28 for manufacturing drugs; 356 for weapons-possession; and 25 for arson.

Ultimately, having a broad strike zone does not mean that the defendant is helpless at the plate. Giving the state’s umpires the ability to call balls as well as strikes increases the likelihood that the offender will survive to face another pitch.

Jennifer Walsh is an Assistant Professor in the Department of Criminal Justice and Criminalistics at California State University, Los Angeles and a Research Fellow for The Salvatori Center for the Study of Individual Freedom in the Modern World at Claremont McKenna College.

This report on the effect of the California Three Strikes Law in PDF form graphically demonstrates the points made in these articles