In the early 1990s, states and the federal government began passing "three strikes and you're out" laws. These tough-on-crime measures significantly increased sentences for repeat, violent offenders. As the name implies, three "strikes"—three convictions for certain kinds of offenses—trigger these tough sentences, including life in prison.
Between 1993 and 1995, 24 states and the federal government implemented three strikes laws. These laws responded to public frustration with the idea that states and the feds released repeat, violent offenders back on the streets too quickly.
Washington and California were the first states to enact three strikes laws. As other states followed, the label of "three strikes" stuck. Despite having the same name, though, states' 3-strikes laws vary substantially in how they work and who they punish.
Three strikes laws are similar to repeat offender laws. All states have laws that enhance penalties for offenders who have some kind of criminal history. For example, someone who has already been convicted of driving under the influence (DUI) will likely get harsher punishment if convicted of DUI again.
Three strikes laws, however, are often designed to ensure that certain kinds of offenders receive substantially more severe penalties for reoffending, sometimes up to life imprisonment. Laws and courts sometimes refer to these defendants as "career criminals" or "habitual offenders." These laws may mandate (require) judges to impose the sentence, rather than giving a judge discretion in sentencing. And typically, three strikes penalties are much harsher than general repeat offender enhancements. Instead of adding years to a sentence or increasing the penalty level, three strikes laws may double the sentence, bump up the penalty by say 10, 20, or 30 years, or impose a life sentence.
Three strikes laws generally deal with serious and violent felony offenses. Common crimes considered "strikes" include rape, murder, arson, and robbery. But the lists of "strikes" vary by state—some include nonviolent offenses like treason, drug trafficking, felony theft, and bribery. Most states list out the crimes that qualify as strikes. Whereas repeat offender enhancements may apply to all felonies, three strikes penalties generally kick in only for specified offenses.
Despite being known as three strikes laws, the actual number of felonies that trigger an "out" or life sentence differs from state to state. In some states, two strikes or felonies can result in a sentence of life in prison without parole. In others, it takes three or even four strikes to get a life sentence.
Some states impose enhanced penalties after having just one strike on your record—in addition to the maximum sentence imposed after three strikes. For instance, a state's law might double a defendant's sentence upon conviction for a second serious felony and impose a life sentence for a third serious felony conviction.
In some states, a defendant can request that the judge disregard or dismiss a "strike" from their record. For instance, California law permits judges to dismiss certain strikes in the interests of justice. (Cal. Penal Code § 1385 (2022).) A defendant might also be able to challenge the use of a prior felony as a strike if it doesn't meet the statutory requirements. Say the law counts strikes for any felony involving a weapon. A defendant might argue that the jury or judge never made a finding on the record that a weapon was involved.
When they were initially enacted, over half the states had three strikes law. Many still have these laws but they've changed over the years. The federal government's three strikes law imposes a mandatory life sentence when:
(18 U.S.C. § 3559 (c) (2022).)
In the years since the initial three strikes laws, many critics opposed these mandatory penalties and called for changes. Stories of life sentences imposed for nonviolent crimes—such as felony theft—prompted many states to pass reforms of their original three strikes laws.
In California, the original law did not require the third strike to be on the list of serious or violent crimes that counted as strikes. Rather, any felony conviction counted as the third strike—even when the felony was elevated from a misdemeanor only because of the offender's prior criminal record. (Lockyer v. Andrade, 123 S.Ct. 1166 (2003).) The law became controversial after the media brought attention to individuals getting life sentences for crimes that would normally only get a few months in jail. California voters have since approved changes to the law multiple times.
Many states have eliminated the mandatory imposition of the longer three-strikes-triggered sentences, instead allowing judges more flexibility to decide the sentence that fits the crime and the particular defendant. Additionally, common state reforms include:
Given the complexity of three strikes laws and the possibility of lengthy sentences, it's critical to consult a criminal defense attorney if you face felony charges. In fact, it's important to talk to a lawyer if you've been charged with any kind of crime, to understand how the law could impact you and begin to navigate the justice system.