Three Strikes Law

“Three Strikes and You’re Out” laws are intended to keep career criminals (“habitual offenders,” as they’re often known in the legal system) locked up for life. In general, anyone who is convicted of three felonies—three strikes—can receive (or must receive) a very long prison sentence. In some states, it’s 15 years to life; in others, 25 years to life.

Washington was the first state in the nation to adopt a three-strikes law; now, about half the states have some kind of three-strikes law, most enacted in the 1990s. States with three-strikes laws include Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Maryland, Missouri, Montana, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin.

Which Convictions Count as a Strike?

In most states, a strike is any conviction for a serious or violent felony, which typically includes:

Nonviolent Crimes as Third Strikes

In some states, the third strike does not have to be a serious or violent offense. A conviction of, for example, petty theft or passing a bad check could be a third strike. For example, in one case often cited by those seeking to reform California’s law, a man was sentenced to life imprisonment for stealing some videotapes from a grocery store, a crime that would normally be punished by a few months in jail. He had two prior felony offenses; the minor theft was his third strike. The U.S. Supreme Court upheld his sentence. (Lockyer v. Andrade, 538 U.S. 63 (2003).)

Some states, however, have considered reforming their three strikes laws—and some have actually reformed them. In California, for example, voters passed 2012's Proposition 36, which required that a third strike be a serious or violent felony. It also allowed for resentencing of offenders serving life sentences where the third strike was neither serious nor violent and a judge decides that resentencing wouldn't unreasonably risk public safety.

Also, courts have invalidated California three-strikes sentences if they are inappropriately harsh. For example, a California man who was late in updating his annual registration as a sex offender was convicted of failing to update the registration on time. Because he had two prior felony convictions (the most recent 12 years earlier), he was sentenced to 28 years to life.

The appellate court decided that because no harm had resulted from his late registration, the penalty was so much harsher than it would have been without prior strikes (16 months to three years), and the violation did not indicate that the defendant would commit another crime, the penalty was “grossly disproportionate” to the crime and so unconstitutional as a violation of the Eighth Amendment. (Gonzales v. Duncan (2008).)

California also counts juvenile felony convictions as strikes. So someone who commits a felony at age 16, and later commits another as an adult, would have the first one counted as a strike.

Taking a Second Look at Three-Strikes Laws

There is much debate over the efficacy of three-strikes laws now that they have been on the books in many states for many years. Although the laws were intended to make sure “the worst of the worst” criminals were never released into society, there is some evidence that the biggest impact has been on lower-level criminals. Many repeat robbers, for example, have been sentenced to life in prison in Washington, even though their crimes were not violent.

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