"Three Strikes" Law: Does It Really Work?
Greg Jones, Michael Connelly, Ph.D., and Kate WagnerState Commission on Criminal Sentencing PolicyAugust 2001
IntroductionOver the past seven years, considerable debate has centered on the well-publicized "three strikes and you're out" policy. The underlying notion behind this policy is sometimes referred to as the "Six Percent Solution" (Beres & Griffith, 1998). More specifically, the notion asserts that a small percentage of criminals, roughly 6%, commit approximately 70-80% of the total crimes (Wolfgang, 1972). Therefore, the purpose of the passing of "three strikes" laws was to provide a method for society to attempt to capture this highly active and dangerous group of career criminals, thus reducing crime levels substantially.
Despite the great support and legislation of "three strikes" laws that began in 1993, culminating with the first enactment by California in 1994, many critics feel that this law has not been all it was supposed to be. Much of the criticism and backlash attacks "three strikes" laws as being an ill-advised policy, a quick fix solution to the dynamic problem of crime, a policy with no or at best modest deterrent effect, and lastly, a financial burden to the correctional community and taxpayers. Furthermore, critics say, this law, which currently has been adopted by thirty-seven states, contains many inconsistencies across the states. Some of these inconsistencies include what crimes (violent or nonviolent) actually count as a strike, the possibility of parole or no parole, whether the person should be sentenced as a habitual offender, and whether the offender should receive a mandatory life sentence. In response, some states such as Washington suggest that "three strikes" laws are effective given proper implementation.
The questions of greatest concern, however, most observers agree, are if the "three strikes" laws have had a substantial impact on reducing crime, if it deters crime, and if it is a practical and sensible policy. To address these issues this report will provide a brief overview of the current research on "three strikes" laws in California, and other states. Then it will discuss some of the implications of "three strikes" policies and present recommendations from the literature on the topic.
Research on ImpactA study conducted by Stolzenberg and D'Alessio (1997) examined the impact of California's "three strikes" law on serious crime rates. They studied the 10 largest cities within the state (Anaheim, Fresno, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, Santa Ana) and found that the "three strikes" law did not decrease serious crime or petty theft rates. According to their analysis, preexisting trends such as the declining national crime level accounted for most of the reduction in levels of crime. Furthermore, the reasons they attributed to the minimal impact of the "three strikes" law were: 1) that the current sentencing practices already confine a substantial portion of high-risk offenders, 2) incapacitating offenders at the end of their criminal careers would more than likely not have any type of impact on the overall crime rate, and, 3) juveniles were not affected by the "three strikes" law.
Another article by Susan Turner (2000) found that, according to studies done by RAND, "three strikes" and "truth-in-sentencing" laws have had little impact on crime and arrest rates. In addition, UCR reports showed that states that did not have "three strikes" or "truth in sentencing" laws had lower index crime rates than those that had both types of "get-tough" laws (Turner, 2000). Increased spending on the correctional level was another influence in states that have these laws. Finally, she mentioned that policymakers should expect some more changes in the prison population and should reevaluate and reassess much of the piecemeal legislation that has been done up to this point.
A study by conducted by Beres and Griffith (1998) found that only a modest reduction in crime can be achieved by "three strikes" laws. Their analysis, which focused on the relationship between incapacitation and the crime rate, indicated that the reasoning often used surrounding the "Six Percent Solution" is essentially flawed. First, the original study done by Wolfgang, Figlio, and Sellin (1972) provided little evidence that incarcerating this 6% of career criminal actually solves the crime problem. Rather, it showed that a significant percentage of young males engage in substantial criminal activity at some point during their adolescence years (1998). Secondly, it is humanly impossible to accurately identify this elusive 6% of the male population. The National Academy of Sciences Panel on Criminal Careers and Career Criminals found that selective incapacitation was, in fact, impracticable and empirically flawed because no system of prediction could be developed that could identify high-rate serious offenders in advance with ethically defensible and economically affordable accuracy (Tonry, 1996).
Third, many of these high-rate, criminally active offenders are already in prison regardless of "three strikes" laws and will spend most of their criminal careers there anyway. Taking this into consideration, the only offenders that are left to snare consist mostly of low-rate, non-violent offenders. Fourth, one of the mathematical flaws that most people commit involves social harm and how they calculate the amount of crimes that will be prevented if the current inmates were not imprisoned. This is a common flaw because the average crime rate of current inmates is likely to be much higher than the average crime rate of the additional inmates who would be incarcerated (Beres, 1998). In other words, those offenders already in prison are many of the high rate offenders or part of the 6%, whereas the additional inmates who will be added will consist mostly of lower-rate offenders. Finally, they state that sentencing repeat offenders to longer terms is not necessarily a mistake, but that selective incapacitation (of the 6%) will not have a real impact on the major crime rate.
On the other hand, an article in Corrections Today by Joseph Sandoval (1996) provides some support for "three strikes" laws. He found that as of April, 1996, more than 1600 three-time felons with serious or violent criminal histories, and nearly 16,700 two-time felons with similar backgrounds, had been taken off the streets because of "three strikes" laws. Furthermore, a recent study by Sacramento Bee found that 84% of the "third strike" inmates had been convicted at least once for a violent offense and an average of five felonies overall.
A major criticism of "three strikes" laws is that there is no consistency of legislation and implementation across states that utilize this policy. The most disturbing component concerning "three strikes" laws is the actual "strike" itself. According to a national assessment of "three strikes" laws by Turner et al. (2000), many inconsistencies exist among states that have implemented the statute between those crimes that count as a strike and those that do not. They found that only two crimes out of a total of 247, murder and kidnapping, were consistent in every jurisdiction that enacted a "three strikes and you're out" policy. In addition, only these following seven crimes: murder, kidnapping, robbery, rape/sexual assault/battery, arson, assault/battery, and burglary, were included by at least 50% of the jurisdictions that enacted their policy (Turner, 1995). Some states like Georgia, for example, have a "two strikes" policy that permits offenders convicted of their second offense to be given a life sentence.
Another finding was that many of these jurisdictions included a wide range of nonviolent and drug-related crimes, which has already shown to have some significant implications on certain individuals. Surprisingly, they even found that some of the crimes included in a few states were basically outdated. For example, North Carolina lists train robbery and killing an adversary in a duel as strikes. Other states incorporated white-collar crimes as strikes such as contaminating a public water supply or distributing adulterated or misbranded foods or drugs. Finally, states such as Maryland, California, Connecticut, Wisconsin, and the federal government have gone so far as to include attempts of the crime outlined in the statutes as strikes.
The last line of argument against three strikes policy comes from the judges and prosecutors. It is widely stated that many judges and prosecutors often resist imposing unduly penalties that they believe are unjust, sometimes by deception (Tonry, 1998). This type of activity is often linked with the idea of "court community" where the local judges and prosecutors in a particular area have a common understanding between each other on handling such situations to provide a just and reasonable sentence.
Research on DeterrenceA study by Michael Vitiello (1997) gave partial attention to "three strikes" laws and deterrence in the state of California. In 1994, the major crime rated dropped 4.9% compared to only 2% nationwide. However, Vitiello cautioned against attributing this drop solely to "three strikes" legislation because the overall crime rate was already on the decline for the prior four years. He also argued that, if the "three strikes" law was really a deterrent, one should notice a significant decline in the juvenile crime rate. According to this study, data showed that the juvenile violent crime rate continued to increase after 1994, which made the deterrent effect basically nonexistent, at least in the juvenile spectrum.
Another article by John Schafer (1999) discussed the results of a survey about the "three strikes" law given to a sample of males from a youth center in Lancaster, CA. This survey suggests that when offenders are confronted with the severity of their punishment in specific, personal terms, the law has a deterrent effect, but, if the law is defined in general terms, the deterrent effect wanes (1999). Besides this effect, his research found, interestingly enough, that offenders with children were less likely to be deterred by the "three strikes" law than offenders without children. Lastly, Schafer mentioned that instead of deterring crime, this law may in fact lead to an increase in crime. For instance, if offenders commit a crime increasing their risk of being caught and know they are facing life in prison, they may be propelled to kill victims, witnesses, and police officers to avoid this life sentence.
A similar article entitled The Lethal Effect of Three Strikes Laws (2001) actually looked at this phenomenon. The researchers found using a state-level multiple-time-series design found that "three strikes" laws were associated with 10%-12% more homicides in the short run and 23%-29% more in the long run. Moreover, these effects occurred in almost all 24 states they examined with "three strikes" laws. Finally, they stated that these laws have had a minimal impact on reducing the levels of crime and through deterrence or incapacitation.
An article by Marc Mauer (1996) gave more insight into the "three strikes" debate. He mentioned how many proponents of "three strikes" laws fail to acknowledge that murder rates are declining in cities and states without "three strikes" legislation. For instance, in 1995 the murder rate in New York declined by 25%, while Tennessee's murder rate increased by 42% (Mauer, 1996). The peculiar twist to this statistic is that the state of Tennessee had the "three strikes" law. He also noted that other factors might have impacted California's crime drop since their "three strikes" legislation, such as the demographic changes of young males and a drop in the state unemployment rate. Some proponents are convinced that many offenders have decided to turn their life around simply because of "three strikes" laws. Mauer asked however why offenders would suddenly be "scared straight" by the "three strikes" laws when there exist even harsher policies, such as the death penalty, that has not shown a clear impact.
A recent book by Zimring, Kamins, and Hawkins (2001) examined the issue of deterrence and "three strikes" legislation in California. They conducted an examination of three cities: Los Angeles, San Diego, and San Francisco, and crime rates for 1993-1995. They found the maximum amount of crime that can be expected to be prevented by this policy is one in ten crimes, far below figures forecasters predicted.
Alfred Blumstein, chairman of National Academy of Sciences panels on deterrence and incapacitation, adds that there are some people who simply do not care about their consequences (Tonry, 1998). Those who cannot find their niche in the legitimate economy do not fear an extended stay in prison because the threat of not succeeding by some means is greater than a sentence to the penitentiary.
Implications of ResearchSince much of the proposed and implemented "three strikes" legislation varies across states, since nonviolent and drug-related incidences are being counted as strikes, and since the theory underlying the laws has been negatively appraised, many problems have incurred with "three strikes" policy. In addition, there are several specific issues including cost savings, racial discrimination, and judicial and prosecutorial discretion, which have permeated "three strikes" research and analysis.
According to critics such as Vitiello, "three strikes" laws have done two things. First, they have exarcerbated the racially discriminatory effects of sentencing policy. As a continuation of the "War on Drugs," propaganda many states which have enacted "three strikes" include certain drug-related crimes as a strike. Previous research shows that minorities, particular African-Americans, have been disproportionately incarcerated due to this approach. Under "three strikes" laws, African-Americans have been incarcerated at 13.3 times the rate of whites on drug offenses (Vitiello, 1997). Other evidence shows that in California, African-Americans have constituted 20% of felony defendants, but they have comprised 43% of offenders sentenced under the "three strikes" law (Mauer, 1996).
The second problem with "three strikes" laws is cost. A study done by RAND concluded that California's "three strikes" law will cost an estimated $5.5 billion over the next 25 years (Turner, 1995). In addition, "three strikes" laws create a larger aging prison population by incarcerating offenders who are essentially past their "active criminal careers;" nevertheless, they are in prison because of a third strike. These aged prisoners not only require more care and attention, but they are more expensive costing nearly three times the average prisoner.
Other problems with "three strikes" implementation include "clogging of the courts" and targeting nonviolent offenders. As a result of "three strikes" implementation many courts have become inundated with loads of cases, which lessens their ability to deal with offenders effectively and efficiently. Besides this burden, approximately 80% of cases involving second and third strike sentences have been for nonviolent offenses, including drug possession, petty theft, and burglary (Mauer, 1995).
Lastly, many critics have asserted that "three strikes" laws withdraw discretion for judges to commit offenders to diversion programs, conflicts with the U.S. Constitution (i.e., double jeopardy and ex post facto law), reduces the amount of good-time credits, and requires courts to sentence certain defendants consecutive rather than concurrently.
ConclusionsAccording to experts "three strikes" laws have not had a significant impact on reducing crime. Many studies have shown that reduced crime rates cannot be significantly attributed to the "three strikes" laws (Beres & Griffith, 1998; Stolzenberg and D'Alessio, 1997; Turner, S., 2000). To understand the entire picture, you must take into account other changes that have been occurring including an improved economy, changing drug markers, demographic changes, and strategic policing (King & Mauer, 2001).
In terms of deterrence, the evidence suggests that "three strikes" policy has had modest to little effects. The main objective of this policy, to incarcerate violent offenders, has been neglected for the most part. Most offenders receiving sentences under three strikes have been drug, property, or other non-violent types of offenders. In California, the DOC reported that 57.9% of third strike cases involved non-violent offenses as were 69% of second strike cases (King & Mauer, 2001).
So the question remains is "three strikes" a sensible policy? The majority of the research presents a negative view of the policy, however, some researchers point out that it is difficult to determine because of the downward crime trend occurring nationally and other economic changes taking place since the early 1990s. One consistent projection is that "three strikes" laws will contribute substantially to the aging of the prison system. This poses a serious threat to the correctional system in future years, being that elderly inmates, those 50 and over, require more expenditures for health care and other special needs than a younger prisoner. Current estimates are that it will cost $1.5 million to incarcerate an elderly prisoner for the minimum 25 years, which is the sentence given if convicted on third strike (King & Mauer, 2001).
Recommendations from the ResearchProponents of "three strikes" laws argue that they have been effective in reducing serious crime in states implementing the laws. Critics, on the other hand, point toward other factors that are responsible for the crime reduction and note similar crime drops in the same time periods in states without "three strikes" laws. These opponents argue for a range of alternative actions to address what they view as flaws in the "three strikes" approach. These recommendations include:
Find better cost-effective measures, conduct cost comparisons with other criminal policies.
More research that identifies more precisely, the specific mechanisms that have led to crime reductions in states that have enacted "three strikes" laws (i.e. mandatory minimums, restrictions on parole and early release).
Require that all strikes be committed within a specified period of street time, at least for nonviolent offenses, which will limit "three strikes" laws to high-rate offenders.
Policymakers should craft "three strikes" proposals that are more sensible and narrowly focused-including the most serious crimes-and that permit flexibility-professional discretion by prosecutor, judges, and correctional officials.
Policymakers should consider repealing or better justifying their use of "three strikes" laws. If not repealed, policymakers should include "sunset provisions," which would assure that laws passed in the passion of the moment will not endure for decades (Tonry, 1998).
A closer examination of those states, which have had crime reductions without the use of "three strikes" laws.
Selective release of older low-risk inmates reducing prison population and geriatric costs.
Selective release of inmates convicted of a third strike for nonviolent, drug-related crimes and other crimes such as petty theft, but taking into consideration their previous strikes.
Revise the drug-related strike that incapacitates mostly low-level offenders, which can reduce prison overcrowding with prisoners that do not present a grave social harm and racial disparity.
Explore other methods of limiting freedoms such as electronic monitoring or home detention.
Examine rehabilitation programs and implement those that have worked. In other words look for more ways to rehabilitate offenders than to incarcerate.
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Sandoval. J. (1996). Three Strikes is Good Criminal Justice Policy. Corrections Today, 58: 22.
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