Three-Strikes Legislation

History

In December 1993, Washington State became the first jurisdiction to enact legislation known as “Three strikes and you're out.” California followed in 1994, and by the late 1990s more than 26 U.S. states and the federal government had also introduced similar laws. Prior to the introduction of three-strikes legislation, habitual offender statutes existed in most states but were rarely applied.

The impetus for the change in sentencing practices arose, in part, from public outrage over cases in which offenders with prior felony convictions committed heinous violent crimes. Three-Strikes Laws coincided with the “Get tough” trend and adoption of punitive sentencing practices across a range of issues, including firearms enhancements, mandatory minimums for drug offenses, boot camps, and truthin-sentencing legislation. In the state of Washington, the 1988 murder of 29-year-old Diane Ballasiotes by a sex offender on work-release, and in California, the murders of 18-year-old Kimber Reynolds in 1992 and 12-year-old Polly Klaas in 1993 by repeat violent offenders were cited as the rationale for enactment of three-strikes legislation. Politicians and lawyers argued that the public believed that existing laws did not protect them. This concern, whether based in reality not, led to the expansion of Three-Strikes Laws across the nation and the adoption of three-strikes principles as part of federal sentencing policy.

Features of Three-Strikes Legislation

Three-Strikes Laws abandon rehabilitation as a purpose of punishment in favor of deterrence, incapacitation, and “just deserts.” The laws are sometimes justified by the “6% solution,” which hypothesizes that incarcerating a small number of dangerous offenders will significantly reduce the crime rate and enhance public safety. This theory is derived from criminologist Marvin Wolfgang's cohort studies of career criminals in the 1940s and 1950s, in which 6% of the studies' sample of offenders were found to be responsible for more than 50% of total crime. Based on this finding, Three-Strikes Laws should enhance public safety by identifying and incarcerating those who are inclined to reoffend, but scholars dispute the veracity of Wolfgang's research and its contemporary relevance.

Despite similar terminology, Three-Strikes Laws take different forms across the various state and federal criminal justice systems. All of the laws require longer periods of incarceration for offenders convicted of violent crimes, but the crimes that count as “strikes,” the numbers of strikes required before someone is “out,” and the meanings of “out” vary. California's legislation is the most expansive, allowing strike three to be any felony and doubling the sentence for a second strike. Washington State has a narrower “strike zone” but includes nonviolent offenses such as treason, promoting prostitution, drug-related felonies, and attempts. Across the states, “out” can mean an enhanced sentence with a set minimum or maximum, life with the possibility of parole, or life without the possibility of parole. “Out” in Washington is life without the possibility of parole. In California, “out” is a sentence of 25 years to life. Georgia, South Carolina, and Montana mandate a sentence of life without the possibility of parole after two violent felony convictions, and Washington added a two-strikes sentencing provision for sex offenders in 1996. Other variations on such laws include four-strikes provisions and ranges of sentencing options that are left to the discretion of the courts.

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