Evaluating the disparities in 3 strikes laws across the country
The implementation of the law varied widely between counties. Why? Aside from geographic disparities, what other disparities emerged in the law’s implementation and outcomes? How could those disparities be reduced?
he Current State of the Implementation of Three Strikes
While Three Strikes is a statewide law, its implementation is carried out at the county level. Research has found that substantial variation exists in the law’s application from county to county, and even from case to case within counties. A major source of discretion is the ability to dismiss or ignore prior serious or violent offenses, which must be “pled and proved,” to avoid triggering a second- or third-strike sentence. Prosecutors have always been granted this discretion, and the California Supreme Court’s decision in People v. Superior Court (Romero) extended similar decision-making authority to judges (CaliforniaLegislative Analyst’s Office, 1997). A second source of discretion is the prosecutor’s authority to determine whether to charge what is known as a “wobbler” offense as a misdemeanor, which carries a maximum sentence of one year in jail, or as a felony, which could carry a 25 years to life prison sentence if it were charged as a third strike under the original form of the law (Chen, 2008b).
The penal code allows prior strike convictions to be dismissed or ignored by prosecutors or judges “in the furtherance of justice.” This discretion is used very frequently. A study using data from 2006 found that among California prison inmates admitted to prison between 2002 and 2006 with two prior serious or violent convictions before the current felony conviction, only 14% were actually serving sentences of 25 to life, even though they were all technically eligible for the third-strike sentence (Chen, 2013). Frequent use of prosecutorial and judicial discretion has served as a “safety valve,” helping to prevent California’s already overcrowded prisons from becoming even more overwhelmed with nonserious and nonviolent inmates, and keeping the costs of implementation below some of the highest initial estimates (California Legislative Analyst’s Office, 2005; Greenwood, Rydell, Abrahamse, Caulkins, Chiesa, Model, & Klein, 1994). Strong evidence indicates that much of the variation in implementation results from prosecutors’ and/or judges’ exercise of this discretion in an effort to restore some proportionality to sentencing under Three Strikes. A clear positive correlation was found between the severity of an offender’s current offense and the likelihood of having received a 25-to-life sentence (Chen, 2013). Furthermore, all else equal, eligible offenders with a higher number of serious and violent priors were also more likely to be serving third-strike sentences (Chen, 2013).
What Research has Taught Us: The Effects of Three Strikes
Three Strikes was passed in California with the stated intention of enhancing public safety through the incapacitation and deterrence of repeat offenders. As evidence of the law’s effectiveness at crime reduction, proponents of the law point to the fact that crime rates have declined dramatically in California since the law’s passage. For example, in opposition to Proposition 36, the “Save Three Strikes” web page stated: “What’s to fix? Shortly after 3 Strikes passed in 1994, California crime dropped in half. Half the crime also has meant half the criminals” (www.savethreestrikes.com). Statements like this imply that Three Strikes was responsible for the dramatic decline in crime rates, but fail to acknowledge other facts: crime rates began dropping before Three Strikes was enacted; crime rates fell as much and even more in many states that did not adopt Three Strikes; and declines in crime were no larger in California counties with high rates of Three Strikes usage than in counties that applied the third-strike penalty sparingly (Chen, 2008a; Zimring, Hawkins, & Kamin, 2001).
Several methodologically rigorous analyses have investigated whether the Three Strikes’ crime reduction objective has been accomplished. Prominent criminologist Michael Tonry provided a summary of fifteen major published empirical analyses of the deterrent effects of Three Strikes in California, and found that only one concluded that the policy had led to a statistically significant reduction in crime (Tonry, 2009). The other 14 studies concurred that California’s Three Strikes law did not significantly reduce crime, despite the fact that the researchers relied on a variety of different units of analysis (including cities, counties, and states) and statistical methods (including econometric time-series designs, noneconometric time-series comparisons between California and other states, time-series comparisons of counties in California with varying rates of Three Strikes usage, and comparisons of different demographic populations within California) (Tonry, 2009). In fact, three of the studies found an association between Three Strikes and higher homicide rates, which the authors attributed to an increased motivation among those facing third strikes to eliminate victims, witnesses, and/or law enforcement officers (Kovandzic, Sloan, & Vieraitis, 2002; Marvell & Moody, 2001; Moody, Marvell, & Kaminski, 2002).
According to a cross-sectional, time-series analysis of state-level data from all 50 states over 20 years, California’s Three Strikes law, despite its breadth, had little impact on crime trends above and beyond the effects of the narrower Three Strikes laws in other states (Chen, 2008a). This conclusion seems counterintuitive, given that 100,000 felons have been sent to prison for second and third strikes in California, and so many fewer have been sentenced under the law in other states. How, one might ask, could the incapacitation of so many criminals have had no clear effect on crime rates? One possible explanation is capacity constraints. Because California’s prisons have been full beyond capacity since before Three Strikes was adopted, keeping Three Strikes inmates incarcerated longer has prevented non-strikers from serving as much time in prison. The most violent and serious offenders with third-strike sentences probably would have received long sentences, even in the absence of Three Strikes. However, if nonviolent, nonserious, aging third-strike inmates serving long mandatory prison sentences are less dangerous than the other criminals who were prevented from remaining in prison because of limited capacity, then declines in violent and serious crimes could very well not occur (Chen, 2012).
Although Three Strikes had negligible effects on crime in California, it had substantial effects on the correctional population and the state’s budget. A study conducted by the nonprofit Justice Policy Institute attributed about $10.5 billion in additional prison and jail expenditures from March 1994 to September 2003 to the law, with $6.3 billion the result of longer prison terms (Ehlers, Schiraldi, & Ziedenberg, 2004). More than half of the cost was for the incarceration of individuals whose third strike was nonviolent (Cost of ‘three strikes’ law, 2004). A May 2010 report on California’s prisons by the California State Auditor concluded,
about 25 percent of the inmate population was incarcerated under the three strikes law … On average, we estimate that these individuals’ sentences are nine years longer because of the requirements of the three strikes law and that these additional years of incarceration represent a cost to the State of $19.2 billion. (California State Auditor, 2010)
These costs, combined with severe budget constraints in California and questions about the law’s fairness, were among the driving forces behind efforts to reform the law and eventually the approval of Proposition 36 in 2012.
Race, Class, and Gender Implications of the Policy
Considerable variation also exists between counties in the exercise of prosecutorial and judicial discretion to dismiss or ignore prior strikes (Greenwood, Everingham, Chen, Abrahamse, Merritt, & Chiesa, 1998). For all or part of the law’s existence, the chief District Attorneys in three of California’s 58 counties (Los Angeles, San Francisco, and recently, Santa Clara) have already been directing deputy DAs to charge third strikes in a manner consistent with -Proposition 36 law (email interview with Debbie Mesloh, Public Information Officer, Office of San Francisco District Attorney Kamala D. Harris, October 17, 2006; Van Derbeken, 2004; Whitaker, 2000). As a matter of policy, several other district attorneys have filed third-strike sentences against all or most eligible offenders (Bowers, 2001). In other jurisdictions, third strikes have been charged on a case-by-case basis with no overarching policy. This resulted in considerable geographic disparity in offenders’ chances of receiving a 25-to-life sentence (Bowers, 2001; Zimring et al., 2001).
The odds of a third-strike sentence are influenced not only by characteristics of the defendant and his crime, but also by characteristics of the jurisdiction where an offender is sentenced. For example, as the proportion of Republicans in the county population increases, so does the likelihood that an offender receives a third-strike sentence, even when offense, prior record, and other variables are controlled (Chen, 2013). This is not surprising, since California District Attorneys and judges are elected political officials and are therefore motivated to demonstrate accountability and responsiveness to the views of their constituents. In addition, as the proportion of Latinos in the local population increases, so does the probability of receiving a third-strike sentence (Chen, 2013). The odds of a third-strike sentence are also higher where the unemployment rate is higher (Chen, 2013).
In addition to geographic disparities, racial disparities emerged in the application of Three Strikes in California. Although African Americans make up only 6% of California’s population, they comprise 34% of second-strikers in prison, and about 44% of third-strikers (Chen, 2008b). Even when legally relevant characteristics, such as current offense, prior record, and parole status are held constant, African Americans face 40% higher odds of a third-strike sentence than Whites (Chen, 2013). Prior studies found similar evidence of discrimination against African Americans in the application of habitual-offender laws in Florida (Crawford, 2000; Crawford, Chiricos, & Kleck, 1998; Crow & Johnson, 2008). Although prior research conducted in other states found disparities between Latinos and Whites in the application of mandatory minimum and habitual offender sentencing policies (Crow & Johnson, 2008; Ulmer, Kurlychek, & Kramer, 2007), evidence of similar disparities has not been found in California.
Racial disparity between Blacks and Whites is more severe when it comes to lesser offenses. The gap between Blacks and Whites in the odds of receiving a third-strike sentence is greater for property and drug offenses than for violent offenses. The difference between Blacks and Whites in their odds of a third-strike sentence is 76% for property crimes, 52% for drug crimes, and 35% for violent crimes (Chen, 2008b). Blacks also have 56% higher odds than Whites of receiving a third-strike sentence for a wobbler offense, whereas the difference between Blacks and Whites is 44% percent for non-wobbler offenses (Chen, 2008b). This statistic is consistent with the “liberation hypothesis,” which suggests that there is likely to be some consensus regarding appropriate punishments for the most egregious offenses, but less agreement regarding punishments for less serious crimes; therefore decisions regarding the latter may be more susceptible to the influence of personal opinions and biases of criminal justice decision makers (Kalven & Zeisel, 1966; Spohn & Cederblom, 1991).
It would be as unwise as it is impractical to advocate for the elimination of prosecutorial discretion in sentencing decisions. Discretion is a necessity when decisions are being made about humans whose characteristics and circumstances are not easily distilled into a few data points entered into a formula. Discretion also allows for more efficient allocation of scarce courtroom and correctional resources. However, the findings described above indicate that discretion has been exercised widely, but not uniformly, in the implementation of Three Strikes, and the variation is sometimes associated with factors that should not influence the administration of justice. The implementation of California’s Proposition 36, which removed the option to charge a third strike for a nonserious, nonviolent offense, is expected to reduce unwarranted disparities by removing much of the room for variation in the application of the Three Strikes law.
How do We Fix It? Efforts to Reform Three Strikes
From the start, opponents to Three Strikes challenged components of the law in court. In 1996, the California Supreme Court ruled in People v. Superior Court (Romero) that judges (rather than only prosecutors) had the discretion to dismiss prior felony convictions in the implementation of the law (California Legislative Analyst’s Office, 2005). In People v. Fuhrman (1997), the state Supreme Court upheld a lower court’s decision to permit multiple strike convictions to be charged from a single criminal incident (California Legislative Analyst’s Office, 2005). The constitutionality of Three Strikes under the Eighth Amendment was upheld by the United States Supreme Court in Ewing v. California (2003). The plaintiff, who had received a 25-to-life sentence for stealing a set of golf clubs, argued that Three Strikes constituted cruel and unusual punishment because the sentence was grossly disproportionate to the offense (California Legislative Analyst’s Office, 2005; Vitiello, 2003). Likewise, the U.S. Supreme Court ruled in Lockyer v. Andrade (2003) that a sentence of 50 years to life for two third-strike counts of petty theft (for stealing about $155 worth of videotapes from two different Kmart stores) did not violate the Eighth Amendment (Horn, 2004).
In addition to challenges in court, efforts to modify the law have been made through two ballot initiatives subsequent to the original Three Strikes initiative. The first, Proposition 66, appeared on the ballot in November 2004. Proposition 66 sought to require that all three offenses needed to be serious or violent in order to trigger the 25-to-life sentence. It also tried to remove burglary of an unoccupied residence, attempted burglary, and six other crimes from the list of “serious and violent” felonies that could count as strikes. The measure also required all strikes to be tried and convicted separately so that multiple strikes could not result from one criminal act. Inmates whose cases did not meet the terms of the modified law were eligible for resentencing. Finally, in an effort to allay the fears of those whose memories of Polly Klaas had not faded, Proposition 66 required 25-to-life prison terms for second-time child molesters (California Legislative Analyst’s Office, 2004).
The “Yes on Proposition 66” campaign was funded by over $5 million in donations from a handful of wealthy individuals, while the “No on Prop. 66” side received only about $71,000 from the California Organization of Police and Sheriffs (National Institute on Money in State Politics, 2004; Teji, 2011). The measure led by a margin of 62% to 21% among registered voters responding to a Los Angeles Times poll conducted just two weeks before the election, and by an even greater margin according a Field Poll taken earlier in October 2004 (Mathews, 2004). However, election results reflected an enormous shift in public opinion just before the election. Ultimately, the measure lost. Analysts attributed the measure’s sudden loss of voter support to several factors. Confident in his own reelection bid, Governor Arnold Schwarzenegger refocused his energies during the two weeks leading up to election day on a media campaign to defeat Proposition 66 that was financed by last minute donations, including $3.5 million from Henry T. Nicholas III, a billionaire whose daughter had been a murder victim, and over $138,000 from the California Correctional Peace Officers Association, which represents the state’s prison guards (Kravets, 2004; Teji, 2011). Television ads, including one starring Schwarzenegger, “shifted debate on the proposition from images of drug addicts and petty thieves serving unfairly harsh prison sentences to hardened criminals receiving get-out-of-jail-free passes” (Martin, 2004). The wording of Proposition 66 also contained ambiguities that raised fears regarding the potential early release thousands of prison inmates, and its efforts to redefine “serious and violent crime” seemed too extensive to many critics (Kravets, 2004; Martin, 2004). Finally, Schwarzenegger portrayed wealthy businessman Jerry Keenan’s $2 million contribution to the “Yes on 66” campaign as an effort to buy freedom for his son, who was serving prison time for two vehicular manslaughter convictions (Kravets, 2004). Concerns raised by these issues were serious enough to convince 53.2% of California voters to vote against this effort to reform Three Strikes (Mathews, 2004).
Eight years later, in the context of a very different economic and political climate, California’s voters approved Proposition 36 by a margin of 69.3% to 30.7% (Bowen, 2012), with majority support in every one of the state’s 58 counties (Leonard & Dolan, 2012b). This ballot measure, passed on November 6, 2012, and effective the next day, made two major changes to the “Three Strikes and You’re Out” sentencing policy:
Nonserious or nonviolent new felonies no longer trigger third-strike sentences of 25 to life. All three offenses must now be serious or violent.
Proposition 36 also applies retroactively to certain inmates sentenced to 25-to-life for nonviolent, nonserious third strikes. Based on data from the California Department of Corrections and Rehabilitation (CDCR), approximately 2,900 current prison inmates may be eligible for resentencing as “second strikers.” Successful petitioners will receive shortened sentences, and some will be released on the basis of time served (California Secretary of State, 2012).
At the same time, the existing law’s “second strike” provision remains intact. The revised law still requires a doubled sentence for any offender with two prior serious or violent felonies who is convicted of a new nonserious, nonviolent felony. In addition, Proposition 36 is written so that offenders whose priors include particularly egregious crimes like murder, rape, or child molestation do not benefit; they remain eligible for 25-to-life third-strike sentences and are excluded from resentencing consideration, even if their most recent crimes are nonserious and nonviolent (Bowen, 2012).
Proposition 36 succeeded in 2012 where Proposition 66 failed in 2004 for many reasons. One was a decline in the importance of criminal justice as a salient political issue and the heightened prominence of a state budget crisis in the minds of the public. With crime rates declining or constant over the past decade, the public no longer perceived tough crime policies as urgently needed. Facing a state budget shortfall, cuts in social welfare benefits and services, poorly performing schools, and higher taxes, California voters were no longer in the mood to prioritize expensive crime-fighting approaches above other budgetary priorities. A well-publicized report by an organization called California Common Sense reported that in 2011, after three decades of growth in spending on prisons and declines in spending on higher education, the former surpassed the latter (Anand, 2012). A public opinion poll conducted by the Public Policy Institute of California in 2012 found that 64% of Californians were willing to pay higher taxes for K-12 schools, and 54% willing to pay for health and human services, but only 17% wanted to pay for prisons, and 81% opposed any such efforts (Skelton, 2013). Another poll found that 62% agreed that the governor and legislature should cut prison spending to prevent additional cuts to education, health and social services (Californians for Safety and Justice, 2012). The nonpartisan California Legislative Analyst’s office estimated that Proposition 36 would save taxpayers $70 million to $90 million a year (California Legislative Analyst’s Office, 2012), and the measure’s advocates effectively emphasized these cost savings in their messages to voters.
Polls conducted during and after the election indicated that proponents of Proposition 36 succeeded in convincing the majority of voters, including conservatives, that Three Strikes in its original form was not only too expensive, but also unfair (Turner, 2012). Although critics of Three Strikes had complained about sentencing disproportionalities associated with Three Strikes since before the original law’s passage in 1994, it took many years before moral and legal arguments, and numerous well-publicized real-life examples, such as individuals sentenced to 25-to-life for offenses like stealing a loaf of bread, a pair of gloves, or a slice of pizza (Furillo, 2012), raised the public’s concerns about the law’s fairness beyond the level necessary to create policy change. There were also doubts about the law’s effectiveness. Advocates for reform pointed to the substantial body of expert research conducted over many years that reached the consensus that the California Three Strikes law had not effectively reduced crime as its proponents had contended (Tonry, 2009).
While crafting the language of the 2012 initiative, the authors of Proposition 36 avoided some of the pitfalls that had damaged prospects for success for Proposition 66 in 2004. Proposition 36 did not narrow Three Strikes as much as Proposition 66 would have, the language was less ambiguous, and it included specific provisions exempting the worst violent offenders from reduced sentences and leaving ample room for prosecutorial and judicial discretion in the resentencing process.
The political environment was far more conducive to Three Strikes reform in 2012 than in 2004. While Proposition 66 was defeated in large part through the efforts of Republican governor Arnold Schwarzenegger, Proposition 36 appeared on the ballot with the support of the state’s popular Democratic governor, Jerry Brown, who was a persistent and outspoken advocate of exercising fiscal responsibility, balancing the state’s budget through difficult decisions, and regaining control over the growth in California’s prison populations (Skelton, 2013).
Bipartisan support also contributed to Proposition 36’s success (Leonard & Dolan, 2012a). Although the measure was opposed by the California District Attorneys Association, three prominent DAs, Steve Cooley of Los Angeles, Jeff Rosen of Santa Clara County (which includes San Jose, California’s third-largest city), and George Gascón of San Francisco strongly supported Proposition 36 in advertisements, media interviews, and public appearances (Austin, 2012). These three counties are home to 40% of California’s voters (Kaplan, 2012b). The law also had public support from other prominent Republicans, including Los Angeles Police Chief Charlie Beck (Austin, 2012); a Texas-based conservative criminal justice reform group called Right on Crime, whose signatories included Jeb Bush and Newt Gingrich (Kaplan, 2012b) and prominent fiscal conservatives, such as anti-tax crusader Grover Norquist, who stated, “the Three Strikes Reform Act is tough on crime without being tough on taxpayers. It will put a stop to wasting hundreds of millions in taxpayers’ hard-earned money, while protecting people from violent crime” (Turner, 2012). The ballot measure earned the support of 51% of Republican voters along with 81% of Democrats and 74% of independent voters (Californians for Safety and Justice, 2012). 2
2. At the same time, most Republicans opposed another ballot measure up for a vote, Proposition 34 to abolish the death penalty, which did not pass.
Finally, Proposition 36 was well-funded, receiving $1 million in support from George Soros, nearly $1 million from Stanford Law School professor and business investor David Mills, and several other substantial donations (KCET, 2012). The opponents were considerably less well-financed, and the California Correctional Peace Officers’ Association, whose generous donations had contributed to the success of Three Strikes and the defeat of Proposition 66, did not make a contribution to the “No on 36” campaign (Furillo, 2012).
Like the original Three Strikes proposal, Proposition 36 met many of John Kingdon’s (1984) criteria for effective transformation of an idea into policy. This effort at reform succeeded in 2012 because of the public’s belief that it would address important problems, because of the merits of the policy proposal as well as the well-documented shortcomings of the law it was designed to modify, and because of favorable political condition
Future Directions: What Lies Ahead for Three Strikes in California?
Now that Three Strikes reform has been passed, the next steps are implementation, evaluation, and continued change, if appropriate. Like the original Three Strikes law, the revised policy is being implemented at the county level. While Proposition 36 is expected to reduce geographic disparity, there remain opportunities to exercise discretion in the revised law, and perhaps even more so in Proposition 36 resentencing.
Based on data from the California Department of Corrections and Rehabilitation (CDCR), approximately 2,900 current prison inmates may be eligible for resentencing as “second strikers.” Geographically from ten California counties, 92% of the inmates who are eligible for resentencing were convicted, and would therefore be considered for resentencing.3 The resentencing provision of Three Strikes is expected to proceed quickly in some counties and more slowly in others (Kaplan, 2012a). Discussions with public defenders and alternate defenders from several counties reveal that variation already exists between counties in many aspects of Proposition 36 implementation, including efforts to communicate with inmates who are eligible for resentencing, procedures for resentencing application, personnel and other resources allocated to resentencing, and challenges from DAs.4
3. They are Los Angeles (976 inmates), San Bernardino (317), San Diego (258), Kern (226), Santa Clara (209), Riverside (207), Sacramento (207), Orange (152), Fresno (67), and Kings (67). Source: Stanford Three Strikes Project.
4. These discussions took place at a Proposition 36 Implementation Summit at Stanford University on November 19, 2012, and during a subsequent conference call on December 17, 2012.
Proposition 36 added the following language to the Penal Code (emphasis mine):
If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony … the defendant shall besentenced pursuant to paragraph (1) of subdivision (e) [i.e., doubled sentence] unless the prosecution pleads and proves [one of several exceptions].5
5 California Penal Code Section 667(e)(2)(C). The exceptions include conviction for certain felony sex offenses, child molestation, homicide, “solicitation to commit murder,” “assault with a machine gun on a peace officer or firefighter,” “possession of a weapon of mass destruction,” and “any serious and/or violent felony offense punishable in California by life imprisonment or death.”
The italicized “pled and proved” clauses remain subject to discretionary treatment. Prosecutors can continue to opt not to prove some or all prior strikes or exceptions. Furthermore, one exception, listed in section 667(e)(2)(C)(iii), is that “the defendant used a firearm, was armed with a firearm, or intended to cause great bodily injury to another person.” “Intention” may be subject to interpretation by prosecutors, juries, and/or judges.
Regarding resentencing, the Penal Code was amended to read (emphasis mine):
An inmate is eligible for resentencing if: (1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] … unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety … In exercising its discretion … the court may consider: (1) the petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; (2) the petitioner’s disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.6
6 California Penal Code section 1170.126(e).
Substantial room for discretion has clearly and intentionally been written into the law. Prosecutors and resentencing judges retain the authority to assess an offender’s dangerousness, and they are afforded considerable latitude with regard to the factors that they may consider in this assessment. DAs have the opportunity to provide arguments against sentence reduction or release during resentencing hearings. Public Defenders in some counties do not anticipate much opposition from their prosecutorial counterparts, but a few DAs have already filed challenges in response to early petitions for resentencing, and still others are expected to challenge most or all petitions that come before them (Lee, 2013).
Variation in administrative processes may also lead to differences in outcomes between and within counties. In many jurisdictions, the Public Defender’s office has taken responsibility for initiating contact with most or all offenders who may be eligible for resentencing, reviewing files to confirm eligibility, filing petitions, and representing clients in hearings. However, many Public Defenders have limited staff and funds to allocate to this process. Moreover, some counties do not have Public Defenders, instead providing indigent defense on a contract basis. It is not yet clear how resentencing will be handled in these counties. There will also be variation in legal counsel among resentencing applicants, with most represented by public or alternate defenders, others represented by private attorneys, and yet others representing themselves. Research is needed to determine the extent to which the factors described here influence the outcomes of offenders seeking resentencing.
Another area of concern in the implementation of Three Strikes after Proposition 36 is what will happen to the inmates who earn early release through the resentencing process. Some will be resentenced to time served and released unconditionally, which means that they will no longer be under any form of correctional supervision, so they will lack access to the range of services normally offered to parolees (Kaplan, 2013). For these inmates, release from prison will be welcome, but challenging, particularly if they had not anticipated or prepared for their freedom well in advance and do not receive adequate resources, such as transitional housing, job training, employment assistance, or mental health care, to facilitate successful reintegration into society (Kaplan, 2013). According to criminologist Joan Petersilia, 38% of third-strikers receive mental health treatment in prison, compared to 22% of inmates in the general population (Kaplan, 2013). The average age of inmates eligible for resentencing is over 50, while for other inmates it has historically been around the age of 30.7 This age difference makes resentenced third-strikers statistically less likely to reoffend compared to the average person released from prison, but it may also be associated with greater challenges with regard to health and employment.
7 Source: personal correspondence with data analyst Jerome McGuire, California Senate Public Safety Committee, September 18, 2012.
In addition to current inmates eligible for resentencing, future offenders may be influenced by the revisions to Three Strikes. Many nonviolent, nonserious offenders will be spared the lengthy sentences that they might have received if Proposition 36 had not passed. Therefore, the biggest question regarding Three Strikes in the future may be whether the recent modifications to the law will change the behavior of potential criminals. Opponents to Proposition 36, like Three Strikes author Mike Reynolds, predict that watering down Three Strikes will embolden criminals and endanger the public by reducing the law’s deterrent effect (Leonard, 2012). Supporters of Proposition 36 argue that crime is unlikely to rise, pointing to the fact that crime rates are actually lower in counties where Three Strikes was used sparingly than in counties where DAs adhered more strictly to the law (Leonard, 2012), and they cite scholarly studies discussed earlier in this chapter that question whether the original law had a deterrent effect at all. Rigorous research is needed to determine which predictions are more accurate.
It will be a methodological challenge to separate the effects of Proposition 36 from the potentially larger effects of other changes that occurred in California’s criminal justice system around the same time, most notably the implementation of Assembly Bill 109, a major criminal justice “realignment” effort enacted in October 2011 after the United States Supreme Court’s Plata v. Brown decision, which upheld a District Court’s order to reduce overcrowding in the state’s prisons (Schlanger, 2013). As a result of AB 109, offenders whose crimes are nonviolent, nonserious, and not sex offenses, who have no serious or violent prior convictions, are now sentenced to terms in county jail, community supervision in the counties, or split sentences combining jail and community supervision instead of state prison (California Department of Corrections and Rehabilitation, 2012). Furthermore, some inmates will be eligible for post-release community supervision administered by the counties rather than parole, which is administered by the state (Silbert, 2012). In the first year of realignment, California’s prison population shrank by about 26,000 inmates, to its lowest level since May 1995 (Mintz, 2013). Citing anecdotal evidence, some local law enforcement officials have blamed the influx of former prison inmates into local communities for recent increases in crime rates, while others have expressed skepticism about these assertions (Bulwa & Berton, 2013). Claims regarding realignment’s effects on crime rates have yet to be confirmed or disproven by research, but if any effects exist, they may confound the observed relationship between the modified Three Strikes law and crime.
The Legislative Analyst’s Office (LAO) estimated that Proposition 36 would reduce prison and parole costs by $70 million to $90 million per year, with one-time resentencing costs of “a few million dollars statewide over a couple of years” (California Legislative Analyst’s Office, 2012). However, the LAO’s report added that the true savings would depend on many factors, such as the level of government services required by released offenders, potential revenue from released inmates who enter the workforce, and costs associated with any changes in the crime rate resulting from changes in the law (California Legislative Analyst’s Office, 2012). More data will have to be collected over time to determine the costs of the revised Three Strikes law and the savings associated with Proposition 36.
Three Strikes and other habitual offender laws were among many “tough on crime” policy efforts adopted throughout the nation in the early to mid-1990s in response to rapidly rising crime rates and frustration over the perceived failure of rehabilitative approaches to criminal justice (Ruth & Reitz, 2003). Although crime rates have declined nationwide over the last two decades, these laws remain in place in about half the states and the federal court system. Until November 2012, one state, California, had a Three Strikes law in place that was unusually draconian. The law’s passage in 1994 resulted from the confluence of many factors, including California’s system of direct democracy, which allows members of the public to bypass the legislature to enact laws, an atmosphere of public alarm over high and rising crime rates, and a critical focusing event, the abduction and murder of Polly Klaas and the subsequent arrest and trial of Richard Allen Davis, who epitomized the problem of lenient treatment of repeat violent offenders.
As Three Strikes was implemented by county court systems, substantial geographic disparities emerged in the law’s implementation, with some District Attorneys charging all eligible offenders with third strikes, and others reserving third-strike charges for only the most serious and violent criminals. Racial disparities have also been found in the law’s application, with African American defendants far more likely than Whites to be sentenced to 25-to-life under the law.
Questions over the law’s fairness led to efforts to modify or repeal the law in the courts and at the ballot box. In 2012, a successful ballot initiative, Proposition 36, considerably narrowed the range of offenses that can trigger a third-strike sentence. Research is needed to assess the effects of this change. If future analyses find that recent modifications to Three Strikes decrease unwarranted disparities in the law’s application without increasing crime, we might conclude that the first eighteen years of the law’s existence in California constituted a wide-ranging experiment in sentencing policy with immense monetary and social costs with limited benefits.
The public’s willingness to reform Three Strikes came at a time of dramatic change in California’s approaches to correctional policy. While severe budget constraints and an ongoing recession have forced policy makers throughout the United States to make difficult choices, these dire fiscal circumstances also opened a window of opportunity for innovative reform in criminal justice policy. Recognition of the high cost of incarceration increased political officials’ willingness to consider less-expensive intermediate sanctions for certain offenders. Concerns about persistently high recidivism rates and the easing of prison overcrowding as a result of realignment provided correctional authorities with incentives and opportunities to again think more seriously about rehabilitation. The influx of ex-inmates into local communities as a result of both realignment and the end of long prison terms imposed during the 1990s has directed the attention of policy makers and the public to the importance of reentry and reintegration. California voters’ acceptance of recent changes to Three Strikes may reflect the beginning of a shift from the “get-tough” attitudes and policies of the 1990s toward more balanced, affordable, and effective approaches to criminal sentencing.


(USA, AUS, UK & CA PhD. Writers)


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