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Formally known as Habitual offender laws; "Three Strikes" laws have become common place in 29 states(Chern) within the United States and the Federal Court system; these laws have been designed to counter criminal recidivism by incapacitation through the prison system. The idea behind the laws were to maximize the criminal justice systems deterrent and selective incapacitation effect, under this deterrence theory individuals would be dissuaded from committing criminal activity by the threat of state imposed incarceration. Californians voted in the "three strikes" law (proposition 184) on March 7 1994 by a 72% vote with the intention of reducing crime by targeting serious repeat offenders with long term incarceration thereby eliminating the ability to commit another offense.
Some unusual scenarios have come about due to these laws, particularly in California; some defendants have been given sentences of 25 years to life for such petty crimes as shoplifting golf clubs or stealing a slice of pizza from a child on the beach or a double sentence of 50 years to life for stealing nine video tapes from two different stores while child molesters, rapists and murderers serve only a few years. As a result of some of these scenarios the three strikes sentences have prompted harsh criticism not only within the United States but from outside the country as well (Campbell). Many questions have now arisen concerning the "three strikes" laws such as alternatives to incarceration for non-heinous crimes, what would happen if the state got rid of "strikes" and guaranteed that those convicted of a serious crime serve their full sentence? It is imperative to compare the benefits and the costs and the alternatives to incarceration when determining if the "three strikes" laws are making an impact on crime and are a help to society or a hindrance.
"Three strike" defendants decline plea bargains which in turn crowd county jails and leads to early release of other offenders. Historically, more than 90 percent of all felony cases statewide are disposed of through plea bargaining (analysis of the 1995-1996 budget bill). With the enactment of the three strikes law only 14 percent of all second strike and only 6 percent of all third strike cases have been disposed of through plea bargains (Cates 59). Because more cases are going to trial, there have been increases in the backlog of cases in the court systems, as a result some district attorneys are now prosecuting less misdemeanor cases and concentrating on more two and three strike felony cases. The number of felony jury trials statewide increased significantly between fiscal year 1981 and fiscal year 2000 (+1,650). It is estimated that it takes on average four days to complete a jury trial, using the four day average the increase in jury trials over the 20 year period added 6,500 trial days statewide (Aikman).
Many crime victims believed that the California judicial system was somewhat of a joke at best and totally broke at worst. Evidentiary exception rules, liberal sentences, plea bargaining and a "protect the criminal rather than the victim" mentality had far too often let criminals slip through the cracks. Most crimes in California are committed by a small group of repeat offenders so the "three strikes" law provided a fix for a flawed penal system so repeat offenders would stay in prison. It was also supposed to help to reduced case backlogs, plea bargaining and liberal sentences. When comparing fiscal year 1992-1993 (9.6 million filings), the last fiscal year prior to the enactment of the three strikes law, to fiscal year 2001-2002 (8.1 million filings) judicial council statistics show a 15.8 percent decrees in both civil and criminal court filings, along with a slight decrease from 244,137 to 242,760 criminal felony filings (Aikman).
A March 2003 study based partly on San Francisco three strikes statistics shows that the three strikes law is quite possibly not responsible for the 37 percent reduction in the crime rate. The study issued by the justice policy institute noted that crime decreased at a greater rate in San Francisco, where comparatively few three-strikes cases were prosecuted, than in six other urban counties that used the law more frequently (Schiraldi). Many Three-strike opponents point to the fact that the large decrease in crime seen in the 1990's occurred not only in Three-strike states but across all 50 states , mainly due to a thriving economy, low unemployment, more effective law enforcement practices and changing demographics. Another factor pointed out for the decrease in crime during that time was the aging out of baby-boomers from the crime prone twenties and thirties into the more tranquil forties and fifties.
Three Strikes provides a very effective deterrent after the second conviction and fear of even getting the first strike can deter potential criminals from ever launching a criminal career. There's no better deterrent than the knowledge that a person will definitely go to prison for a minimum of 25 years if convicted of a third strike. Criminals with two strikes have an arrest rate approximately 15 percent lower than similar criminals with only one strike. This not only deters the more serious crimes of murder, rape and mayhem, but also discourages the minor crimes such as robbery. In 1992 California had 346, 524 incidents of violent crime, in 1993, the year 3 strikes was enacted violent crime incidents dropped to 336,381 and by 2000 the rate had dropped to 210,531(Aikman). Joanna shepherd of Clemson University using county level data found that only 8 fewer murders had been prevented, yet several thousand fewer aggravated assaults and almost four thousand fewer burglaries had been committed (Shepherd 159-201).
The three strikes law is unjust in certain conditions such as victimless crimes. According to statistics from the California department of corrections, there are thousands of individuals serving 25-to-life sentences under the three strikes law for non-violent third strikes. As of December 2005, 361 individuals in California penitentiaries are serving 25-to-life for shoplifting small amounts of merchandise (Migden). Under California law these minor shoplifting incidents would normally be regarded as a misdemeanor petty theft crime, punishable by a fine or a jail sentence of up to six months or less (California Penal Code-297 Ann. 490). "Petty theft with a prior conviction for a property offense" however is a felony (California Penal Code- 434 Ann. 666). Leandro Andrade was convicted in 1995 to 50 years to life for the theft of 9 children's video tapes from two different K-marts on two different occasions. Andrade had 3 resident burglary arrests in 1983 and it was these three convictions that caused Andrade's theft of the video tapes to be charged as felony petty theft with a prior (California Penal Code- 434 Ann. 666); which requires that the previous conviction be for a property offense. Sadly, if Andrade's prior crime had been murder, rape or child molestation his maximum sentence for the theft of the nine video tapes would have only been one year in a county jail (California Penal Code- 434 Ann. 666).
The media distorts the true effectiveness of the three strikes laws by showing trivial cases and leaving out pertinent information concerning minor non-violent crimes. Three strikes opponents like to use Leandro Andrade who stole 9 video tapes and Jerry DeWayne Williams, known to most as "the pizza thief," who was convicted of stealing a slice of pizza from a group of children as poster children as to why the law needs to be nullified. What the media and three strikes opponents fail to mention is that Leandro Andrade had been in and out of state and federal prisons since 1982 (Fox). During his 13 year criminal career Andrade had nine felony convictions including five felony residential burglary convictions and several drug trafficking offenses and in 1991 Andrade was incarcerated for escaping from federal prison (Fox). Jerry Williams aka "the pizza thief" was arrested 14 times between 1980 and 1990. At age 19 while on probation Williams was convicted of robbery, two years later he was convicted of stealing a car and in 1992 he was convicted of attempted robbery and sentenced to prison (Fox). When a 6 foot 4 inch and 220 pound convicted felon walks up to children ranging in age from 7 to 14 and demands a slice of pizza and then takes it after being told no, he should never be prostituted as a poster boy for opposition to the three strikes law, especially after his sentence was reduced to six years from the California court of appeals. Of the 7,626 three strikers sentenced since 1994,1,548 have been convicted of robbery, 319 have been convicted of murder, 467 for sexual assault, 375 were convicted of assault with a deadly weapon, 457 convicted of other assault, 826 for residential burglary and 393 convicted for illegal possession of a firearm. Altogether almost two-thirds of third strikers have been convicted of violent offenses, burglary, or illegal possession of a firearm.
Opponents of the three strikes law claim the law takes the flexibility of sentencing away from the courts and judges. Sadly the three strikes law is a one size fits all type of justice, the judges and prosecutors have their hands tied and must charge the third strike no matter what the crime is. The law prevents a fair trial where the particular situation and evidence can fairly be analyzed, time since prior convictions are not considered and probation, suspension or diversion programs are prohibited. What this means is if someone has gone crime free for over ten years then commits another felony, say a minor drug offense, they are still looking at receiving their third strike, and they are not eligible for a drug diversion program or probation.
In reality the three strikes law has a prosecutorial discretion clause that allows the prosecutor or the judge to dismiss or strike previous strikes. Under the three strikes law during a new felony prosecution, each qualifying prior strike conviction must be re-pled and proved by the prosecution. The prosecutor however may request that the court dismiss a felony strike under two conditions: (1) if the evidence is insufficient to prove the prior conviction or (2) in furtherance of justice under penal code section 1385(a) (California Penal Code- 785 Ann. 1385(a)). Prior to applying the third strike prosecutors will consider many factors in evaluating the use of discretion to request a dismissal of a strike in furtherance of justice such as is the current offense a serious or violent felony, did the previous strikes occur within a single incident and has the defendant remained crime free for a reasonable period of time prior to this conviction. One such occurrence of a judge using the furtherance of justice to dismiss a strike is with Inmate Gonzalez (CDCR # G68053 B1-253L) who is currently incarcerated at North Kern State Prison, who went to court in 2007 for criminal threats. In 1978 Gonzalez at the age of 17 was arrested for armed robbery and sent to the California Youth Authority (CYA), in 1983 he was arrested for assault with a deadly weapon(AWDW) which became his second strike, he was paroled in 1996 and stayed crime free for over 10 years. In 2007 after a night of drinking he came home and an argument ensued with his neighbor, he then threatened to kill his neighbors family, at which time the neighbor called police. He was then arrested for criminal threats and went to court where the prosecutor attempted to give him 125 years to life for threatening 5 family members (1 25-to-life count per family member). Gonzalez's lawyer then enacted the Romero act and the judge nullified his 1978 arrest and processed him as a second striker. Gonzalez was in court with two child molesters who had been arrested for sex with a minor under the age of 14, both received 3 years each, while the prosecutor attempted to give Gonzalez 125 years. The California state Supreme Court also ruled that the court has the discretion to dismiss prior serious or violent felony convictions under the three strikes law if it is in furtherance of justice on June 20, 1996, in People v. Superior court (known as the Romero act).
Compared to 1993, the 2007 California crime rate was down 35% and the violent crime rate was down 44% over the same period, tens of thousands of California residents were not murdered, raped, robbed or burglarized. 16 years ago California voters took an active stance against crimes and stated enough is enough by targeting criminals who were not deterred by previous convictions and the threat of incarceration and enacted the Three Strikes law. Since the enactment no new prisons have been opened due to the Three Strikes law, the criminal justice system has not crumbled or been overwhelmed and the State has not been bankrupted as neigh sayers had predicted. Three strikes laws are not a one size fits all law because prosecutors have the discretion to request the court to dismiss prior convictions in the furtherance of justice to prevent the defendant from being punished unjustly. Even if the prosecutor denies the Romero act, the trial court may dismiss a prior strike conviction because it has an obligation to impose a just and fair sentence. The prosecutor and the judge use this discretion independent of each other therefore before a three strike case is even heard in court it has already been reviewed twice. These two policies amount to an "escape clause" when either the judge or prosecutor feel that it would be in the best interest of justice to forgo the three strike law. Most studies show that most populous counties use this discretion on upto 45% of all three strike cases, thus dropping almost half of all third strike offenses down to a second strike, which is only, double the normal sentence for the offense being tried. Research has shown that habitual offenders have much higher recidivism rates and are more likely to commit a more violent crime with each subsequent offense, so by not restricting the third strike to a particular category of felony offenses, the three strikes law has the ability to incapacitate a repeat offender at the first sign that they have resumed their criminal career, many times before they succeed in committing more violent crimes. The California three-strikes law allows professionals within the system to shield less serious offenders from the full effect of the law, while retaining the ability to effectively incapacitate other offenders who are violent or who pose a real and continued threat to the public. Through careful implementation, prosecutors and judges can use their discretion to consider the safety needs of the community while taking into account the circumstances of individual offenders.