ENT OF M JU U.S. Department of Justice T S R T A I P C E E D

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O J C S Office of Justice Programs F A V M F O I N A C I J S R E BJ G O OJJ DP O F PR National Institute of Justice JUSTICE National Institute of Justice R e s e a r c h i n B r i e f Jeremy Travis, Director September 1997

Issues and Findings “Three Strikes and You’re Out”: Discussed in this Brief: “Three strikes” enacted in Washington and Califor- nia and their impact, provisions of three- A Review of State Legislation strikes laws newly enacted in 24 States, and a comparison of the 24 new laws to by John Clark, James Austin, and D. Alan Henry preexisting repeat offender sentencing provisions. In recent years lawmakers at both the to the problems of delay and jail Key issues: Between 1993 and 1995, 24 State and Federal levels have passed leg- crowding—in effect, creating an un- States and the Federal Government islation increasing penalties for criminal funded mandate for counties and cities. A added three-strikes legislation to already existing laws that enhanced sentencing offenses, particularly violent . These longer term concern was that as more and for repeat offenders. The rapid expansion actions came in response to public con- more offenders began serving more of such laws reflects the perception that cerns about and the belief that lengthy terms of incarceration, prison existing laws were not sufficiently protec- many serious offenders are released from overcrowding, already at crisis levels in tive of public safety in their application 5 and/or outcome, that new laws were prison too soon. Many such laws have many States, would also grow worse. needed to address exceptional incidents come under the general label of “three that had occurred, or that the intent of strikes and you’re out.” The purpose of This Research in Brief examines the current laws was being frustrated by these laws is simple: Offenders convicted three-strikes laws in Washington and other factors. repeatedly of serious offenses should be California and evaluates their effects to Key findings: Effects of three-strikes removed from society for long periods of date; describes the differences among laws in California and Washington in- time, in many cases for life. new three-strikes laws enacted in 24 cluded the following: States; and compares the provisions of • Planners in Washington expected that For many years most States have had pro- these new laws to each State’s preexisting between 40 and 75 persons would fall visions in their laws that included en- provisions on repeat offender sentencing. under three-strikes provisions each year. 1 However, more than 3 years after the hanced sentencing for repeat offenders. took effect, only 85 offenders have Yet between 1993 and 1995, 24 States Three-strikes models: California been admitted to the State prison system and the Federal Government enacted new and Washington under these . laws using the “three strikes” moniker,2 • California’s prison system has admitted with similarly labeled bills introduced in Comparison of the laws’ provisions. 6 a far larger number of “strikes” offenders a number of other States.3 The Washington law took effect in De- (over 26,000 as of December 1996) than cember 1993 following a voter initiative has any other State’s since April 1994, Washington and California were the first that passed by a three-to-one margin. In although those admissions are fewer 4 than originally projected. States to implement three-strikes laws. March 1994 the Governor signed the As the laws were being debated, the im- California law,7 which voters later ratified • The vast majority of California “strikes” inmates have been sentenced pact they would have on the two States’ in a State referendum. under the two-strikes provision and for criminal justice systems raised concerns. nonviolent crimes; all but one of the Critics argued that defendants facing Although they were enacted within Washington “strikes” inmates have been lengthy mandatory sentences would be months of one another using the same sentenced for crimes against persons. more likely to demand , slowing “three strikes and you’re out” rallying cry and include many of the same offenses as continued… down the processing of cases and adding R e s e a r c h i n B r i e f

Issues and Findings Exhibit 1. Comparison of Washington and California Strikes Laws continued… A review of the three-strikes laws Type of Offense Washington California passed in the 24 States shows that: Homicide Murder 1 or 2 Murder • States have authorized—or in some Controlled Substance Homicide instances, mandated—longer periods Homicide by Abuse of incarceration for those convicted of Manslaughter 1 or 2 violent crimes. Sexual Offenses Rape 1 or 2 Rape • What constitutes a strike and under Child Molestation Lewd Act on Child what conditions varies between States. Incest of Child Continual Sexual Abuse of Child There are, however, some constants— Sexual Exploitation Penetration by Foreign Object violent such as murder, rape, Sexual Penetration by Force and carjacking are typically included as Sodomy by Force strikeable offenses. Oral Copulation by Force • There are variations in the number of strikes needed to be “out.” In 20 Robbery 1 or 2 Robbery States three strikes are required. In one State a person is sentenced to life with- Assault Attempt Murder Attempt Murder out for a second strike. Assault 1 or 2 Assault with a Deadly Weapon on • States differ as to what sanction will a Peace Officer be imposed when sufficient strikes Assault with a Deadly Weapon by have accumulated. In 12 States manda- an Inmate tory life sentences with no possibility of Assault with Intent to Rape or Rob parole are imposed when a person is out. Parole is possible after a significant Other Crimes Explosion with Threats to Humans Any Felony Resulting in Bodily Harm period of incarceration in three other Against Persons Extortion Arson Causing Bodily Injury States once an offender has struck out. Kidnaping 1 or 2 Carjacking Vehicular Assault Exploding Device with Intent to Injure Provisions for enhanced penalties for Exploding Device with Intent to repeat offenders existed in 23 of the 24 States before the passage of the lat- Murder est three-strikes legislation. New laws Kidnaping added to previously enacted statutes in Mayhem various ways: Property Crimes Arson 1 Arson • Several States supplemented existing Attempt Arson 1 of Occupied Dwelling habitual offender laws for any felony Burglary Grand with Firearm with new laws that focused only on violent felonies. Drug Offenses Drug Sales to Minors • Several States had preexisting ha- bitual offender laws that allowed for, Weapons Offenses Any Felony with Deadly Weapon Any Felony with Deadly Weapon but did not require, enhanced sen- Possession of Incendiary Device Any Felony Where Firearm Used tences; the new laws make such sen- Possession of Prohibited tences mandatory. Explosive Device Early shows that, with the ex- ception of California, most of the laws Other Treason will have minimal impact on those Promoting Prostitution States’ prison systems because they Leading Organized Crime were drafted to apply to only the most violent repeat offenders. Only broadly defined two-strikes provisions like strikes (see exhibit 1), the Washington the legislation. Under the California law, California’s have the potential to drasti- and California laws differ in three impor- only the first two need to be cally alter existing sentencing practices. tant ways. from the State’s list of “strikeable” of- Target audience: State and local leg- fenses—any subsequent felony can count islators and policymakers, prosecutors, First, in Washington all three strikes as the third strike. Second, the California public defenders, judges, court ad- must be for felonies specifically listed in law contains a two-strikes feature in ministrators, and researchers.

2 R e s e a r c h i n B r i e f which a person convicted of any felony than the same types of cases before the ing. The number of two-strikes cases who has one prior for a law took effect. This led to a 25-percent filed by the Los Angeles district attorney strikeable offense is to be sentenced to increase in jury trials as well as an declined by 15 percent between the sec- twice the term he or she would other- 11-percent rise in the proportion of the ond quarter of 1995 and the second wise receive. There is no second-strike jail population held in pretrial status, quarter of 1996. Likewise, there was a provision in the Washington law. from 59 percent before the law was en- 28-percent decline between the two pe- Third, the sanctions for a third strike acted to 70 percent.11 Furthermore, a riods in the number of three-strikes differ. The Washington re- survey of sheriff’s departments through- cases filed. The department reports that quires a life term in prison without the out the State showed that the pretrial de- it is too early to say whether these find- possibility of parole for a person con- tainee population had grown statewide, ings suggest a trend or whether there is victed for the third time of any of the going from 51 percent of the average another possible cause.15 “most serious offenses” listed in the daily population before three strikes to law. In California a “third striker” has 61 percent by January 1, 1995.12 Impact on State prison systems. at least the possibility of eventually The impact of these laws on State cor- being released, albeit after serving a However, more recent data show that rections has not been as severe as pro- minimum of 25 years.8 at least some counties in the State are jected in either Washington or learning to absorb the increases California. Planners in Washington Impact on local and jails. brought about by the law. A survey of had expected that between 40 and 75 When the three-strikes laws were ini- eight counties with populations of persons would fall under three-strikes tially implemented in Washington and more than 1 million identified several provisions each year. Even this low California, some analysts projected counties that have successfully dis- projection has not been met. Since De- that the law enacted in California posed of two- and three-strikes cases cember 1993 when the law took effect, would have a much greater impact on early in the process.13 Under the Delay only 85 offenders—as compared with the local criminal justice system than Reduction Program—a new pilot the 120–225 that had been pro- the law passed in Washington because project in one of Los Angeles County’s jected—have been admitted to the it had a much broader scope.9 They Superior Court districts implemented Washington State prison system under predicted that California courts would as a result of the added burdens the its three-strikes law.16 become overwhelmed as defendants three-strikes law imposed on the facing enhanced penalties would de- court—the pending caseload of criminal A similar overestimate has been made mand jury trials. The added time to cases has been reduced dramatically.14 of the California law’s impact on its process cases through trials and the prison system. As of December 31, reluctance to release pending trial de- In addition, the most recent data from 1996, a total of 26,074 offenders have fendants who were facing long prison the Los Angeles Sheriff’s Department been admitted to the California De- terms would cause jail populations to suggest that the pace of strikes cases partment of Corrections (CDC) for ei- explode as the number of admissions coming into that system may be slow- ther a two- or three-strikes . and length of jail stays grew.10 Exhibit 2. Reduction in California Prison Population Projections Early evidence from California indi- cated that these predictions were prov- Fall 1995 Fall 1996 Ending Period Original Projections Revised Projections1 Difference ing correct. A review of 12,600 two- and three-strikes cases from Los An- 12/31/95 137,588 135,133 -2,455 06/30/96 146,390 141,017 -5,373 geles, for example, showed that two- 06/30/97 163,695 150,970 -12,725 strikes cases remained pending in 06/30/98 179,737 159,823 -19,914 court 16 percent longer and three- 06/30/99 196,680 170,344 -26,336 strikes cases 41 percent longer than 06/30/00 214,963 181,734 -33,229 nonstrike cases. In addition, strikes 06/30/01 232,386 193,094 -39,292 Net Increase 94,798 57,961 cases were three times more likely to go to trial than nonstrike felonies and 1Revisions made after law had been in effect for at least 1 year. Sources: California Department of Corrections, Fall 1996; Population Projections, 1996–2001. four times more likely to go to trial

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Of this number, nearly 90 percent Exhibit 3. Number of Two- and Three-Strikes Cases Admitted to CDC by Month were sentenced under the two-strikes Date Two Strikes Three Strikes Total provision.17 Although the sheer num- 1994 ber of cases affected by the law is sig- April 32 - 32 nificantly higher than for any other May 124 1 125 June 220 - 220 State, the numbers are not as great as July 329 5 334 originally projected. Consequently, August 428 12 440 CDC recently lowered its 5-year pro- September 489 21 510 October 579 36 615 jection by nearly 40,000 inmates (see November 638 24 662 exhibit 2), principally because there December 644 53 697 have not been as many two-strikes ad- 1995 January 668 43 711 missions as expected and because February 705 61 766 judges have modified their sentencing March 970 89 1,059 practices for the two-strikes cases. CDC April 869 94 963 May 940 98 1,038 had estimated that judges would choose June 905 106 1,011 longer sentences within the ranges pro- July 763 73 836 vided by the law. More directly, CDC August 934 117 1,051 September 872 99 971 had expected 42 percent of the two- October 790 101 891 strikers to be sentenced at the “low” November 825 118 943 range of sentences but has found that December 783 109 892 1996 approximately 60 percent are being January 832 123 955 sentenced at this range. They have re- February 797 140 937 sulted in shorter-than-expected sen- March 845 122 967 April 851 110 961 tence lengths or shorter stays in prison. May 938 146 1,084 June 741 117 858 Exhibit 3 shows the number of CDC July 812 133 945 admissions for two- and three-strikes August 918 145 1,063 cases by month; exhibit 4 portrays September 774 132 906 October 841 131 972 these data in graph form. As expected, November 684 101 785 there was a dramatic increase in the December 727 147 874 first 12 months, but the number of ad- TOTAL 23,267 2,807 26,074 missions has unexpectedly leveled off Source: California Department of Corrections and even declined slightly. Finally, there is tremendous variation Exhibit 4. Number of Two- and Three-Strikes Cases Admitted to CDC by in the application of the law by county. Month, April 1994–December 1996 Exhibit 5 shows the differential use of the law in five major counties. San 1000 Francisco and Alameda counties have rarely applied the law; San Diego and 800 Sacramento, which have comparable 600 populations and crime rates, have been far more active in using the law. 2 Strikes 3 Strikes FREQUENCY 400 Los Angeles County is the most fre- quent user of the law—11,656 offend- 200 ers have been sent to prison, nearly half of all the State’s cases. 0 1994 1995 1996 MONTH/YEAR One recent development that might further reduce these revised projections

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Exhibit 5. Comparison of Selected Counties on Use of Two and Three Strikes 2 Strikes 3 Strikes Resident Violent Crime1 Property Crime2 Prison Prison County Population N Rate3 N Rate3 Admission Admission San Diego 2,627,659 13,463 874 71,764 5,287 2,613 324 Alameda 2,170,116 9,809 1,138 35,118 6,192 290 36 Los Angeles 9,146,057 90,817 1,682 257,602 5,367 10,495 1,161 San Francisco 1,642,731 13,365 1,088 56,767 5,609 284 19 Sacramento 1,433,067 4,850 806 34,635 6,233 1,057 183 Statewide Totals 31,211,000 336,381 1,078 1,678,884 5,379 23,889 2,900 Sources: U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime Reports: Crime in the , 1993; California Department of Corrections, 1997. 1 Violent crimes are offenses of murder, forcible rape, robbery, and aggravated assault. 2 Property crimes are offenses of burglary, larceny-theft, and motor vehicle theft. Data are not included for arson. 3 Rate = incidents per 100,000 population. is a California Supreme Court ruling Relative to classification data, the ma- problems (see exhibit 8). The same ba- that allows judicial discretion in ap- jority of two-strikers are either mini- sic trend exists for three-strikers, al- plying the law.18 This ruling may well mum- or low medium-custody inmates though a greater proportion are further limit the use of the law and with little history of prior institutional classified in the higher custody levels, could create a major logjam of appeals for the nearly 26,000 inmates sen- tenced under the law who may be eli- Exhibit 6. Comparison of Washington State and California Prison Admissions gible for resentencing. as of March 1, 1996

Profile of inmates sentenced under Washington California 3 Strikes 2 Strikes 3 Strikes strikes laws. In contrasting the at- N%N%N% tributes of inmates sentenced under the Total Intake 53 100.0 15,230 91.2 1,477 8.8 strikes laws in the two States (see exhibit Sex 6), it is noteworthy that a majority of Male 52 98.1 14,456 94.9 1,455 98.5 California inmates have been sentenced Female 1 1.9 774 5.1 22 1.5 Age for nonviolent crimes, while all but one Under 20 0 0.0 1,111 7.3 105 7.1 of the Washington inmates have been 20–29 10 18.9 7,118 46.7 636 43.1 sentenced for crimes against persons. 30–39 21 39.6 5,197 34.1 521 35.3 The Washington inmates are also older, 40–49 20 37.7 1,540 10.1 170 11.5 50+ 2 3.8 264 1.7 45 3.0 probably reflective of the State’s nar- Race/Ethnicity rower “strike zone.” Black 21 39.6 5,657 37.1 649 43.9 Hispanic 1 1.9 4,981 32.7 400 27.1 Exhibit 7 presents a more detailed White 30 56.6 4,043 26.5 373 25.3 analysis by sentence length of the of- Other 1 1.9 549 3.6 55 3.7 Current Offense* fenses for which California inmates Person 52 98.1 2,198 14.5 367 25.5 have been convicted.19 Excluding vio- Property 1 1.9 6,251 41.1 558 38.8 lent crimes, the typical sentence for a Drugs 0 0.0 4,802 31.6 312 22.0 two-strikes property or drug offense Other 0 0.0 1,943 12.8 198 13.8 Sentence Length ranges from 3 to 5 years. The sentence Life 53 100.0 27 0.2 8 0.5 length increases dramatically for a Other than Life 0 0.0 15,203 99.8 1,469 99.5 third strike with ranges from 26 to 44 Average Sentence N/A 4.9 Years 37.4 Years years. The majority of drug offenses * Due to missing data on current offense for California cases, the number of two- and are either simple possession or posses- three-strikes inmates do not total to 15,230 and 1,477, respectively. sion with intent to sell. Source: California Department of Corrections and Washington Department of Corrections.

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Exhibit 7. California Sentence by Offense by Two- and Three-Strikes Laws as of March 1, 1996 2 Strikes 3 Strikes

Number % Sentence Number % Sentence Offense of Offenses in Years of Offenses in Years Murder 1st 6 0.0 77.0 1 0.0 85.0 Murder 2nd 22 0.2 26.0 4 0.3 39.3 Manslaughter 22 0.2 15.0 3 0.2 43.0 Robbery 929 6.1 10.0 180 12.5 44.8 Assault 988 6.5 6.9 127 8.8 44.3 Rape 18 0.1 37.2 7 0.5 93.1 Other Sex Crime 188 1.2 12.1 37 2.6 67.1 Kidnaping 15 0.1 20.7 8 0.6 42.5 Burglary 2,147 14.1 5.4 269 18.7 33.6 Grand Theft 419 2.8 3.2 19 1.3 26.0 Petty Theft with Prior 1,928 12.7 3.3 131 9.1 28.0 Receive Stolen Property 658 4.3 3.7 63 4.4 26.9 Auto Theft 721 4.7 3.7 50 3.5 36.1 Forgery/Fraud 241 15.9 3.6 16 1.1 27.5 Other Property Crime 137 0.9 3.4 10 0.7 27.8 Drug Possession 3,064 20.2 3.1 172 11.9 27.2 Drug Possession for Sale 843 5.5 4.9 55 3.8 29.3 Drug Sale/Manufacture 724 4.8 6.1 61 4.2 29.5 Other Drug Offense 171 1.1 5.9 29 2.0 30.9 Weapons Possession 1,162 7.6 4.2 140 9.2 43.7 Other Offense 781 5.1 4.6 58 4.0 41.3 Source: California Department of Corrections Data Tape—Classification File.

largely due to their lengthy prison Exhibit 8. Classification Attributes of California’s Prisoners Sentenced Under terms. The sentence length is a major Two- and Three-Strikes Laws as of March 1, 1996 determinant of an inmate’s custody Classification Attributes Two Strikers Three Strikers level within CDC. A special task force (N=15,230) (N=1,477) has been created by CDC to determine Custody Level whether the CDC classification system Minimum (I) 26.7% 16.5% should be adjusted to ensure that two- Low Medium (II) 26.7% 17.1% strikers and three-strikers are not be- High Medium (III) 27.6% 24.2% ing overclassified. Maximum (IV) 11.3% 34.7% Unclassified 7.7% 7.4% No Prior Military Service 97.8% 96.6% Three-strikes variations in No High School Degree 83.7% 82.1% other States Not Married 82.8% 77.9% The strikes laws in California and No Prior Walkaways 95.1% 90.1% No Prior Assaults on Inmates 98.3% 95.6% Washington demonstrate that although No Prior Assaults on Staff 99.2% 97.1% statutes may share the same title, No Prior Escapes 99.3% 98.8% “three strikes and you’re out” can have No Prior Disciplinaries 94.8% 87.0% dramatically different meanings across No Current Disciplinaries 45.0% 52.2% States. A review of the provisions of the Satisfactory Work/Program 39.0% 51.3% 24 States that have enacted this type of Source: California Department of Corrections Data Tape—Classification File. legislation, summarized in exhibit 9, re- veals differences in:

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• How a “strike zone” is defined. Exhibit 9. Variations in State Strikes Laws • How many strikes are required to be Strikes Needed “out.” State Strike Zone Defined To Be “Out” Meaning of “Out” Arkansas Murder, kidnaping, robbery Two Not less than 40 years in prison; • What it means to be “out.” rape, terrorist act no parole First-degree battery; Three Range of no parole sentences, Strike zone defined. The strike firing gun from vehicle; depending on the offense zone—what constitutes a strike and use of prohibited weapon; conspiracy to commit murder, under what conditions—varies from kidnaping, robbery, rape, State to State. There are some con- first-degree battery, or first-degree sexual abuse stants—violent felonies such as mur- California Any felony if one prior Two Mandatory sentence of twice the der, rape, robbery, arson, aggravated felony conviction from term for the offense involved assault, and carjacking are typically list of strikeable included as strike offenses in such leg- offenses (see exhibit 1) islation. But States have included Any felony if two prior Three Mandatory indeterminate life felony convictions from sentence, with no parole other charges, such as the following: list of strikeable offenses eligibility for 25 years • In Indiana—the sale of drugs. Colorado Any Class 1 or 2 felony Three Mandatory life in prison with or any Class 3 felony that no parole eligibility for 40 • In Louisiana—any drug offense pun- is violent years ishable by imprisonment for more than Connecticut Murder, attempt murder, Two Up to 40 years in prison assault with intent to kill, 5 years. manslaughter, arson, Three Up to life in prison kidnaping, aggravated • In California—the sale of drugs to sexual assault, robbery, minors. first-degree assault Florida Any forcible felony, Three Life if third strike involves • In Florida—escape. aggravated stalking, aggravated first-degree felony, 30–40 years child abuse, lewd or indecent if second-degree felony, 10–15 • In Washington—treason. conduct, escape years if third-degree felony • In South Carolina—embezzlement Georgia Murder, armed robbery, Two Mandatory life without parole kidnaping, rape, aggravated and bribery. child molestation, aggravated sodomy, aggravated sexual Two States define strikeable offenses battery based on the prior charge and the sen- Any felony Four Mandatory maximum sentence for tence imposed. Maryland and Tennes- the charge see both require that a sentence of Indiana Murder, rape, sexual battery Three Mandatory life without possibility incarceration must have been imposed with weapon, child molestation, of parole arson, robbery, burglary with in order for listed offenses to qualify weapon or resulting in serious as strikes. injury, drug dealing Kansas Any felony against a person Two Court may double term specified Some States have established different in

levels of strikeable offenses. For ex- Any felony against a person Three Court may triple term specified ample, in Georgia, a second conviction in sentencing guidelines for a defined violent felony mandates a Louisiana Murder, attempt murder, Three Mandatory life in prison with no sentence of life without parole, while a manslaughter, rape, armed parole eligibility robbery, kidnaping, any drug fourth felony conviction of any kind re- offense punishable by more quires that the maximum sentence al- than 5 years, any felony punishable by more than 12 lowable for the charge be imposed. years

How many strikes are required to Continued on next page be “out.” There are also variations in the number of strikes needed to be

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Continued from page 7 Strikes Needed “out.” In South Carolina, a person con- State Strike Zone Defined To Be “Out” Meaning of “Out” victed a second time for any of a list of “most serious offenses” is sentenced to Louisiana Any four felony convictions Four Mandatory life in prison with no (continued) if at least one was on the parole eligibility life without parole. There is no third above list strike. Maryland Murder; rape; robbery; first- Four, with Mandatory life in prison with no or second-degree sexual separate prison parole eligibility Three strikes are required to be “out” offense; arson; burglary; terms served in 20 States, but seven of them—Ar- kidnaping; carjacking; for first three manslaughter; use of firearm strikes kansas, California, Connecticut, Kansas, in felony; assault with intent Montana, Pennsylvania, and Tennes- to murder, rape, rob, or commit sexual offense see—also have enhanced sentences for

Montana Deliberate homicide, Two Mandatory life in prison with no two strikes, depending on the offense. aggravated kidnaping, sexual parole eligibility intercourse without consent, What it means to be “out.” Finally, ritual abuse of a minor States differ as to what sanction will be Mitigated deliberate homicide, Three Mandatory life in prison with no imposed when sufficient strikes have aggravated assault, kidnaping, parole eligibility robbery accumulated. Mandatory life sentences with no possibility of parole are im- Nevada Murder, robbery, kidnaping, Three Court has option to sentence battery, abuse of child, offender to one of the following: posed when a person is out in Georgia, arson, home invasion life without parole; life with Indiana, Louisiana, Maryland, Mon- parole possible after 10 years, or 25 years with parole possible tana, New Jersey, North Carolina, after 10 years South Carolina, Tennessee, Virginia, Washington, and Wisconsin.20 New Jersey Murder, robbery, carjacking Three Mandatory life in prison with no parole eligibility In three States, parole is possible after New Mexico Murder, shooting at or from Three Mandatory life in prison with an offender is “out,” but only after a sig- vehicle and causing harm, parole eligibility after 30 years kidnaping, criminal sexual nificant period of incarceration. In New penetration, armed robbery Mexico, such offenders are eligible for resulting in harm parole after serving 30 years, while North Carolina 47 violent felonies; separate Three Mandatory life in prison with no is required with parole eligibility those in Colorado must serve 40 years finding that offender is before parole can be considered. In “violent habitual offender” California, a minimum of 25 years must North Dakota Any Class A, B, or C felony Two If second strike is for Class A be served before parole eligibility. felony, court may impose extended sentence of up to life; if Class B felony, up to 20 years; Most three-strikes laws involve manda- if Class C felony, up to 10 years tory minimum sentences. Four States— Pennsylvania Murder, voluntary Two Enhanced sentence of up to 10 Connecticut, Kansas, Arkansas, and manslaughter, rape, years Nevada—have recently enacted laws involuntary deviate sexual intercourse, arson, kidnaping, enhancing the possible penalties for robbery, aggravated assault multiple convictions for specified seri- Same offenses Three Enhanced sentence of up to 25 ous felonies but leave the actual sen- years tence to the discretion of the court. South Carolina Murder, voluntary Two Mandatory life in prison with no manslaughter, homicide by parole eligibility • In Connecticut, judges can sentence child abuse, rape, kidnaping, armed robbery, drug an offender to 40 years in prison for a trafficking, embezzlement, second conviction for specified serious bribery, certain accessory and attempt offenses felonies and to life in prison for a third such conviction.

Continued on next page

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Continued from page 8 Comparing preexisting provisions Strikes Needed . State Strike Zone Defined To Be “Out” Meaning of “Out” To accurately describe the impact of three-strikes laws on a State’s justice Tennessee Murder, especially aggravated Two, if prison Mandatory life in prison with no kidnaping, especially term served for parole eligibility and corrections systems, one must first aggravated robbery, aggravated first strike consider how each State was equipped rape, rape of a child, aggravated arson to respond to repeat violent offenders prior to enactment of a three-strikes Same as above, plus rape, Three, if Mandatory life in prison with no aggravated sexual battery, separate prison parole eligibility law. Did the new legislation success- aggravated robbery, terms served for fully close a loophole in the State’s especially aggravated first two strikes burglary, especially criminal sanctioning authority as aggravated child abuse, hoped, or was the new law in effect aggravated sexual exploitation of child targeting a population already covered

Utah Any first- or second-degree Three Court may sentence from 5 years by existing laws? felony up to life To determine the extent to which the Vermont Murder, manslaughter, arson Three Court may sentence up to life in new three-strikes laws differ from pre- causing death, assault and prison existing sentencing provisions, offi- robbery with weapon or causing bodily injury, cials in each of the 24 three-strikes aggravated assault, kidnaping, States were contacted and asked to maiming, aggravated sexual assault, aggravated domestic provide copies of the new three-strikes assault, lewd conduct with child legislation along with any preexisting Virginia Murder, kidnaping, robbery, Three Mandatory life in prison with no habitual or repeat offender statutes. carjacking, sexual assault, parole eligibility conspiracy to commit any of above These statutes, summarized in exhibit 10, show that there were provisions for Washington Charges listed in exhibit 1 Three Mandatory life in prison with no parole eligibility enhanced penalties for repeat offend- ers in all but 1 (Kansas) of the 24 Wisconsin Murder, manslaughter, Three Mandatory life in prison with no States before the passage of the latest vehicular homicide, aggravated parole eligibility battery, abuse of child, three-strikes legislation. In Louisiana, robbery, sexual assault, taking hostages, kidnaping, Maryland, South Carolina, and Ten- arson, burglary nessee, the mandatory penalty for a re- peat violent offender—life in prison without the possibility of parole— already existed and remained un- • In Kansas, the legislature enacted • Similar provisions exist in the Nevada changed, but the definition of such an sentencing guidelines that provide law, which give the judge the option on a offender was expanded under the new judges with a sentencing range based third-strike conviction of imposing a life legislation. on the offense and the offender’s prior sentence without parole, a life sentence • Preexisting law in Louisiana man- record. A recent amendment allows with parole possible after 10 years, or a judges to double guideline sentences dated life in prison without parole for a 25-year sentence with parole possible third conviction for certain violent and for offenders convicted of certain after 10 years. listed violent felonies for the second drug felonies. It also required life im- time and to triple them for those con- Five States—Florida, North Dakota, prisonment with no parole for any victed a third time. Pennsylvania, Utah, and Vermont— fourth or subsequent felony conviction provide sentence ranges up to life, if at least two of the felonies were • In Arkansas, a judge may choose ei- depending on the State, when certain among the listed violent or drug of- ther a mandatory sentence short of life violent offenses are committed by fenses. The three-strikes provisions imprisonment or a life sentence for a repeat offenders. were not changed, but the four-strikes second or third strikeable offense. provisions now require a sentence of

9 R e s e a r c h i n B r i e f life without parole if any of the four Exhibit 10. Comparison of New Strikes Laws With Preexisting Sentencing felonies are on the list of violent or Provisions drug felonies. Features of New Year Features of Preexisting • Maryland added carjacking and State Strikes Legislation Implemented Sentencing Laws armed carjacking to a preexisting law Arkansas Range of no parole sentences 1995 Extended prison terms for repeat starting at 40 years for second offenders, broken down by that mandates a term of life in prison conviction for specified violent seriousness of new conviction felonies; no parole sentences for and number of prior convictions without parole on the fourth conviction third conviction for other specified for a listed crime of violence, if sepa- felonies

rate prison terms have been served for California Mandatory doubling of sentence for 1994 Life with no parole eligibility before the first three such convictions. any felony if one prior serious or 20 years for third violent felony violent felony conviction; mandatory conviction where separate prison life for any third felony if two terms were served for the first • South Carolina, which since 1976 prior serious or violent felony two convictions; life without parole had a law mandating convictions for fourth violent felony conviction

without parole on the third conviction Colorado Mandatory life in prison with no 1994 Mandatory tripling of presumptive for a violent felony, reduced the num- parole eligibility for 40 years for sentence for third conviction third conviction for Class 1 or 2 for any Class 1, 2, 3, 4, or 5 ber of such convictions needed to two. felony or Class 3 felony that is violent felony within 10-year period violent • Tennessee likewise had a preexist- ing three-strikes law with a penalty of Connecticut Up to life in prison for third 1994 On second violent felony conviction conviction for many violent offenses in which period of imprisonment life imprisonment without parole. was served for the first, court Amendments to this law—enacted in could sentence as Class A felony 1994 and 1995—expanded the num- Florida Added new category of “violent 1995 Categories of habitual felony career criminal” to existing offender and habitual violent ber of charges that qualify for a three- habitual offender statute; offender; range of enhanced strikes sentence and added a new for third conviction for specified sentences violent offense, life if first- two-strikes category for the most seri- degree felony, 30–40 years if ous violent offenses. second-degree felony, 10–15 years if third-degree felony

Two States—North Dakota and Ver- Georgia Mandatory life without parole 1995 On fourth felony conviction offender mont—expanded the definition of a for second specified violent must serve maximum time imposed felony conviction and not be eligible for parole until repeat offender: maximum sentence served • Under preexisting law, an offender Indiana Mandatory life without parole 1994 Habitual offender law requiring for third specified violent enhanced sentencing on third in North Dakota would receive an en- felony conviction felony conviction hanced sentence on the second con- Kansas Allows court to double sentencing 1994 No provisions for enhancing viction for Class A or B offenses. The guidelines for second and third sentences on guidelines for convictions for many “person repeat offenders new law expands the preexisting stat- felonies” ute to include Class C offenses. Louisiana Mandatory life without parole for 1994 Same law, except that for fourth • In Vermont, which had allowed sen- third specified felony conviction felony conviction, at least two or for fourth felony conviction, of the convictions must have tencing of up to life in prison for an of- including at least one conviction been among listed violent or fender convicted of any felony for the for specified felonies drug offenses fourth time, a new law allows for a life Maryland Life without parole for fourth 1994 Same law, except that carjacking violent felony conviction for and armed carjacking were not on sentence on the third conviction for a which separate prison terms the list of offenses receiving listed violent offense while retaining were served for the first three this sentence the fourth conviction provision. Montana Mandatory life without parole 1995 Persistent offender statute for second conviction for certain allowing extended sentence of • In Virginia the definition of a repeat offenses and third conviction 5–100 years, to be served violent offender remained essentially for other offenses consecutively with any other sentence, for person convicted the same (third conviction for a violent of any felony with one or more prior felony convictions within offense), but the was en- previous 5 years hanced. The State moved from providing Continued on next page

10 R e s e a r c h i n B r i e f

Continued from page 10 no parole eligibility, no matter the sen- Features of New Year Features of Preexisting State Strikes Legislation Implemented Sentencing Laws tence, for those convicted of three Nevada Range of options for enhancing 1995 Same options, but on conviction separate violent felonies to mandating sentence on third conviction for violent felony if three life sentences with no parole eligibility for violent felony prior felony convictions of any kind for this group. New Jersey Mandatory life without parole for 1995 Rarely invoked “persistent offender” Several States supplemented existing third conviction for certain violent provision allowing sentence of one felonies degree higher than the conviction habitual offender laws for any felony offense on third felony conviction with new laws that focused only on for first-, second-, or third-degree felony violent felonies.

New Mexico Mandatory life with parole 1994 Mandatory increased sentence of eligibility after 30 years for 1 year on second felony conviction, • Preexisting Colorado law required a third violent felony conviction 4 years on third, and 8 years on tripling of the presumptive sentence fourth or more for persons convicted of any Class 1, North Carolina Mandatory life without parole for 1994 Habitual criminal statute mandating 2, 3, 4, or 5 violent felony three times third conviction for violent offense an additional consecutive term of 25 years on third conviction for any within a 10-year period. The new felony, with the court specifying three-strikes law, which mandates a minimum number of years to be served before parole eligibility life sentence with no parole eligibility

North Dakota Enhanced sentences for second 1995 Enhanced sentences for second for 40 years for a third violent offense conviction for Class A, B, or C conviction for only Class A or B conviction, does not contain the 10- felony felony year time period of the preexisting law. Pennsylvania Mandatory minimum enhanced 1995 Mandatory minimum enhanced sentence of 10 years for second sentence of 5 years for second • New Mexico took a similar path, conviction for crime of violence or subsequent conviction for adding life imprisonment with parole and 25 years for third such certain specified crimes of conviction violence eligibility after 30 years for a third vio-

South Carolina Mandatory life without parole for 1995 Mandatory life without parole lent felony conviction to a preexisting second conviction for specified for third conviction for same provision calling for a mandatory felonies specified felonies added term of imprisonment of 1 year Tennessee Mandatory life without parole for 1995 Mandatory life without parole on a second felony conviction, 4 years second conviction for designated for third violent felony conviction violent felonies; same for third on a third conviction, and 8 years on a conviction for other violent felonies fourth or subsequent conviction. Utah Second- and third-degree felony 1995 Second- and third-degree felonies offenders sentenced as first-degree receive enhanced sentence of 5 years • A new law in Indiana mandating life felons, and first-degree felons not to life if offender has two prior in prison without parole on a third eligible for , if they have convictions at least as severe as two prior convictions for any second-degree felonies conviction for certain violent offenses felonies and a present conviction supplements a preexisting law that re- for a violent felony quires an enhanced sentence on a Vermont Up to life with no suspended 1995 Up to life for fourth felony third conviction for any felony. sentence or no probation eligibility conviction and no early release for third conviction for crime of violence; • Under preexisting law in Georgia, of- up to life for fourth felony fenders convicted of any felony for a conviction of any kind fourth time must serve the maximum Virginia Mandatory life without parole on 1994 No parole eligibility if convicted sentence imposed before parole eligi- third conviction for specified of three separate violent felonies violent felonies or drug distribution bility. A new provision was added to charges this statute mandating life in prison Washington Mandatory life without parole on 1993 Number of prior convictions without parole on the second convic- third conviction for specified factored into offender score on tion for a specified violent felony. violent felonies State’s sentencing guidelines

Wisconsin Mandatory life without parole on 1994 For repeat felony offenders, up to 10 • An habitual in North third conviction for specified years can be added to sentences of Carolina required an additional con- serious offenses 10 years or more; 6 years can be added to sentences of 1–10 years secutive sentence of 25 years on the

11 R e s e a r c h i n B r i e f third conviction for any felony. Provi- Other States had preexisting habitual under preexisting repeat offender stat- sions mandating life without parole on offender laws that allowed for en- utes, it is not likely that these laws will the third conviction for violent felonies hanced sentences, but such sen- have a significant impact on the have been added to the preexisting law. tences were not mandatory. courts, jails, or prison systems in those States. However, even though the ac- In some States, the changes involved • Preexisting Florida law allowed the tual number of cases in the 24 States both expanding the definitions of re- court to sentence habitual violent is expected to be small, it is too early peat violent offenders and enhancing felony offenders to extended prison to determine the impact more specifi- the sentences. terms, including up to life in certain cally because the laws have not been instances. The recent law creates a • The habitual offender statute that in place long and serious cases, as de- new category of “violent career crimi- was in effect in California prior to the scribed in these strike statutes, by nal” and establishes mandatory sen- enactment of the three-strikes law their nature take longer to reach dispo- tences ranging from 10 to 15 years for mandated a sentence of life imprison- sition. a third-degree felony, 30 to 40 years ment with first parole eligibility after for a second-degree felony, and life im- 20 years for persons who were con- prisonment for a first-degree felony. Conclusion victed for a third time of a listed vio- lent offense and who had served • Until New Jersey enacted a law in “Three strikes and you’re out” as a ty- separate prison terms for the first two 1995 mandating life in prison without pology for criminal justice sanctioning convictions. It also provided that on parole for a third conviction for cer- is not easily defined. No common defi- the fourth conviction for such a felony tain violent offenses, it was left to the nitions exist for the terms “three,” in which three separate prison terms discretion of the sentencing judge to “strike,” or “out” across the States. had been served, the offender was to determine if the third conviction for a However, certain factors are associ- be sentenced to life without parole. first-, second-, or third-degree felony ated with all of the three-strikes laws The new law does not require any warranted an extended term of im- passed in the 24 States. The first is the prison time to have been served for a prisonment. authorization—or in some instances, listed felony to count as a first or sec- mandate—for longer periods of incar- • A Wisconsin law that allowed the ond strike nor that the third strike be a ceration for those convicted of violent court to extend sentences by up to 10 violent felony. It does, however, re- crimes. years for repeat offenders in certain quire a minimum of 25 years to be cases was supplemented in 1994 with Other similarities include the following: served for the third strike and contains a three-strikes law requiring a term of enhanced penalties for a second strike. life imprisonment without parole on • All but 1 (Kansas) of the 24 States • Preexisting Pennsylvania law man- the third conviction for listed felony had preexisting laws that targeted re- dated an extended prison term of 5 offenses. peat violent offenders; the breadth of years for the second or subsequent those preexisting statutes will, to a • A similar preexisting statute in conviction for certain specified crimes large extent, determine the impact of Montana provided the court with a sen- of violence. The new law expands the the new laws in each State. tencing range of 5 to 100 years as an list of violent offenses and amends the extended term to be served consecu- • All of the statutes either increase the extended mandatory minimum prison tively with the original sentence for period of incarceration for violent term from 5 to 10 years for a second those convicted of a felony twice within crime, expand the number of crimes conviction and to 25 years for a third 5 years. The new law requires a sen- that are included in the violent crime such conviction. tence of life without parole for those category, or both. In some instances • Before enactment of the three-strikes convicted of certain violent offenses for laws simply changed the period of in- law in Washington, which requires life the second time and of other violent of- carceration for a particular crime from without parole on a third conviction for fenses for the third time. a range to a mandated fixed number of specified violent offenses, sentences years. Since many of the new strikes laws for offenders were calculated using the target offenders who would have al- • In the majority of States, the new leg- State’s sentencing guidelines. ready received lengthy prison terms islation has reduced judicial discretion

12 R e s e a r c h i n B r i e f at the sentencing phase of the criminal the budget ramifications of any justice process. This appears to con- changes that have taken place. The John Clark is a Senior Associate at tinue the recent trend of legislatively following questions need to be ad- the Pretrial Services Resource Cen- imposed limitations on judges’ deci- dressed to learn more about this sen- ter. James Austin, Ph.D., is Execu- sions, as evidenced by the expansion tencing reform effort and its impact: tive Vice President of the National of mandatory minimum sentence legis- Council on Crime and Delinquency. lation and sentencing guidelines. • Is there a measurable effect on crime D. Alan Henry is Executive Direc- in States where such laws were passed? tor of the Pretrial Services Re- The rapid expansion of three-strikes • If yes, does this effect differ from source Center. The project was laws, regardless of how they are de- supported by contract 95–IJ–CX– fined, reflects the perceptions that what is occurring in States that have not adopted such laws? 0026 awarded to the National existing laws did not adequately pro- Council on Crime and Delinquency tect public safety in their application • In States that are considering three- by the National Institute of Justice. and/or outcome, that exceptional inci- strikes legislation but have not yet en- dents had occurred that the new laws acted it, what are likely to be the would address, or that the intent of features of such laws? Notes current laws was being frustrated by 1. Bureau of Justice Assistance, Na- other factors such as prison crowding. •What factors differentiate States that tional Assessment of Structured Sen- Whether the perceptions were accu- have not adopted three-strikes legisla- tencing, U.S. Department of Justice, rate and what the impact will be of the tion from those that have? February 1996. new laws are questions that cannot yet • To what extent are the laws modified be answered. over time by practice or new legisla- 2. Donna Lyons, “Three Strikes” Legis- tion to moderate their use? lation Update, National Conference of Early evidence suggests that most of State Legislatures, December 1995. the laws will have minimal impact on • To what extent are there variations in their respective State prison systems. the application of the laws, both across 3. Michael G. Turner et al., “ ‘Three States have drafted these laws so they and within courts and counties? Strikes and You’re Out’ Legislation: A would be applied to only the most vio- • To what extent does different appli- National Assessment,” Federal Proba- lent repeat offenders. In most States cation of the law to inmates with simi- tion, Vol. 59, No. 8, September 1995. these offenders were already receiving lar offenses and prior records affect 4. Several States have had such legis- lengthy prison terms under existing their behavior within the prison and lation on the books for many years. For statutes. Only broadly defined two- jail systems? strikes provisions such as California’s example, South Dakota has had three- have the potential to radically alter ex- • What features of two- and three- strikes-type legislation since 1877. isting sentencing practices; even in strikes laws are associated with com- 5. James Austin, “ ‘Three Strikes and that State, indications are that judicial pliance (or lack of compliance) with You’re Out’: The Likely Consequences interpretations of the law—recently the laws’ provisions by prosecutors on the Courts, Prisons, and Crime in supported by a State Supreme Court and judges? California and Washington State,” St. decision—as well as prosecutorial dis- • What impact have these sentencing Louis University Public Law Review, cretion in how the law is applied may reforms had on public perceptions of Vol. 14, No. 1, 1994. blunt the anticipated increases. the criminal justice system and its ability to incapacitate dangerous of- 6. Wash. Rev. Code Ann. § 9.94A.030 Followup research will continue to fenders? (West 1994). track in detail the impact of three- strikes laws on each stage of the crimi- • Based on the early experiences of 7. Cal. Penal Code § 667 (Deering nal justice process (including California and Washington State, what 1994). setting, detention, time to trial, type of lessons can be learned about project- trial, plea negotiations, and jail and ing the impact of sentencing reforms 8. The Washington law does contain a prison population levels), as well as on the courts, corrections, and crime? provision retaining the Governor’s

13 R e s e a r c h i n B r i e f authority to grant a or clem- 13. Center for Urban Analysis, Santa 19. The California law requires two- ency, but it also recommends that no Clara County Office of the County Ex- strikers to receive sentences twice as person sentenced under this law to life ecutive, “Comparing Administration of long as normally expected and to serve in prison without parole be granted the ‘Three-Strikes Law’ in the County 80 percent of their sentences less pre- clemency until the offender has of Los Angeles with Other Large Cali- trial custody credits. Three-strikers reached 60 years of age and is judged fornia Counties,” May 1996. must serve their entire sentences. to be no longer a threat to society. Prior to the law’s enactment, inmates 14. In mid-1995 an all-time high of served slightly less than 50 percent of 9. Austin, 1994. approximately 3,500 cases were pend- their sentences. ing in Los Angeles Central District 10. Austin, 1994. Court. With the Delay Reduction Pro- 20. Virginia law does provide for the 11. Countywide Criminal Justice Coor- gram, that backlog was reduced to ap- release of prisoners 65 years of age dination Committee, “Impact of the proximately 1,800 cases by January and older who have served a specified ‘Three Strikes Law’ on the Criminal 1997. period of imprisonment, and a North Justice System in Los Angeles Carolina law separate from the three- 15. Los Angeles County Sheriff’s De- strikes statute entitles those sentenced County,” November 15, 1995. Because partment, “ ‘Three Strikes’ Law— the jail system is limited in the num- to life without parole to a review of Impact on Jail: Summary Analysis,” their sentences after serving 25 years. ber of inmates it can house as a result August 31, 1996. of a Federal court order and con- Findings and conclusions of the research re- straints on the sheriff’s budget, the use 16. Washington Department of ported here are those of the authors and do not of early release mechanisms for lower Corrections. necessarily reflect the official position or poli- cies of the U.S. Department of Justice. risk sentenced offenders has been ac- celerated to make room for the growing 17. California Department of Corrections. The National Institute of Justice is a number of two- and three-strikes component of the Office of Justice Programs, cases. This policy has not increased 18. People v. Superior Court (Romero) which also includes the Bureau of Justice the size of the jail population, but it (1996), 13 Cal. 4th 497, 53 Cal. Rptr. Assistance, the Bureau of Justice Statistics, has changed its composition. the Office of Juvenile Justice and Delinquency 2d 789, 917 P.2d 628. Prevention, and the Office for Victims of 12. State Sheriffs’ Association, Three Crime. Strikes Jail Population Report, 1995. NCJ 165369

14 R e s e a r c h i n B r i e f

Selected NIJ Publications About Sentencing Legislation Listed below are some NIJ publications and videos related to issues of sentencing legislation. The products are free, except as indicated, and can be obtained from the National Criminal Justice Reference Service (NCJRS): phone 800–851–3420, e-mail [email protected], or write NCJRS, Box 6000, Rockville, MD 20849–6000. These documents also can be downloaded through the NCJRS FTP site in ASCII or graphic formats. They can be viewed online at the Justice Information Center World Wide Web site. Call NCJRS for more information. Please note that when free publications are out of stock, they are available as photocopies or through interlibrary loan.

Alternative Sanctions in Germany: An Overview of Parent, Dale, Terence Dunworth, Douglas McDonald, Germany’s Sentencing Practices and William Rhodes NIJ Research Preview, 1996 Key Legislative Issues in Criminal Justice: Inter- FS 000137 mediate Sanctions NIJ Research in Action, 1997 Austin, James, Ph.D. NCJ 161838 Sentencing Guidelines: A State Perspective VHS videotape, 1997 Parent, Dale, Terence Dunworth, Douglas McDonald, NCJ 164726 and William Rhodes (U.S. $19, and other foreign countries $24) Key Legislative Issues in Criminal Justice: Greenwood, Peter W., Ph.D. NIJ Research in Action, 1997 Three Strikes, You’re Out: Benefits and Costs of NCJ 161839 California’s New Mandatory Sentencing Law VHS videotape, 1995 Pfeiffer, Christian, Ph.D. NCJ 152236 Sentencing Policy and Crime Rates in (U.S. $19, Canada and other foreign countries $24) Reunified Germany VHS videotape, 1995 Parent, Dale, Terence Dunworth, Douglas McDonald, NCJ 152237 and William Rhodes (U.S. $19, Canada and other foreign countries $24) Key Legislative Issues in Criminal Justice: The Impact of Sentencing Guidelines Tonry, Michael NIJ Research in Action, 1996 Intermediate Sanctions in Sentencing NCJ 161837 Guidelines Issues and Practices, May 1997 NCJ 165043

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