University of St. Thomas Journal of Law and Public Policy Volume 5 Issue 1 Fall 2010 Article 7 January 2010 Arguments against the Use of Recidivist Statutes That Contain Mandatory Minimum Sentences Anthony Nagorski Follow this and additional works at: https://ir.stthomas.edu/ustjlpp Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation Anthony Nagorski, Arguments against the Use of Recidivist Statutes That Contain Mandatory Minimum Sentences, 5 U. ST. THOMAS J.L. & PUB. POL'Y 214 (2010). Available at: https://ir.stthomas.edu/ustjlpp/vol5/iss1/7 This Note is brought to you for free and open access by UST Research Online and the University of St. Thomas Journal of Law and Public Policy. For more information, please contact the Editor-in-Chief at [email protected]. ARGUMENTS AGAINST THE USE OF RECIDIVIST STATUTES THAT CONTAIN MANDATORY MINIMUM SENTENCES ANTHONY NA GORSKI ABSTRACT The goal of this article is to answer the question: Why have more states not enacted habitual offender statutes after the initial legislative enactment boom of these statutes in the 1990s? The focus of this article is on habitual offender laws, most notably Three Strikes laws, which provide for mandatory minimum sentences imposed upon a defendant after a certain number of prior offenses have been committed. Focusing specifically on Three Strikes laws limits the scope of this analysis regarding habitual offender statutes because it leaves out arguments associated with the discretionary decisions of judges and prosecutors within such statutes. Repeat offender statutes that carry mandatory minimum sentences are inherently unfair to defendants. Additionally, these laws are being reevaluated in an effort to cut costs. The punishment a defendant serves under a recidivist statute may be disproportionate to the actual offense committed. These statutes also unfairly impose a punishment for a defendant's prior offenses for which they have already been punished, essentially punishing a defendant for his status as a "criminal." These statutes create unfair penalties for defendants, fail to deter criminals, overcrowd prisons, and lack any traditional criminal justice rationale for their existence. Such statutes are an ineffective way to deter crime and they impose sentences that are unfair to defendants. I INTRODUCTION Recidivist statutes, also termed habitual offender laws, significantly increase the prison sentences handed down to persons convicted of a violent crime or serious felony. In fact, these statutes require that those offenders be given a prison sentence of a significant number of years (usually twenty- five years to life), rather than a lesser punishment possible in sentencing circumstances where a Three Strikes statute is not considered. This paper J.D. Candidate 2011, University of St. Thomas School of Law; Symposium Director, Journal of Law and Public Policy. No. 1] Arguments Against the Use of Recidivist Statutes focuses only on those habitual offender laws that require a mandatory minimum sentence. Any reference to habitual offender statutes, or Three Strikes laws, in this paper applies only to those statutes which contain mandatory minimum sentences. Focusing solely on this specific type of habitual offender law limits the scope of the analysis and leaves out any arguments related to discretionary decisions made with regard to recidivist laws. Three Strikes laws are statutes "prescribing an enhanced sentence, esp[ecially] life imprisonment, for a repeat offender's third felony conviction."' These statutes have been called into enactment by state and federal legislatures in an attempt to answer the question: "How do we deal with those individuals who refuse to be rehabilitated and deterred from committing future crimes?"' Economic theory holds that, all else equal, a person is less likely to commit a crime when the expected costs for committing that crime increase.3 The additional prison terms called for by recidivist laws increase the expected costs for persons who commit new crimes subsequent to a prior conviction for a crime defined within the statute. These laws were especially tempting to enact given the repeated statistic that six percent of criminal offenders commit nearly seventy percent of all crimes, and six percent of violent offenders commit seventy percent of all violent crimes.4 It would seem logical that enacting a law which both deters new criminals and keeps repeat violent offenders locked up for longer periods of time would decrease the overall crime rates. It was precisely this logic that helped recidivist laws increase in popularity in the 1990s. In 1999, twenty- six states and the federal government had enacted laws that were considered Three Strikes laws in an attempt to fird a way to decrease skyrocketing 1. BLACK'S LAW DICTIONARY 719 (3d pocket ed. 2006). 2. Daniel Lungren, Letter to the Editor, Financial Costs of "3 Strikes Law," L.A. TIMES, Jan. 10, 1996, at B8 (stating claim by California Attorney General Daniel Lungren that the state's Three Strikes law is "having an immediate impact on the 7% of all criminals who commit between 50% and 70% of all crimes"); see also Bill Jones, Impact of "Three Strikes" Draws Praise, Criticism: Pro Evidence Shows Law is Working, FRESNO BEE, Jan. 21, 1996, at B7 (reporting that California Secretary of State who co-sponsored the Three Strikes law stated that 6% of criminals are responsible for 70% of the state's crime); cf, Mario M. Cuomo, "Three Strikes, " Two Views: Harsh, Sure, But Fair,N.Y. TIMES, Jan. 29, 1994, at A19 (stating that a Three Strikes law "would give us a heavy hammer to use against these career criminals"); Timothy Egan, A 3-Strike Law Shows It's Not as Simple as It Seems, N.Y. TIMES, Feb. 15, 1994, at Al (describing claims by proponents that Washington's Three Strikes law will remove from society a core group of incorrigible violent criminals). 3. See, e.g., Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968); Isaac Ehrlich, Participation in Illegitimate Activities: A Theoretical and EmpiricalInvestigation, 81 J. POL. ECON. 521 (1973). 4. Linda S. Beres & Thomas D. Griffith, Do Three Strikes Laws Make Sense? Habitual Offender Statutes and Criminal Incapacitation,87 GEO. L.J. 103 (1998); see e.g., Cuomo, supra note 2 (stating that studies have indicated that 15% of offenders are responsible for 85% of personal injury offenses); and Egan, supra note 2 (noting claim by supporters of Washington state's Three Strikes law that federal statistics show 6% of criminals commit 70% of crimes). 216 UNIV. OF ST. THOMAS JOURNAL OFLA W& PUBLIC POLICY [Vol. V crime rates.5 Today, twenty-four states still have Three Strikes laws, but many are continuing to search for ways to decrease prison costs and are offering clemency to individuals previously sentenced to life in prison for nonviolent crimes under recidivist statutes.6 The United States Supreme Court held that various repeat offender statutes are constitutional under the Eighth Amendment, and has rarely overturned a sentence under a Three Strikes law. However, nearly half of the states have yet to pass a Three Strikes statute, and many have amended current recidivist statutes to make them less severe. Also, no new state has passed a Three Strikes law since 1995.1 Recidivist statutes containing mandatory minimum sentences are unjust because they impose a punishment for a defendant's prior offenses. For this reason, the punishment a defendant serves under a recidivist statute is often grossly disproportionate to the actual offense the defendant committed. These statutes are unjust to a defendant because they punish the defendant based on his status as a repeat criminal and not based on his commission of a new crime. Three Strikes laws not only impose unfair penalties upon defendants, but they also fail to deter criminals, overcrowd prisons, and lack traditional criminal justice rationale for their existence. II. OVERVIEW OF NOTABLE AND CURRENT RECIDIVIST STATUTES The United States codified its career offender statute in 18 U.S.C.A. §4B 1.1, which reads: (a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.8 This statute was enacted in November of 1987 with multiple amendments made to it throughout the 1990s; the most current amendment passed as recently as 2002.' The statute requires that a defendant's third conviction be a crime of violence or a controlled substance crime.10 It also requires that the defendant have at least two prior felony convictions for 5. Mike Reynolds, States with Three Strikes Laws, Three Strikes and You're Out: Stop Repeat Offenders, http://www.threestrikes.org/3strikestates.html (last visited Nov. 10, 2010). 6. Matt Kelly, Revisiting Three-Strikes Laws, CHANGE.ORG, Aug. 11, 2009, http://criminaljustice.change.org/blog/view/revisitingthree-strikeslaws. 7. See supra note 5. 8. 18 U.S.C.A. § 4B1.1 (West 2007). 9. Id. (see Historical Notes). 10. Id. No. 1] Arguments Against the Use of Recidivist Statutes either a crime of violence or a controlled substance offense in order to be sentenced as a career offender." The federal career offender law punishes fewer individuals each year and is less severe in its punishments than California's Three Strikes laws, as is illustrated below. However, it is important to note that the federal government of the United States has taken a position in support of repeat offender laws. Between December 1993 and January 1996, twenty-four states enacted some version of the Three Strikes law.'" The original Three Strikes law, passed in the state of Washington, ordered that individuals "who are convicted of the 'most serious offenses' on three occasions be sentenced to life imprisonment without parole."' 3 Other states soon followed by enacting similar versions of the Washington law.