'Three Strikes' Sentencing Laws

The Violent Crime Control and Law Enforcement Act of 1994 requires mandatory life imprisonment for certain convicted felons found guilty in federal court of a serious violent offense. States then began to enact statutes based on this federal law. California, for example, enacted the "Three Strikes and You're Out" law following the murders of Kimber Reynolds and Polly Klaas.

Three strikes laws target habitual offenders with a lengthy criminal history. A repeat offender may also receive a mandatory life sentence after two or more previous felony convictions in federal or state courts. At least one conviction must be a serious violent felony, and the other offense may be a serious drug offense. The sentencing enhancements in this law can significantly impact repeat, violent offenders.

Read on to learn more about our criminal justice system's three strikes offender laws. We'll cover how they work for individuals charged with their first, second, or third felony.

Defining Serious Violent Felonies

The statute defines a serious violent felony to include:

• Murder
• Manslaughter
• Sex offenses
• Kidnapping
• Robbery
• Any offense punishable by 10 years or more that includes an element of the use, or significant risk, of force

The statute also excludes certain serious felonies, such as unarmed robbery offenses or arson, which posed no threat to human life. In those cases, the burden is on the defendant to show that the crimes didn't involve threats to use a dangerous weapon. The defendant must also show that no danger of death or bodily injury was involved. In other words, these can count as strikes unless a defendant proves otherwise.

State Laws and Three Strikes Sentencing

Washington was the first state to enact a three strikes law in 1993. Since then, more than half of the states and the federal government have passed similar laws where a third strike/third conviction of a severe felony is heavily punished. The primary focus of these laws is the containment of recidivism.

California's three strikes law, codified under the California Penal Code, is considered the most far-reaching and frequently used among the states. However, it was substantially amended in 2012 during Proposition 36, also known as the Three Strikes Reform Act.

California's law was undercut in 2016 by a constitutional amendment in Proposition 57 that requires all persons convicted of nonviolent crimes to be considered for the possibility of parole if they've served their primary prison sentence.

Considerable variety in how these sentencing laws are set up exists among the states. These differences include how one strike is defined or whether two strikes or more are required. In some states, the law is "three strikes, and you're out." In other states like South Carolina, you only need two strikes for the most severe offenses. That means those on their second strike can be eligible for mandatory life imprisonment, like third strikers in another state. It depends on what the jurisdiction mandates.

The effectiveness of three strikes laws has been extensively debated. Defendants sentenced to long prison terms under these laws have also sought to challenge these laws as unconstitutional. The California Department of Corrections (CDC) also estimated that the number of inmates sent to prison under the three strikes law was less than it originally projected.

For instance, one defendant was found guilty of stealing $150 worth of videotapes from two California department stores. The defendant had prior convictions in their criminal record. Under California's three strikes law, the judge sentenced the defendant to 50 years in state prison. The defendant challenged his conviction before the U.S. Supreme Court in Lockyer v. Andrade (2003), but the court upheld the law's constitutionality, finding that it didn't violate the gross disproportionality principle.

Some have tried to argue that three strikes laws are no more than cruel and unusual punishment, as was the case in Ewing v. California, but the Supreme Court has disagreed. Justice Sandra Day O'Connor held that the Eighth Amendment forbids extreme sentences grossly disproportionate to the crime. Thus, three strikes laws are not considered cruel and unusual punishment.

To date, 28 states have three strikes laws.

Removing a Strike

People v. Romero in 1996 introduced something known as a Romero motion to the people of California. A Romero motion asks a judge to dismiss a prior strike. This is excellent news for offenders with many felony offenses seeking a prior felony for the judge to dismiss.

Similar Laws

Another federal law, the Armed Career Criminal Act (ACAA), is like the three strikes law. The ACAA mandates a minimum sentence of 15 years for offenders found guilty of illegally possessing a firearm with three or more prior convictions for a violent felony.

The Supreme Court case Borden v. United States affected what prior convictions can be used under this law. Borden v. United States explored whether the "use of force" clause in the ACAA encompasses crimes with an intent requirement of mere recklessness. 

The court held that the "use of force" clause in the ACAA does not include reckless aggravated assault. The court reasoned that recklessness is defined as disregarding a large and unjustifiable risk. Thus, it cannot be directed at another individual and cannot meet the definition of a violent felony.

Are You Subject to Three Strikes Sentencing? Get Professional Legal Help From a Criminal Law Defense Attorney

Do you have previous felony charges? You should know whether your state has a three-strikes law. Learn more about these laws and protect your rights. Contact an experienced criminal defense lawyer in your state.