(Professor/Instructor)
(Course/Major)
Source: Law Office of Shawn M. George
<http://www.smgapc.com/practice-areas/california-three-strikes-law/
Every generation in the United States has seen new tactics designed to continue the oppression of racial minorities, abjuring the rights the Founding Fathers deemed necessary and irrevocable for all people in the nation. Many African Americans were denied their right to participate in the growth of the new nation. Centuries later, the United States is still far from being called a true “egalitarian society.” Racial segregation and bigotry have been evinced in a number of forms; over the years, these forms have changed and evolved but the results of the practice of these actions have remained unchanged. African American males are still subjected to legitimized bigotry in the labor market, housing opportunities, social welfare, and even serving in the criminal justice system.
What has remained even with the elimination of the “Jim Crow” laws was that though the primary structure has changed, the language to enforce the structures has stayed unchanged. In an age of political correctness, the term “race” is engaged in the criminal justice system and has evolved into the word “criminal” and then uses all of the previous practices associated with the Jim Crow policies. Simply put, when one is labeled as a criminal rather than as a member of a racial minority, it is legal and correct to use the practices once deemed legitimate to discriminate against African Americans in the past, and even in the present (Alexander 1-2).
Three strikes law: history and impact
On the 7th of March, 1994, Governor Pete Wilson signed AB971 or the “three strikes and you’re out” law. By November, California voters reestablished the law by adopting in a landslide vote Proposition 184, regarded as the mist substantive measure to alter the state’s criminal justice system in at least a decade (Legislative Analyst’s Office). Two significant clauses establishes California’s law as the most stringent in the United States. One, the law created an expanded “strike zone” or offenses that can be regarded as “strikes.” Two, the law contains a “two-strike penalty” with the previous offense sentence doubled and must serve 80 percent of the sentence before being allowed to be released (Austin, Clark, Hardyman, and Henry 16-18).
The adoption of California’s “Three Strikes and You’re Out” law has been beset by debates and conflicts in the area of racial equality from the start. The initial case of Jerry DeWayne Williams or the “pizza thief” emphasized the potential issues related to the imposition of the law on “non-violent” crimes. One of the main issues was the defendant’s race; Williams was an African America, and the US criminal justice system is burdened by ethnic and racial inequalities. Interestingly, the application of the law seemed to heighten the disparities within the system (Ehlers, Schiraldi, and Lotke 2). In the research of the Legal Analyst’s Office (2004), it was noted that African Americans comprises the largest sector of “second and third strikers” in the California prison system (37 percent). The statistics was followed by Latinos and Caucasians at 33 and 26 percent respectively.
Current Discourse (HCP)
The “three strikes and you’re out” law in California is probably the most glaring call from the public for higher punishments in sentencing policies for brutal crimes and criminals. Supporters as well as opponents believed the law would significantly impact case resolutions and overall sanctioning trends, there were scholars who maintained the position that the major effect of the law would remain merely symbolic; Feeley and Kamin (1996), as cited in Sutton (37-38), held that the law was nothing more than a “product of moral panics or symbolical crusades without improving efficiencies in controlling criminality. Simply put, these laws were nothing more than pacifiers to calm the public’s fear of crime.
The engagement of “mandatory minimum sentences” inclusive of “three strikes” statutes culminates in inordinately expanded sentencing for “non-violent offenders” who are merely narcotics abusers or merely “low level functionaries” in the criminal world. Here, African Americans are the “traditional” targets for these instances. The Leadership Conference avers that the reason here is that African Americans face a reduced likelihood of gaining a positive plea arrangement from prosecutors, and are inordinately subjected to drug sentencing laws adopted by state legislatures and Congress. Here, though “whites” and African American suspects are prosecuted for the same offense, “whites” rarely have to face mandatory minimums as majority of “white” drug suspects are prosecuted in state criminal justice systems that do not implement these types of laws.
Justification for excessive justice: California and Three strikes (this is where the argument centers on California)
When the law was adopted by California’s lawmaking body, the body concluded that there was a legitimate need to incapacitate felons who have been convicted for at least one violent criminal activity. The Eighth Amendment does not state that California is barred from adopting such a policy. Rather, Shatz cases such as Parke v Raley, (91-719), 506 U.S. 20 (1992), and Oyler v Boles 368 U.S. 448 (1962) have reinforced the notion that possible reoffending is a sound basis for increasing severity in the punishments in sentencing convicted individuals.(collective impact of all the cases. Again, readers will be able to understand these).
Three strikes in American jurisprudence
According to Cheeseman, del Carmen, and Worley (16-17), every jurisdiction is allowed the opportunity to set down what crimes or activities will count against an individual as a “strike.” Offenses such as sexual attacks, larceny, “aggravated assault,” and car theft are among the common offenses listed by the states as a “strike;” other jurisdictions added other crimes to the list of “strike” activities. For example, Louisiana added narcotics crimes punishable by more than 5 years as a strike; Tennessee mandates that previous crimes must be those that sentenced the individual to a prison term. However, there is a degree of confusion in “three strikes” regarding what will be considered as crimes that fall within the “strike zone;” moreover, legal regimes among the states vary as to what will constitute as the “strikes” for the “out. Lastly, as seen earlier, “strike” offenses that are recognized in one jurisdiction are not recognized in other states
In addition, Cheeseman et al (11) states that the position of the US Supreme Court on stringent and expanded sentencing policies was further strengthened in the 2003 decision in Ewing v California. In the case facts, the defendant was convicted for stealing golf clubs. As mandated by three strikes law requisites, Ewing was sentenced to serve 25 years to life in prison owing to his prior four convictions for violent crimes. In handing down the sentence, the court rejected motions to use its discretion to decrease the ruling to a minor offense that allows a number of crimes to be reclassified as a misdemeanor. (case explained).
In contesting the decision, Ewing argued that the sentence of 25 years of life was “grossly disproportionate” to the crime of stealing three golf clubs. In refusing Ewing’s argument on this matter, the Court reasoned that the severe sentence was not due to the theft of the sporting equipment; it was due to a previous conviction for stealing $1,200 in merchandize after being convicted twice for violent crimes. The Court placed a heavy premium on the factor of recidivism rather than the current offense in justifying the decision (Aspen Publishers, Casenote Publishing Company 11).
A recent study evinces that nearly two-thirds of convicts who have served their sentences were soon charged with a violent crime within a period of three (3) years after being released; moreover, reoffending rates were also rising. The Court in Ewing resolved that recidivism laws were primarily designed to prevent recidivism and California’s reoffending rates decreased with the application of these laws. In Solem v Helm, 463 U.S. 277 (1983), the High Court ruled that sentencing a person to “life without the possibility of parole” was inordinate when factoring in the “three strikes” law.
However, the Court felt that the imposition of the same sentence for possessing 700 grams of cocaine was not inordinate. Though the Eighth Amendment prohibits the imposition of a “grossly disproportionate” punishment, the Court does not hold to the concept of a “strict proportionality.” This was seen in the rulings of the Court in cases such as Harmelin v Michigan, 501 U.S. 957 (1991) and in Lockyer v Andrade. 538 U.S. 63 (2003) 270 F.3d 743, and in Ewing v California, 538 U.S. 11 (2003), the Court affirmed the position that states should have the discretion to craft their own sentencing policies (Cheeseman, del Carmen, and Worley 11-13). (Cases explained).
The three strikes law was not geared to make sentencing policies more punitive; it was intended to be part of a concerted effort to engage the judicial system in an effort to reduce severe or brutal crimes. Though the use of these types of laws is new, the use of these laws has a longstanding history in American jurisprudence. Harmelin proffers that single penological premise is to be favored over others. The authors aver that in the finding of the High Court, it is the state, and not Congress, that must be the ultimate determinant of sentencing policies. In this light, the Court ruled that California did not infringe on the Eighth as it was not inordinate (Cheeseman, del Carmen, and Worley 11).
Studies have shown that race is a major component in sentencing; specifically in cases engaging the imposition of the death penalty. In instances where the crime was non-violent buts listed under the “three strikes” clause, such as selling narcotics, 65 percent serving “life without parole (LWOP) are African American, 17 percent are “white,” and 15 percent were Latinos (American Civil Liberties Union 3). One of the more disturbing instances is cases where those serving LWOP sentences are juvenile offenders. Of those sentenced under California’s “three strikes law,” African American youths serving LWOP sanctions number 18 times more than Latino and white youths (American 3).
Figure 1: Likelihood of imprisonment between different sectors. Source: The Sentencing Project
The inequalities in incarceration rates for racial minorities taken within the context of “Three Strikes” are more pronounced even in the initial stage of the criminal justice process when the person is arrested. Ehelers, Schiraldi, and Lotke (2004) aver that members of racial minorities are taken into custody at a higher rate compared to “whites;” as the person moves higher in the system, the inequality rises. In the context of California, the authors report that though African Americans comprise only 6.5 percent of the population, 21. 7 percent of arrests are from this minority. The rising disparity increases; African Americans comprise roughly 30 percent of the jurisdiction’s prison population, 36 percent of “second strikers” and an estimated 44 percent of “third strikers.”
American author and sociologist Richard Quinney, in his 1977 work Class, State and Crime: on the theory and practice of criminal justice and cited in the work of Vito and Maahs (2011), links the works of Marx, Engels, and Bonger to define the majority of criminal activities as the “offspring” of capitalism. In the work Class, State, and Crime (1977), Quinney proffers that the criminal justice system is the lone support system to hold up a disintegrating capitalist regime. Quinney also proffers the tenet that the criminal justice system was not originally designed to serve the needs for crime prevention; rather, the criminal justice system is geared as a control mechanism to restrict the freedoms and the movements of the lower and marginalized sectors of society (Vito and Maahs 216).
Strategic Racism: Reins on the minorities
This type of bigotry can be referred to as “strategic racism,” where the bias is engaged to “keep the lower classes in their place” while the wealthy and dominant classes increase their holdings and influence in society. Here, strategic bigotry is set apart from other types of racism in that the supporters and implementers deliberately endeavor to engage race as a to further their own interests. However, there is an interesting footnote to “strategic racism;” this type of bigotry is not primarily about race. The main motivator of this type of bigotry is not the satisfaction of racial hatred per se; it is the furtherance of the dominating class’ power, wealth, and position. Nonetheless, practitioners of this type of racism act more out of inordinate greed rather than racial hatred (Haney-Lopez 47-48). In summation, the position of the research is that recidivist laws, including the infamous “three strikes” laws, are no more than just the expression of the social domination that the ruling class wants to forcefully impose on the lower classes, but in this case, by legally implying guilt by the color of one’s skin.
Advocacy Project: Striking out “three strikes and you’re out”
The main argument for the application of the “three strikes” law is that it is more cost-efficient to prevent the commission of future crimes than burden society with the reoffending potential of criminals. In comparison, studies drawn from a number of studies against the adoption of such inordinately harsh policies that the law is not delivering on its main deliverables. Gallagher and Lippard (2014) propound on the inefficacy of three strikes legislation on a number of grounds.
One, analysts engaging a number of approaches aver that the law does little by way of reducing violent crimes among the jurisdictions that have adopted the mechanism. Two, the argument among three strikes regarding the effectivity of the law is unclear at best. Three, the law infringes on the “proportionality principle” on retribution for the person’s crime. Four, the rehabilitation of the individual is cast out of the picture with the sentencing of the individual to a inordinately severe sentence. Fifth, imposing such a sentence basically rejects the literature that offenders will “grow out” of this stage. Lastly, with the individual sentenced to spend a considerable amount of time in prison, this will eventually contribute to overcrowding problems in the facility (Gallagher and Lippard 1241-1242).
The RAND Corporation, in early 1994, contested the use of its prior research endeavor regarding the savings that will purportedly be actualized in mass incarceration actions. Advocates of the Three Strikes law, in using the RAND study; the study greatly understated the potential benefits of incarcerating repeat offenders under recidivist laws. Later that year, RAND released a disclosure on the financial effects of “three strikes” as well as it efficacy on reducing criminality. In the report, RAND proffered that though this recidivism law would bring about the largest difference in terms of crime reduction, it will be also the most costly.
What is being considered as the most effective alternative to “three strikes” is the “Guaranteed Full Term” program. The RAND report focused on the GFT as this would “incapacitate offenders”- the same objective of “Three Strikes”-in the early stages of their criminal paths. The GFT method would not require that the offender have prior convictions to merit the sanction-one conviction would be sufficient to get the punishment (Vitiello 418-419).
There are initiatives to limit and mitigate the damage of “three strikes” laws. One of the main problems linked to the imposition of mandatory minimum sentences is one of practically and applicability. The premise here is that when government has imposed these punishments on some offenders, it will be difficult if not impossible to check the spread of the “three strikes” contagion to apply to petty crimes such as theft and drug peddling (Zimring 62).
On the 6th of November, 2012, a major change was adopted by California voters with regards to the law. With the adoption of Proposition 36, the law was given a significant overhaul with the implementation of two substantive clauses. The initial provision amended the requisites for sentencing an individual on a “third strike” to 25 years to life in prison. In the original text of the law was enforced to “any new felony” that was done after a conviction on two earlier instances, the new statute carries a requisite that the incriminating strike by a “serious or violent felony”; the requirement for two prior “strikes” as damning factors for the imposition of the 25 to life in prison penalty remained.
The second significant change in the law was the establishment of an appeals mechanism by which offenders who are now in prison serving a “third strike” penalty can appeal their sentence. The goal of the appeal is to lower the “third strike” sentence to a “second strike;” however, this is dependent on the possibility that the offender will be qualified to appeal under the new law (Couzens and Bigelow 5).
The ultimate result of “three strikes” laws across the country has been one of wasteful allocation of scarce financial resources coupled with the massive imprisonment of criminals who are actually non-threats to society. What is more disturbing is that the intended objective of the law-lowering crime rates- has not been achieved. Here, it must be emphasized that sentencing policies must be reevaluated to factor in effective sentencing alternatives and do away with an “overreliance” on sending the offender to prison (Sentencing Project).
Waldron, Quarles, McElreath, Waldron and Mistein (2009) aver that there is an increasing number of jurisdictions are studying other options to sentencing. Among the alternatives being studied are engaging the services of medical personnel such as clinicians and social workers; in addition, other resources such as halfway houses, GPS monitoring mechanisms, vocation equipping programs, and active involvement of probation personnel. Among the promising new approaches in lessening the dependence on sentencing as a general policy in the criminal justice system are redirection programs crafted with the inputs of the courts. In this light, offenders can be diverted to non-criminal justice initiatives prior to the conduct of a trial or sentencing (Waldron, Quarles, McElreath, Waldron and Mistein 321-322).
For example, a number of jurisdictions have actively pursued this alternative. New York as well as New Jersey have followed policies ending their overreliance on imprisonment approaches and have significantly reduced their respective inmate populations without compromising public security (Sentencing Project 38). In the work of Prison Policy Initiative, the law was not even needed if the objectives were to prevent future crimes and reduce existing crime rates.
Crime statistics in California were already reversing prior to the passage of the law and even went lower than a number of jurisdictions without an anti-reoffending law. Violent recidivists already were serving or were faced with the possibility of serving “life without the possibility of parole” punishments. As mentioned earlier, the focus of the law was to incapacitate the offender and have them serve out their “crime-prone” years in prison.
Studies have shown that financial resources allocated for the building of additional penal facilities can be channeled to effective crime prevention programs, hence negating the need for more inmate detention facilities. In addition, as mentioned through the paper, these laws have a distended impact on minorities, with 31 percent of California’s prison population comprised of African Americans; the racial sector also comprised 37 percent of “second strike” offenders and 44 percent of “third strike” offenders (Prison Policy Initiative 2-3).
California’s crime statistic has been steadily dropping over the years in the same manner that the crime rate across the United States has been dropping. However, the cause/s of this decrease has not been clearly established. California leaders have remained adamant that “three strikes” is the most substantial contributor to this decrease. However, a study by D’Alessio and Stolzenberg revealed that in 90 percent of America’s major urban centers, there was no evidence that the law had any substantive impact on the rates of petty crimes or violent crimes for the desired objectives (Prison Policy 11).
The “policy drift” in towards recidivist prevention laws such as “three strikes” began in the 1980s and the 1990s. Though there were rational pronouncements on the benefits of long term incarceration for reoffenders, practical considerations proffer the inordinately high costs for long term incarceration of repeat offenders. Furthermore, there is literature that the possibility of reoffending dramatically drops when the offender reaches “middle age.”
If one were to follow this angle, then incarcerating convicts past this age when the threat these pose to society significantly drops is a “waste of money.” The rising numbers of inmates in state as well as federal prison systems have greatly strained the scarce resources of the government that could have been used in other program related or unrelated to crime prevention (Waldron, Quarles, McElreath, Waldron and Mistein 319).
Figure 2: Decrease of Prison Population. Source: Legislative Analysts Office, 2014
With the largest prison system in the United States, the rising costs of keeping a higher number of inmates owing to three strikes legislation is wreaking havoc on California’s finances. In this light, a number of politicians have tried to propose modest restructurings of the existing system. Among the proposals offered were the establishment of a “sentencing commission” and the release of older inmates. Withal, these proposals seemed doomed from the beginning; state politicians have gained the reputation of rejecting programs that have proven successful in other jurisdictions.
Figure 3: Cost of incarceration compared to education. Source: Klein, 2014
Intervening forces designed to force California state officials, exerted by a disunited Supreme Court, has been engaged to retool its enormously flawed system. Legislative proposals put forward by the state leadership can be regarded as a biased and benign response to the concern. However, even before the resolution of the High Court in Brown v Plata, analysts aver that California’s budgetary woes would force the government to seriously consider retooling their sentencing policies.
However, these observations have gone for naught; initiatives at establishing a California sentencing commission have been largely ignored. Though a number of groups such as the Little Hoover Institute and the Stanford Criminal Justice Center have conducted a number of activities geared to reassess sentencing policies, much of the effort has not been actively pursued. Nonetheless, California does have in place a release program for inmate on humanitarian grounds, such as in cases when the inmate is terminally ill. But in actuality, the Parole Hearings Board has proven to be a road block rather than a bridge to sick inmates (Vitiello 1297-1298).
With the inequality in terms of the rising number of inmates coming from the minority sector and the predominantly “white” custodial staff in the nation’s jails and prison facilities, “racial sensitivity” programs must be instilled in these facilities. In this light, both the inmates and the staff must be assured that the concern of inequality in terms of racial composition in the facility is being addressed by the administration. Here, the administration must seek to forma working group that will include a delegate from each stakeholder within the prison and jail structure-administration, custodial, and inmates-that will reassess every program and policies affecting the treatment of racial minorities in the prison system.
In the context of observing and monitoring racially inclined treatment of inmates in the facility, prison officials must be able to craft policies and programs that will achieve the desired objectives and at the same time decrease unnecessary inequalities. Moreover, prison officials must be able to develop strategies geared towards monitoring the possible buildup of racial conflict within the facility (Sentencing 52). Racial variegations regarding the appreciation of race in the criminal justice system have skewed perceptions of equality in the treatment of minorities in the system.
This has triggered the belief among minorities that these have to overcome the profile of already being convicted on account of one’s race or ethnic origin rather than on case merits. Here, policymakers must lead by example in the same way that these were instrumental in acquiescing to the calls for harsh treatment of minorities (Sentencing Project 37).
Works Cited
Alexander, Michelle. The New Jim Crow: Mass incarceration in the age of colorblindness. New York: New Press (2010).
American Civil Liberties Union “Racial disparities in sentencing” <https://www.aclu.org/sites/default/files/assets/141027_iachr_racial_disparities_aclu_submission_0.pdf
Aspen Publishers, Casenotes Publishers. Criminal law: Keyed to courses usig Dressler’s cases and materials on criminal law. Philadelphia: Aspen Publishers (Wolters Kluwer) (2007).
Austin, James, Clark, John, Hardyman, Patricia, and Henry, Alan “Three strikes and you’re out:” the implementation and impact of strike laws” <https://www.ncjrs.gov/pdffiles1/nij/grants/181297.pdf
Cheeseman, Kelly Ann, del Carmen, Rolando V., Worley Robert. “Three strikes and you’re in: the effect of Ewing v California and three strikes legislation on prison population and resource management.” <http://www.cjcj.org/uploads/cjcj/documents/three_strikes.pdf
Couzens, Richard, and Bigelow, Tricia A “The amendment to the three strikes law” <http://www.courts.ca.gov/documents/Three-Strikes-Amendment-Couzens-Bigelow.pdf (accessed 18 January 18, 2016)
Ehlers, Scott, Schiraldi, Vincent, and Lotke, Eric “Racial divide: an examination of the impact of California’s three strikes law on African Americans and Latinos.” <http://www.justicepolicy.org/uploads/justicepolicy/documents/04-10_tac_caracialdivide_ac-rd.pdf
Gallagher, Charles A., Lippard, Cameron D. Race and racism in the United States: an encyclopedia of the American mosaic. Santa Barbara: ABC-CLIO (2014)
Haney-Lopez, Ian. Dog whistle politics: how coded racial appeals have wrecked the middle class. New York City: Oxford University Press (2014)
Leadership Conference “Race, sentencing and the ‘tough crime” movement” <http://www.civilrights.org/publications/justice-on-trial/sentencing.html
Legislative Analyst’s Office “A primer: Three strikes-the impact after more than a decade” <http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
Prison Policy Initiative “Three Strikes” law: five years later” <http://www.prisonpolicy.org/scans/sp/3strikes.pdf (accessed 18 January 2016)
Sentencing Project, “Race and punishment: racial perceptions of crime and support for punitive policies” < http://sentencingproject.org/doc/publications/rd_Race_and_Punishment.pdf (accessed 18 January 2016)
Sentencing Project, “Reducing disparity in the criminal justice system: a manual for practitioners and policymakers.” <http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf (accessed 18 January 2016)
Shatz, Steven F. California criminal law: cases and problems. New York: LexisNexis (2011).
Sutton, John R “Symbol and substance: effects of California’s three strikes law on felony sentencing” Law and Society Review 47(1) (2013), 37-71
Vito, Gennaro F., Maahs, Jeffrey R. Criminology: theory, research and policy. Burlington: Jones and Bartlett (2011)
Vitiello, Michael “Alternatives to incarceration: why is California lagging behind” Georgia State University Law Review 28(4) (2011); 1273-1312
Vitiello, Michael “Three strikes: can we return to rationality” Journal of Criminal Law and Criminology 87(2) (1997); 395-481
Waldron, Ronald J., Quarles, Chester L., McElreath, David H., Waldron, Michelle E., and Milstein, David Ethan. The criminal justice system: an introduction. 5th ed. Boca Raton: CRC Press (2009)
Zimring, Franklin E “Tough crime are false promises” <http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2554&context=facpubs (accessed 18 January 2016)
