Three Strikes/Proportionality

2012-09-16 13:03:12

In the early 1990s, growing public unease over high crime rates in the United States led many jurisdictions to adopt ‘‘three strikes’’ provisions targeting serious habitual offenders. Although Sentencing enhancements for repeat offenders have been on the books throughout U.S. history, the new provisions were more comprehensive, prohibiting plea bargaining in almost all circumstances, imposing harsh mandatory minimum sentences, and eliminating probation and parole for certain repeat offenders. Three strikes laws vary considerably by jurisdiction, but the basic idea is that lengthy incarceration of offenders with one or more serious felony convictions removes from the population those individuals most likely to commit serious crimes in the future. By the mid-nineties, all fifty states and the federal government had some form of habitual offender statute. The most familiar provision was enacted in California in 1994 in the wake of two high-profile murders perpetrated by recidivist offenders. Although California’s three strikes law is harsher than most, the controversy over its constitutionality, effectiveness, and fairness has largely shaped the national debate over contemporary habitual offender provisions.


The most significant constitutional challenge to three strikes provisions arises under the Eighth Amendment prohibition against ‘‘cruel and unusual punishments.’’ Opponents of three strikes note that the harsh sentences imposed for an ordinary third felony will often be disproportionate to the gravity of that offense. For example, in Lockyer v. Andrade (538 U.S. 63, 2003), decided by the Supreme Court in 2003, the defendant’s ‘‘third strike’’ was the theft of approximately $150 in videotapes from two Kmart stores. Because Andrade had previously been convicted of transporting marijuana and of various theft offenses, he was prosecuted under California’s three strikes law and sentenced to two consecutive terms of twenty-five years to life in prison. After serving a mandatory minimum of fifty years, Andrade would become eligible for parole at the age of eighty-seven.

In affirming Andrade’s sentence, the Court reviewed and clarified the proportionality dimension of its Eighth Amendment jurisprudence. In Weems v. United States (217 U.S. 349, 1910), the Court invalidated a sentence of fifteen years at hard labor for an offender who falsified a public document, observing that ‘‘it is a precept of justice that punishment for crime should be graduated and proportioned to desert.’’ In subsequent cases, the Court emphasized that reviewing courts should grant substantial deference to legislative authority and judicial discretion in setting criminal punishments. As a result, ‘‘successful challenges to the proportionality of particular sentences [should be] exceedingly rare.’’

Thus, in Rummel v. Estelle (445 U.S. 263, 1980), the Court rejected a challenge to a repeat offender statue that resulted in a mandatory life sentence for a third felony fraud conviction. Among other things, the Court noted, the defendant would be eligible for parole in twelve years. In Solem v. Helm (463 U.S. 277, 1983), however, the Court invalidated a habitual offender provision that resulted in a life sentence without the possibility of parole for a nonviolent repeat offender convicted of check fraud. The Court identified three criteria relevant to its analysis: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other offenders in the same jurisdiction; and (3) the sentences imposed for similar offenses in other jurisdictions. Acknowledging that ‘‘a State is justified in punishing a recidivist more severely than it punishes a first offender,’’ the Court noted that a life sentence was ‘‘the most severe punishment the State could have imposed on any criminal for any crime.’’ Moreover, the defendant ‘‘could not have received such a severe sentence in 48 of the 50 States.’’

In Harmelin v. Michigan (501 U.S. 957, 1991), the Court upheld a mandatory life sentence without the possibility of parole for possession of 672 grams of cocaine. Although the justices could not agree on a single rationale, a majority of the Court effectively repudiated Solem’s three-part proportionality test. In a concurring opinion, Justice Anthony Kennedy argued that because the Eighth Amendment does not require strict proportionality between crime and sentence, reviewing courts should only make intra- and interjurisdictional comparisons after a threshold finding of ‘‘gross disproportionality.’’ In Andrade, the Court adopted Kennedy’s modified proportionality test and declined to compare Andrade’s sentence to those for other offenses in California or for similar offenses in other jurisdictions. Instead, invoking the principle of deference to state legislative and judicial decision making, the Court observed that Andrade’s life sentence, which included the possibility of parole after fifty years, represented a reasonable interpretation of the Court’s proportionality standard as set forth in Rummel and Solem. Under this extremely deferential standard, ‘‘the gross proportionality principle reserves a constitutional violation for only the extraordinary case.’’

Policy Considerations

Even if three strikes provisions do not violate the Constitution, their effectiveness remains a source of heated controversy. Proponents point to plummeting violent crime rates in California following enactment of three strikes and conclude that it has achieved the goal of crime reduction. Critics, however, note that crime rates began falling before enactment of three strikes and that rates have not dropped more dramatically in California than in jurisdictions with milder Sentencing provisions. In response to critics who contend that the high cost of incarcerating recidivists places a strain on the state budget, proponents maintain that these costs are easily offset by the economic and social gains associated with crime reduction.

Apart from these practical considerations, critics of three strikes argue that it is simply unfair to punish relatively minor felonies as severely as murder, rape, or kidnapping. In response, proponents point to greater selectivity in the application of three strikes laws to only the most deserving offenders. Thus, though support for three strikes remains strong— California voters turned back an effort to repeal the law in 2004—prosecutors have indeed become more selective in applying the law, largely reserving it for violent offenders with substantial criminal records. While this approach responds to the felt need for effective responses to violent crime and the traditional commitment to proportionality, critics contend that it allows too must discretion for prosecutors and results in wide Sentencing disparities within a single jurisdiction.


References and Further Reading

  • Ardaiz, James A., California’s Three Strikes Laws: History, Expectations, Consequences, McGeorge Law Review 32 (Fall 2000): 1–36.
  • Luna, Eric, Foreword: Three Strikes in a Nutshell, Thomas Jefferson Law Review 20 (Spring 1998): 1–89.
  • Marion, Samara, Justice by Geography? A Study of San Diego County’s Three Strikes Sentencing Practices from July–December 1996, Stanford Law and Policy Review 11 (Winter 1999): 29–47.
  • Tonry, Michael. Thinking about Crime. New York: Oxford University Press, 2004.

Cases and Statutes Cited

  • Harmelin v. Michigan, 501 U.S. 957 (1991)
  • Lockyer v. Andrade, 538 U.S. 63 (2003)
  • Rummel v. Estelle, 445 U.S. 263 (1980)
  • Solem v. Helm, 463 U.S. 277 (1983)
  • Weems v. United States, 217 U.S. 349 (1910)
  • California Penal Code }} 667, 1170.12 (West 1999 & Supp. 2000)

See also Cruel and Unusual Punishment (VIII); Mandatory Minimum Sentences; Proportionality Reviews