Slate Screws Up the Explanation of California’s Three Strikes Law
A Slate article on California’s Three Strikes Law significantly misstates the impact of the law:
Why would stiffer penalties increase violent crime? To understand this seeming paradox, you first need to understand the nature of California’s three-strikes law. Not just any offense gets you a first strike. It must be a so-called “record-aggravating” offense, which includes violent crimes like assault and rape as well as serious nonviolent crimes such as burglary or drug sales to minors. But after strike one, strikes two and three can come from any felony, including minor offenses like possession of marijuana or even stealing golf clubs or videotapes. A third strike carries with it a mandatory sentence of at least 25 years in prison.
Mmmm . . . not quite.
First of all, simple assault is not a strike; assault with a deadly weapon is. And “burglary” isn’t one; residential burglary is.
But the bigger problem is the claim that “after strike one, strikes two and three can come from any felony” — especially when followed by the claim that “[a] third strike carries with it a mandatory sentence of at least 25 years in prison.” This phrasing suggests that one serious or violent felony, followed by two nonserious and nonviolent felonies, can subject a defendant to a “mandatory” 25+ year sentence. Not so.
In order to be subject to a 25-to-life sentence under the Three Strikes Law, a defendant must have at least two previous felonies that qualify as serious or violent: murder, rape, robbery, arson, kidnapping, residential burglary, assault with a deadly weapon, and the like. Then one must commit a third felony.
What’s more, even then, a 25-to-life sentence is not “mandatory.” A judge always has discretion to dismiss one or more strike priors in the interests of justice, if he reasonably concludes that the defendant falls outside the spirit of the Three Strikes Law. In Los Angeles, if the third felony is not serious or violent, judges will generally dismiss one or more strike priors. [UPDATE: Prosecutors can do this too. It’s such second nature to me, I forgot to mention it.]
There are situations where a sentence is enhanced when a second felony is not a strike — but they aren’t 25-to-life situations. If a defendant has one serious or violent felony on his record, and commits a second felony of any kind, his sentence can be doubled. Here, too, the strike prior can be stricken — and often is, in drug cases, minor theft cases, and/or where the prior is very old, to name some examples of typical situations.
The Slate article is substantially misleading and should be corrected.
Incidentally, I’m working on getting a copy of the study discussed in the article. I have a feeling it’s flawed, but you never know until you read it.
P.S. Possession of marijuana is generally a misdemeanor in California, unless it is possessed for sale. Stealing golf clubs or videotapes is generally a misdemeanor, unless the defendant has a prior theft conviction for which he received jail or prison time, or the property exceeds $400 in value. Even then, you can get a misdemeanor with a relatively clean record.
Nice post… this just got bookmarked in my “Reference” folder as I had no clue the 3-strike law was that flexible. Thank you.
Stashiu3 (460dc1) — 3/24/2008 @ 8:41 pmI never really understood the three strike law either, but I suspected it was quite a bit more complex than Slate’s superficial analysis. I also suspect there are all sorts of carve-outs and irregularities that support my belief that judges and juries should be able to impose punishments with as little legislative interference as possible, as the legislative “solutions” don’t always fit the facts in court.
Patterico, as someone who has to deal with it day to day, do you think three strikes is basically a good thing, or not? Functionally, does it make a prosecutor or judge’s life easier in terms of disposing of cases? And socially, does it serve “justice” in the abstract sense, apart from administrative burdens or benefits?
Aplomb (770d80) — 3/24/2008 @ 9:15 pmIt’s a good thing. No question in my mind.
Patterico (4bda0b) — 3/24/2008 @ 9:52 pmToo bad most of the country doesn’t have the fortitude to enact California’s 3 strikes
EricPWJohnson (d2733c) — 3/24/2008 @ 10:00 pm# strikes was passed by voters tired of the catch and release system of the liberal wussietards
krazy kagu (6c9901) — 3/25/2008 @ 5:57 amGood clarifications, fine host.
Two other notes:
1. The prosecutor can also reduce a three-strikes case; I’ve done so many times, turning 25-to-life cases into much, much less time. We do this based on the age of the strikes, the new crime, and the question of how useful it is to strike people out. I view it as a necessary part of the job of a California DA’s office to evaluate each case specifically as to whether it’s a good idea to seek 25-to-life.
2. Yeah, all those examples of felonies aren’t. If you commit 28 violent felonies, eventually get out, and possess marijuana for personal use, you get…. a $100 fine, plus penalties, which works out to not quite $500 total fine. Unless you’ve got a medical marijuana card; then you go free.
3. Dammit, Slate, call people. Plenty of people actually know how this works. Sigh.
–JRM
JRM (355c21) — 3/25/2008 @ 6:13 amJRM, why should they do that?
Don’t you know they are The Deciders?
Techie (ed20d9) — 3/25/2008 @ 9:01 amThankyou for the info. One of the main reasons I read your blog is that I learn a lot by coming here.
barsinister (3b1790) — 3/25/2008 @ 9:22 amPeriodically I read a story that goes something like this: guy gets out of jail after two strikes, stays clean for a month, then steals a slice of pizza and gets 25-to-life. The third felony can be anything?
Eric (09e4ab) — 3/25/2008 @ 2:47 pm