Three Strikes Law - A General Summary

California’s 3-Strikes and You’re Out Law went into effect on March 7, 1994. Its purpose is to dramatically increase punishment for persons convicted of a felony who have previously been convicted of one or more "serious" or "violent" felonies. A "serious" or "violent" felony prior is commonly knows as a "strike" prior.

A felony is a crime punishable by a state prison (as opposed to county jail) sentence. Felonies run the range from petty theft with a prior and possession of small quantities of drugs through kidnapping, rape, robbery, and murder. Any new felony, regardless of how minor, may be punished under the 3-Strikes law if the defendant has one or more "serious" or "violent" felony priors.

They are defined in Penal Code sections 667.5(c) and 1192.7(c). They include: residential burglary, robbery, kidnapping, murder, most sex offenses like rape and child molestation, any offense in which a weapon was personally used whether or not anyone was injured, any offense in which great bodily injury was inflicted, arson, crimes involving explosive devices, or attempts to commit any of those offenses.

A defendant who is convicted of any new felony who has one "strike" prior (known as a second striker) must go to prison (i.e., cannot be sent to a rehab facility or placed on probation) for twice the sentence otherwise prescribed for the new offense. Additionally, he must serve 80% of the sentence imposed whereas non-strike prisoners generally get between on-third and one-half off of the sentence imposed for good behavior and working while in prison.

A defendant with two or more "strike" priors (a third striker) faces a minimum of 25-years-to-life in prison. He earns no time off for good behavior or working. After serving the determinant minimum amount of time (25-years on a 25-to-life sentence) he is then eligible for, but not guaranteed, parole. Whether and when an eligible life prisoner (prisoners serving life-without-parole sentences for murder are never eligible for parole) is paroled is up to the Board of Prison Terms (BPT). The BPT is made up of members appointed by the Governor and tend to be very conservative about paroling eligible life inmates. Since no 3-Strike life prisoner has become eligible for parole and none will until 2019, no one knows how the BPT will deal with 3-Strike inmates.

In certain circumstance where the sentencing court finds that a second or third strike defendant falls outside the "spirit" of the 3-Strikes Law, the court may, either on motion of the prosecutor or on the court’s own motion, strike or dismiss one or more "strike" priors. This is done pursuant to the power vested in the courts since 1860 to dismiss all or part of an action for good cause and in furtherance of justice. The court must state on the record and include in the court minutes the facts which the court finds justify dismissing the prior. A decision to strike or dismiss a "strike" prior is appealable by the prosecution and reviewable by the Court of Appeal and the Supreme Court. The San Diego Public Defender’s Office is proud to have been the law firm which established this rule of law in the California Supreme Court in the first 3-Strikes case to be decided by the Supreme Court. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

Generally, sentencing judges will strike or dismiss a prior only when it is old and the new offense is minor and the defendant has a non-violent history. It is extremely rare if not unheard of for a court to strike or dismiss a prior when the new offense is also serious or violent. Even though the court can strike priors, California’s prisons still receive more drug offenders sentenced as second or third strikers than any other class of crime.

Of course, not everyone thinks the 3-Strikes law is unfair. More than 60% of the voters who voted (did you vote?) voted for 3-Strikes. However, a lot of people who voted for 3-Strikes were not aware of what it really means and does. This is not surprising since it is very poorly drafted, very long, and very technical. The campaign literature in support of 3-Strikes talked about putting repeat rapists, robbers, and murderers away for a long time. It didn’t talk about putting petty thieves and drug users away for 25-years-to-life. As a result of the realization by some that 3-Strikes is much harsher than they originally thought and that it costs a whole lot of money ($20+ thousand/year) to keep people in prison, certain members of the California Legislature are starting to rethink 3-Strikes to a certain extent. There have been proposals to limit its application to cases where the new offense is a "serious" or "violent" crime. No legislation has yet passed modifying 3-Strikes. It will be very difficult to modify it also, since it take a 2/3 vote of the Legislature to change 3-Strikes or another initiative measure passed by the voters. If you are interested in what is pending in the California Legislature on this or any other issue, you will find the State Senate and State Assembly web sites very interesting, informative, and useful.