Three Strikes Laws and Repeat Offenders

Jing-wei Chen, Tung-ho Chen, and Jiunn-cherng Chiou

CentralPoliceUniversity, Chinese Taipei

Abstract

The criminal law in Chinese Taipei was revised in January, 2005. One of the important changes this time was “three strikes and you’re out.” Three strikes laws typically invoke an extended sentence (often life in prison), usually following three convictions of sufficiently severe crimes.

This paper tries to explore the advantage and disadvantage that can be expected by Chinese Taipei’s public after three strikes laws are taken. On this paper, the development of American three strikes laws is introduced first. Second, philosophies of punishment are addressed. Third, the related issues of three strikes laws in Chinese Taipei are presented. Last section is the conclusion.

Keywords

Three strikes laws; deterrence; incarceration; mandatory sentencing

I Introduction

II The development of American three strikes laws

III The philosophies of punishment

IV The related issues of three strikes laws in Chinese Taipei

V Conclusion

I INTRODUCTION

This paper examines “three strikes and you’re out” law on four sections and tries to explore the advantage and disadvantage that can be expected by Chinese Taipei’s public after three strikes laws are taken. On this paper, the development of American three strikes laws is introduced first. Second, philosophies of punishment are addressed. Third, the related issues of three strikes laws in Chinese Taipei are presented. Last section is the conclusion.

II THE DEVELOPMENT OF AMERICAN THREE STRIKES LAWS

The “three strikes and you’re out” movement is the most recent anti-crime policy in the United States. Twenty-four states and American Congress have passed “three strikes and you’re out” law since 1994. This trend was fueled by the death of Diane Ballasiotes, who was murdered by a convicted rapist who had been released from prison in WashingtonState. Shortly thereafter, Polly Klass was kidnapped and murdered by a released inmate who also had an extensive prior record of violence in CaliforniaState. The decisions made by the courts or correctional officers to release violent and repeat offenders from jail and prison stimulated the public’s fear of crime. Thus, the politicians followed the voters’ will and eliminated the judge’s discretion. These events affected not only with Washington and California voters, but also with the public throughout the United States.

In terms of what constitutes a strike, most states include violent felonies such as murder, rape, robbery, arson, and assaults. Some states include other nonviolent crimes, such as:

○ the sale of drugs in Indiana;

○ any drug offense punishable by imprisonment for more than five years in Louisiana;

○ the sale of drugs to minors, burglary, and weapons possession in California;

○ escape in Florida;

○ treason in Washington; and

○ embezzlement and bribery in South Carolina (Austin et al., 2000).

In addition, there are variations in the number of strikes needed to be out. For example, Arkansas, California, Georgia, Kansas, Montana, Pennsylvania, South Carolina, and Tennessee bring about some sentence enhancement with two strikes.

Do the new laws close the loophole of the pre-existing sentencing provisions? To understand the new three strikes laws, one has to consider how the repeat violent offenders are treated prior to the enactment of three strikes laws. Table 1 (Austin et al., 2000) illustrates the variation of the new laws and the pre-existing sentencing provisions. In the United States, three strikes laws are enacted differently among repeat offenders. For example, in WashingtonState, 115 offenders were admitted to the WashingtonState prison system on the third strike since 1993. (Washington Department of Corrections.) However, nearly 40,000 offenders are sentenced to prison under the three strikes laws in California.

TABLE 1

CPMPARISON OF NEW STRIKE LAWS WITH PRE-EXISTING SENTENCING PROVISION

In most states, the three strikes laws are narrow, focusing a specific group of particularly repeat offenders. In fact, few defendants have been sentenced under such laws. However, California’s three strikes laws are quite broad and different from most other states. In California, when the defendant has only one prior conviction for a serious crime, sentence enhancements can be applied. In addition, the current felony offense that triggers the enhancements need not be serious. Therefore, tens of thousands of defendants have been sentenced under its three strikes laws in California. Obviously, the purpose of this criminal policy tries to reduce serious crime by incapacitating repeat offenders and by deterring others from becoming repeat offenders.

III THE PHILOSOPHIES OF PUNISHMENT

Philosophies of punishment mainly include two models: moral and utilitarian models. Moral model emphasizes that punishment is designed to reform the offender, rather than punish a criminal act. The advocate of this model argues that the causes of behavior are beyond the individual’s control. Biology, environment, and economic status, etc. are causes of crime. Efforts of moral model hope that offenders can be converted into law-abiding citizens. Educational, scientific, medical, and religious principles are taken to reach this goal. The philosophy of moral model is: offenders commit crimes because of some kind of mental, spiritual, or vocational inadequacy. If the inadequacy can be corrected, criminal problem can be resolved. People who advocate this philosophy take a deterministic view of the causes of crime. They believe that if the crime is the result of society’s inequalities, society has a moral responsibility to help offenders to live a law-abiding life. On the other hand, utilitarian model pursues the maximum benefits for the most people. This model emphasizes spending as little as possible on criminal justice. Government should act to bring the greatest good to the most citizens. The methods include deterrence, incapacitation, retribution, etc.

The various arguments for the use of punishment change with the social and political background. The amount of fear created by crime is also a critical factor in the public concern. Scholars debate whether criminals are products of their genes or their environments. Those who believe criminals are born advocate incarceration as a means of incapacitation, while those who believe criminals are made favor rehabilitation. This controversy of whether the purpose of incarceration is for rehabilitation or incapacitation existed for a long time and will continue in the future.

Because the cause of crime is very complex in the real world, no one policy can be effective to all kinds of crime. The theoretical justification for three strikes laws is grounded in the punitive ideologies of deterrence. Obviously, it is a utilitarian model rather than moral model of punishment philosophy. Deterrence is the main strategy of the utilitarian model and can be divided into two categories: general deterrence and specific deterrence. General deterrence occurs when potential offenders see the consequences of other people’s actions and decide not to engage in the same behavior. It is achieved by delivering swift, certain, and severe punishment to offenders in order to suppress the criminal tendencies of potential criminals. When the offender knows that the next conviction will result in life imprisonment, he or she should weigh the benefit of committing another offense or live a crime free life to avoid such punishment. In order for this sequence of events to occur, two important conditions must exist: (1) offenders must know the new sentencing policy; and (2) offenders believe there is a high probability of arrest and conviction should one’s criminal activities persist. On the other hand, specific deterrence is triggered when offenders realize the consequences of their own past behavior and decide not to commit the same acts. According to Schafer (1999), when offenders view the law in general terms, no deterrent effect exists. This means when the question asks if offenders think the three strikes laws will stop them or someone else from committing a serious or violent crime, most offenders say no. These findings suggest that when offenders are confronted with the severity of their punishment in specific, personal terms, the law has a deterrent effect, but if the law is defined in general terms, the deterrent effect wanes.

IV THE RELATED ISSUES OF THREE STRIKES LAWS IN CHINESE TAIPEI

The purpose of revising Chinese Taipei’s criminal law was to conduct “hard criminal policy and soft criminal policy” in January 2005. This means criminal justice officials take hard criminal policy against those who commit grave crimes in order to fight against serious crimes, especially for repeat offenders. On the other hand, criminal justice officials take soft criminal policy toward those who commit minor crimes and they do not have to enter normal criminal justice procedures. Soft criminal policy is accepted by the criminal law’s scholars and the public; however, hard criminal policy causes a lot of debate in Chinese Taipei. Therefore, this paper’s focus is on hard criminal policy (i.e. three strikes laws, mandatory sentencing, etc.).

At first glance, three strikes laws lead to more rapid decreases in crime or to more rapid increases in person’s incarceration. Building on the deterrence principle, three strikes laws are often seen as the answer to crime problems. Such laws attempt to reduce crime either by incarcerating repeat offenders or deterring potential offenders from committing future crimes. However, will the three strikes laws deter crime? Or, will offenders become more likely to kill victims, witnesses, and police officers to avoid a life sentence? These questions represent important concerns as the cost of implementing mandatory sentencing law may include human lives in addition to monetary resources. Proponents of this law state that this law deters and incapacitates high-rate recidivist offenders and results in lower crime rates. Under the sentencing schemes, high-level offenders measured both by the type and the number of prior convictions will be specifically targeted for incarceration (Walker, 2001; Zimring, 2001). In addition, three strikes laws reduce judicial sentencing discretion; therefore, the certainty of punishment will be increased while enhancing the term of imprisonment. When the recidivists’ sentences are enhanced, the opportunity for parole boards to release dangerous offenders back into the society will be reduced. Then, the crime rate will go down because offenders will be deterred or incapacitated.

Before Chinese Taipei takes three strikes laws, two questions must be evaluated. First, whether three strikes laws do in fact reduce the serious personal and property crime? Second, what are the negative effects caused by three strikes laws? The following researches are reviewed to answer these questions.

Dickey and Hollenhorst’s (1998) assessment reveals that despite claims by policymakers that the laws are important crime fighting tool, most states in the U.S. have not applied three strikes legislation extensively. By the mid-year of 1998, 17 states had between 0 and 38 offenders sentenced under three strike provisions. Only three states had slightly more than 100 offenders serving three strike sentences. The only two states that have applied the legislation with any consistency are California and Georgia. In the mid-year of 1998, Georgia had sentenced almost 2,000 offenders under one and two strikes provisions, and California more than 40,000 under two and three strikes provisions. (Kovandzic et al., 2004) The deterrent effect of three strikes laws can be measured best by examining the law’s impact on crime in California, which aggressively prosecutes offenders under the provisions of the state’s three strikes law. The California three strikes laws differ from most others in two important ways: sentence enhancement apply when the defendant has only one prior conviction for a serious crime, and the current felony offense that triggers the enhancements need not be serious. Therefore, tens of thousand of defendants have been sentenced under its three strikes laws.

Males and Macallair (1999) tested the hypothesis that California counties that enforced the law more frequently will see greater reductions in crime rate. They collected FBI index offense arrest statistics for the state’s 12 largest counties and compared those data with 3 years after the law took effect (1995-1997) and 3 years’ prior data (1991-1993) in the same counties. The findings are county crime data for post-law years failed to support the presumed crime reduction promised by the law, either through selective incapacitation or deterrence. Counties invoke the law at higher rates did not experience the greatest decrease in crime. Austin et al. (2000) indicated that “There does not appear to be an impact on crime rates. Even in California where the law was expected to have a major impact it appears that all of the projections were in error.” Zimring et al. (2001) used various data to test the potential deterrent and incapacitative effects of the law. The findings are: lower crime rates in 1994-1995 are spread among both target (second and third strike offenders) and nontargeted populations (first strike offenders). The conclusion is: short-term felony crime reduction in the state as a result of the three strikes law is between 0% and 2%. Greenwood et al. (2002) found states with three strikes laws do not appear to have experienced faster declines in crime since those laws were implemented than have states without such laws. Neither have three strikes states experienced a greater increase in incarceration rates. According to Kovandzic et al. (2004), no credible statistical evidence was found that the passage of three strikes laws reduced potential criminals or incapacitating repeat offenders. Further, no evidence of an immediate decrease in crime rates and homicide rates were actually positively associated with the passage of strikes laws.

The three strikes laws have some negative effects including the increase of homicide rate, the cost, the fairness of law, and the politician’s involvement. The survey of Schafer (1999) found that 54 percent of the offenders indicated that they will kill or probably will kill witnesses or law enforcement officers to avoid a life sentence. This figure rises to 62 percent among offenders who claimed gang membership. These findings serve as a warning to all law enforcement officers that when offenders, especially gang members, have two or more strikes, the likelihood of violence increases substantially. Marvell and Moody (2001) used state panel data from 1970 to 1998 to test changes in crime rates in three strikes states compared to non-three strikes states. The findings are states with the laws increase homicide rate by 10% to 12% in the short term, and 23% to 29% in the long term. Thus, offenders facing the possibility of life in prison for a third strike may be more likely to kill witnesses and avoid to be identified. Moreover, three strikes laws do not reduce rates of rape, robbery, assault, burglary, larceny, or auto theft. Kovandzic et al. (2002) use panel data from 188 cities for the 1980-1999 periods and have the similar finding. Compared with cities in states without the three strikes laws, cities in states with three strikes laws experienced a 13% to 14% increase in homicide rates in the short term and a 16% to 24% increase in the long term.

Three strikes laws will increase criminal justice cost, mostly through construction and operation of more prison cells. Criminals’ careers are strongly impacted by age according to life course theory. As noted by the national panel on Criminal Careers: From the perspective of incapacitation, prison capacity is used inefficiently if offenders are imprisoned beyond the time their criminal activity would have terminated. This means the old prisoners strains criminal justice system resources while presenting little public safety threat. Therefore, it is reasonable to ask whether three strikes laws, which mandate very long sentences, may result in incarceration of offenders well after they ceased to be serious risks (Blumstein et al., 1986). Besides, the aging inmates will consume a lot of medical resources. When the government increases the budget of criminal justice system, the other items’ budget（e.g. social welfare, education, etc.）will be cut.

How often do prosecutors charge offenders under the three strikes laws? There is no correct answer on this question because some judges take the previous law rather than three strikes laws. It means repeat offender laws do not ensure their uniform application and criminal justice officials can exercise their discretion to avoid the application of a law they consider unduly harsh (Rodriguez, 2003). When some judges follow the letter of the law more strictly than others, three strikes laws lose the fairness of law.

The politician’s involvement on criminal justice system is another important issue. Politicians use mandatory sentencing legislation to enhance their standing in the eyes of the public. Politicians appear to assume that the public is strongly supportive of these laws, though scientifically valid survey is never cited to support this assumption (Roberts, 2003). The evidence for widespread public support is far from compelling. According to Applegate et al. (1996), when respondents are given a simple question with little detail and no context, overwhelming majority (88%) express their support for three strikes laws. Once given specific cases to consider, the percentage of respondents who endorsed the three strikes sentence diminished. In fact, only 17% of the sample favored the imposition of this sentence on the offenders in the study. Thus, the public appears to be more concerned with desert-based sentencing, which emphasizes proportional punishments. When a court’s ability to impose a proportional sentence is destroyed, mandatory minima can violate the principle of proportionality. This situation is likely to undermine, not enhance, public confidence in the criminal justice system. Three strikes laws may be effective to certain kinds of crime, but not to all the crime. For the politicians, it is not important whether this law can control crime. Their concern is whether this policy can get the voters’ support.

V CONCLUSION

Twenty-four years ago, Washington’s Sentencing Reform Act of 1981 was designed to ensure the punishments for criminal offenses are proportionate to the seriousness of the offense and the offender’s criminal history (Revised Code of Washington 9.94A). In 1993, Washington’s Sentencing Reform Act was amended to define a new type of offense termed “most serious offense.” According to this amendment, third-time most serious offenders will be sentenced to life imprisonment without the possibility of parole. This change responded to the public’s demand. However, it damages the principle of proportionality. In fact, three strikes laws are a symbolic legal terms rather than an effective strategy to control crime. Policymakers should seriously consider amending this mandatory sentencing law.

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