Instead of reducing violence, these laws have fueled mass incarceration, expanded racial disparities, and imposed life sentences for low-level offenses that bear little resemblance to the public fear that birthed them. The analysis that follows remains grounded in research, but it is no longer just a classroom exercise. It is a reflection on how policy built on fear can calcify into systemic harm when not regularly reexamined.
What Are Three Strikes Laws?
Implemented in twenty-four states in the 1990s, three strikes laws intended to clean up the streets and prevent crime through implementing harsh penalties for the worst, most violent crimes, such as rape and murder.1 Unfortunately, the road to hell is often paved with good intentions. Rather than deterring violent offenders from committing crimes and keeping people out of the criminal justice system, arcane three strikes laws create the opposite effect. Every year, strike laws actively contribute to overpopulation in United States’ prisons.2 Data readily confirms that 1990s era three strikes laws are ineffective, unfair to low level offenders and minority groups, and in dire need of reform.
How Did They Begin?
Part of a 1993 effort to get tough on crime, Washington state became the first in the U.S. mandating life imprisonment without possibility of parole for individuals convicted of their third violent offense.3 In 1994, California voters ushered in the strictest iteration of three strikes laws in the United States.4 The model proved popular; in that same year, additional states adopted mandatory sentencing increases for multiple offense incarceration.5
California’s three strikes law is unique, applying strikes toward non-violent and violent offenses alike. This policy differs from laws of other states, requiring strikable offenses be serious or violent crimes.6 Proponents of the law believed extending sentences for crimes would remove repeat offenders from society and prevent additional crimes from occurring. Under California’s three strikes law, a person with one previous violent or serious felony conviction will face higher penalties than a first-time offender; a second strike doubles the normal length sentence, and a third felony hands down a sentence of 25 years to life. These three strikes laws, in essence, double prison sentences without regard to a crime’s severity — indiscrimination between serious and non-serious crimes directly contributing to a mass incarceration problem.
Following the Data: Three Strikes Laws Are Ineffective
Since its implementation around 30 years ago, data consistently demonstrates three strikes laws as being ineffective. Although the goal of said laws aims to prevent violent crime against property and people, many studies instead find three strikes laws ineffective at reducing violent crimes such as rape, robbery, burglary, or assault. As California accounts for over 90 percent of three strikes sentencing, their data is worth examining to determine the efficacy of three strikes laws.7
A 1999 study examining cases in California compared counties strictly enforcing the three strikes laws to counties more lenient in their application; surprisingly, there was no noticeable decline in crime for strict enforcement counties when compared to counties that were more lenient. In a larger two-decade long study, researchers examined cases in 188 cities in three strikes states with populations of 100,000 or more. The data demonstrates an increase in homicide cases and no sizable reduction in crime rates.
Rather than preventing violent crime, some national studies suggest three strikes laws create a “nothing to lose” mentality. Offenders on the verge of receiving their third strike are more likely to change their modus operandi or kill witnesses to avoid capture and subsequent long-term incarceration. The very law designed to deter violence may, in some cases, be incentivizing it.
By March 2003, with nearly a decade of tough on crime policies on the books, strikes laws had failed to achieve intended crime prevention goals. Instead, America found itself housing over two million incarcerated individuals.8
A Recipe for Mass Incarceration
Three strikes laws readily contribute to overpopulation in prisons. Upon implementation of three strikes laws and enhanced penalties, California began seeing an increase in prison population and operational costs.9 Increased prison stays for non-violent or non-serious offenses accounted for 56% of strike prison population; serious and violent strike offenders comprise only 44%. This imbalance occurs as some strike laws are harsher on menial crimes such as property or drug offenses.10
The Stanford Law School Three Strikes Project has represented individuals who received life sentences for things such as stealing loose change from a vehicle, possessing small amounts of drugs, and attempting to break into a soup kitchen.11
As strike laws require decades-long sentences of offenders, often eliminating the possibility of parole, this creates a “sleeper effect” in which offenders accumulate. An offender sentenced to 25 years in 1996 would not be eligible for release until 2021; meanwhile, new offenders continue to come in. The prison population grows with no corresponding outflow. That is not incapacitation. That is warehousing.
Bias in the System
People of color make up significant numbers of three strike prisoners. Data from the California Department of Corrections and Rehabilitation reveals three strikes laws to excessively favor minority groups.
of California third-strike prisoners, despite being only 6.6% of the California state population
of second and third-strike prisoners, versus 38.2% of California’s general population
are strikers, despite comprising 39.4% of the California prison population overall
Sadly, another study found that African Americans are 13 times more likely to be imprisoned than whites under three strikes laws.7 These numbers become more problematic when examining the data for Non-Hispanic whites. Even though Non-Hispanic whites account for 39.4% of the prison population, only 24.1% of them are considered strikers (2012, as cited in Oleson, 2015).
How California Is Addressing Three Strikes Law Reform
Californians recognized the unfairness and the need for reform. Two ballot propositions attempted to address it.
In Closing
Data determines three strikes laws are unfair, disproportionately affecting minorities, and require modification. For violent offenders, the fear of prison and harsh punishment is not enough to deter commission of crimes. It more likely becomes justification to not get caught. With taxpayers footing the bill for lengthy non-violent offenders’ incarcerations, reexamining three strikes laws is more important than ever.
While California and other states are taking steps toward reform, there is more work to do. The criminal justice system must embrace rehabilitation and reentry programs to change today’s landscape. Preventing crimes, rather than incarcerating people longer when they offend, must become a cornerstone of prison reform in order to address and better control recidivism.
- Marvell, T. B., & Moody, C. E. (2001). The lethal effects of three-strikes laws. Journal of Legal Studies, 30(1), 89–106.
- Oleson, J. C. (2015). Habitual criminal legislation in New Zealand: Three years of three-strikes. Australian and New Zealand Journal of Criminology, 48(2), 277–292.
- Kovandzic, T. V., Sloan, J. J., II, & Vieraitis, L. M. (2004). “Striking out” as crime reduction policy: The impact of “Three Strikes” laws on crime rates in U.S. cities. Justice Quarterly: JQ, 21(2), 207–239. http://dx.doi.org/10.1080/07418820400095791
- Chen, E. Y. (2014). In the furtherance of justice, injustice, or both: A multilevel analysis of courtroom context and the implementation of three strikes. Justice Quarterly, 31(2), 257–286.
- Kessler, D., & Levitt, S. D. (1999). Using sentence enhancements to distinguish between deterrence and incapacitation. Journal of Law & Economics, 42(1 Part 2), 343–364.
- Datta, A. (2017). California’s three strikes law revisited: Assessing the long-term effects of the law. Atlantic Economic Journal, 45(2), 225–249. https://doi.org/10.1007/s11293-017-9544-8
- Vitiello, M. (2002, April 1). Three strikes laws: A real or imagined deterrent to crime? American Bar Association. americanbar.org →
- Boyd, R. (2014). Narratives of sacrificial expulsion in the Supreme Court’s affirmation of California’s “three strikes and you’re out” law. Legal Communication & Rhetoric: JALWD, 11, 83–108.
- Brown, B., & Jolivette, G. (2005, October). A primer: Three strikes — The impact after more than a decade. lao.ca.gov →
- Travis, J., Western, B., & Redburn, S. (2014). The growth of incarceration in the United States: Exploring causes and consequences. The National Academies Press. https://doi.org/10.17226/18613
- Stanford Law School. Three strikes basics. law.stanford.edu →
- Mills, D., & Romano, M. (2013). The passage and implementation of the three strikes reform act of 2012 (Proposition 36). Federal Sentencing Reporter, 25(4), 265–270.
- Karch, A., & Cravens, M. (2014). Rapid diffusion and policy reform: The adoption and modification of three strikes laws. State Politics & Policy Quarterly, 14(4), 461–491. http://dx.doi.org/10.1177/1532440014561867
- Driscoll, S., & Romano, M. (2014, December 15). Three strikes: An update after proposition reform sentencing for nonviolent offenders. Stanford Law School. law.stanford.edu →
Krikorian, G. (1996, March 5). More Blacks imprisoned under “3 strikes,” study says. Los Angeles Times. latimes.com →
