The discretion exercised by judges when discussing the Three Strikes Law is a double-edged sword. The law applies mandatory sentencing to individuals who commit multiple felonies and imposes a 25-years to life prison sentence to those who commit a third offense after receiving two prior felony convictions. However, the adjudicator may offer some leniency to offenders by dismissing a prior strike conviction or lessening a prior felony offense to a misdemeanor charge. This acts as a more justifiable solution for offenders who deserve a second chance. Reductions are rare occurrences, however, so as not to negate the firm intentions of the law. Even so, many protestors have the preconceived notion that the lack of leniency afforded to those convicted criminals poses a threat to public safety because of the drastic actions taken by criminals to avoid capture. The limited discretion exercised by judges has been an effective approach in depleting career criminals from the streets, but it has harmed law enforcement officers and victims involved with potential three-strike offenders.
The mandatory sentencing was first questioned in the 1996 landmark case of People Vs. Superior Court (Romero). This case set the precedent that allows judges to exercise judicial discretion in all cases to dismiss any and all prior convictions of an offender. To maintain the honesty of the courtroom, there are major limitations to this use of judgment. Abuse of this discretion occurs if a prior conviction is dismissed to accommodate judicial convenience or the increasing court congestion, because of a guilty plea, or personal dislike of the Three Strikes Law (Otero & LaBahn, 2004). Proper application of this discretionary power requires the trial court to consider “the constitutional rights of the defendant, and the interest of society represented by the people” (People Vs. Orin, 1975). The complete dismissal of convictions must have a valid reason to occur, which maintains the integrity of the Three Strikes Law and forces recognition of the law by those who choose to lead a life of crime. There are few opportunities for judges to dismiss a felony strike previously accounted for because of the enforcements set in place.
Along with the ability to dismiss a conviction, judges have the authority to reduce a felony or a wobbler (a crime that can be sentenced as a misdemeanor or felony) to a misdemeanor. By making this reduction, the Three Strikes Law would not be applicable or there would be a decrease in sentencing because the law only considers felony convictions as a strike. The process of reducing a felony to a misdemeanor has similar restrictions to a conviction dismissal. Judicial review occurs in any case, but there must also be a thorough investigation given to the criminal history of the defendant, along with all relevant information pertaining to the case. It must be a fact-bound inquiry, with high consideration given to public safety; one of the main features of the law (Otero & LaBahn, 2004). The mandatory requirements involved in dismissal of a conviction combined with the procedures for reducing a felony to a misdemeanor limits the judge’s ability to use discretion. This is what makes the Three Strikes Law more effective. It grants justices the ability to use their own discretion, but not to their full power because doing so would only promote further dilution of the affirmation of the law due to the questionable outcomes for each case. Without the Three Strikes Law there would be uncertainty in sentencing practices and instead of increasing deterrence mechanisms and public safety, we would have a game of Russian Roulette for criminals to see who could escape the law.
While the limited discretionary powers judges are given allows them the ability to eliminate or reduce strike charges and enhances the general public’s safety by keeping criminals off the street, it does not do the same for police officers, victims, and witnesses. In fact, two separate studies have shown there is an increase in officer homicide and victim/witness homicide with considerable data implying it is due to a fear of the increased penalties of third strike eligible criminals. The certainty of punishment creates irrational actions committed by those to avoid the consequences. One study took data from over 50 states over a 29 years time span. It concluded that the Three Strikes Law resulted in a 10-12% increase of officer/victim homicides in the short-run by those individuals who are three strikes eligible, and an even bigger increase of 23-29% in the long run (Marvell and Moody, 2001). Although officer homicides are rare, these numbers are still statistically significant and show there is a correlation between the Three Strikes Law and pubic safety. A second study that was conducted during a 19-year span, took multiple research surveys over a long period of time from 188 U.S. cities with populations of over 100,000. The conclusion showed in cities implementing the Three Strikes Law that there was a short-term homicide rate increase of 13-14% with a long-term increase of 16-24% (Kovandzic et al., 2002). These two studies had paralleling results even though they were both conducted in different manners and took information from separate sources. These similarities provide a stable argument further reinforcing the unintended consequences of homicide are affiliated with the Three Strikes Law.
Although the studies above provide a correlation between the Three Strikes Law and homicides, other studies conducted within prison walls have shed light on the reasoning for these increased murder rates. A study presented in an earlier blog revealed that over 50% of individuals incarcerated stated they would kill someone if it meant they would be more likely to get away with the crime they committed (Schafer, 1999). An online interview with Former FBI Agent Gary Morley showed similar information, as he stated that a majority percentage of incarcerated individuals claimed they would be more likely to kill their victims to avoid a life sentence. He also stated it is especially dangerous for police officers pulling over individuals who are facing third strikes because those individuals are a large percentage of subjects who have killed officers during routine traffic stops (Morley, 2011). The mandatory sentencing and lack of discretion allowed to judges sets the stage for these unintentional consequences that decreases public safety of those officers and individuals involved with these criminals.
The statistically significant increase in homicides and the effectiveness of this law in keeping career criminals off the street are both determined by the lack of discretion given to judges in the courtroom. The more consistent the punishment and consequences, the less likely individuals will engage in a life of crime and more career criminals will be serving time for longer periods rather than being released back into society to create more havoc within communities. However, when the same concept of mandatory punishment applies, statistics and surveys show more homicides take place because of the fear of increased obligatory punishment and perceived consequences. The Three Strikes Law has a positive effect on the community and increasing public safety, but it is followed by an unintentional negative effect of increased homicide rates and a decrease in public and officer safety due to its limitation of discretion and mandatory sentencing,
Johnson, J., & Saint-German, M. (2005). Officer down: implications of three strikes for
public safety. Criminal Justice Policy Review, vol. 16 no. 4, 443-460.
Kovandzic, Tomislav V.; Sloan III, John, J.; & Viertaitis, Lynne M. (2002). Unintended
consequences pf politically popular sentencing policy: The homicide promoting effects “Three Strikes” In U.S. Cities (1980-1999). Criminology & Public Policy, 1, 399-424.
Morley, Gary (2011). Oct 14, 2011. Online interview.
Otero, G & LaBahn, D. (2004). Prosecutors’ perspective on California’s three strike law-
a 10-year retrospective. California District Attorneys Association. 1-62.
People Vs. Orin (1975) 13 Cal.3d 937, 945
Schaefer, J (1999). The deterrent effect of three strikes law. FBI Law Enforcement Bulletin.
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