Three Strikes & You’re Out: California Law and Crime

Evaluation of the issues and resolutions of the questions surrounds the validity of the “three strikes” laws as applied to criminals.

“A far greater factor is the deterrent effect of swift and certain consequences: swift arrest, prompt trial, certain penalty and – at some point – finality of judgment.”
The honorable former Chief Justice Warren Burger

In 2003, the United States Supreme Court, on a writ of certiorari, reversed a Federal Appeals Court case that dealt with California’s application of the “three strikes” law. The three strikes law, much like the Rockefeller drug laws of New York, removes discretion from judges and juries responsible for sentencing convicted criminals. The law requires that criminals who have been convicted of a felony three times will be subjected to strict punishment on the third felony or “strike.” California Penal Code governs that three felony crimes demand a mandatory 25-year to life sentence in prison for each strike on the third and subsequent strikes.

Though statistics have proven a reduction in crime since the enactment of the “three strikes” law, some lawyers are questioning the validity of the required sentencing against the eighth amendment that states cruel and unusual punishment shall not be inflicted. In the eyes of some, this means that the punishment of 25 years to life is excessive punishment for crimes such as unarmed theft. In addition to questions surrounding the Eighth Amendment law other issues with the “three strikes” law include consecutive sentencing, strike priors and enhancements. These issues were addressed by the Supreme Court in their opinion in Lockyer v. Andrade, 538 U.S. 63; 123 S. Ct.1166; 155 L. Ed 2d 122; (2003).

The case of Lockyer v. Andrade raised question pertaining to the ruling of the United States Court of Appeals for the Ninth Circuit. The petitioner felt that the circuit court erred in reversing the California Court of Appeal’s decision sentencing Leandro Andrade to two consecutive prison terms of 25 years to life as punishment as governed by the “third strike” conviction rule. The lower court reversed the decision stating that the punishment was “grossly disproportionate to his misdemeanor theft of nine video tapes.” Mr. Andrade committed a crime that qualified as a felony under California law, and while awaiting the due process of law, committed another crime of the same nature. These two crimes were both contenders for felony strikes. When weighing the crime against the punishment of two 25 years to life sentences, the questions before the court asks if the long-term sentences may violate cruel and unusual based on the crimes committed.

Because the constitution is not a living document, as the honorable Justice Antonin Scalia has stated, we cannot read rules of application of the Eighth Amendment based on the issues of today and from something, the framers did not write. Nowhere in the constitution is there an outline of what length a sentence can and cannot be imposed for certain crimes. The constitution merely states what forms of punishment are acceptable to the framers and what are not.

As Justice O’Connor alluded to in her writing of the Supreme Court opinion Andrade, the Court exhibits a lack of clarity when deciding what cases violate the eighth amendment “cruel and unusual punishment” clause. Yet one can hardly expect the court, whose purpose is to interpret the constitution and not the legislation (writing) of laws to prepare a grid of sorts, showing us which crimes deserve a certain punishment length before crossing the threshold of cruel and unusual. One can hardly argue that while the courts must continue to rely on cases of precedent as they should, for consistency, predictability, and accountability, they cannot foresee each crime measured against all possible aggravating and mitigating circumstances, and have predetermined rule for the individual offenders’ punishment while knowing the black and white line defining cruel and unusual. The court can make educated interpretations of the constitution and they may not read what is not contained in a dead document.

The California Penal Code, Section 667(c) (6), governs mandatory, consecutive terms for multiple felonies as long as the felonies were not committed on the same occasion and not arising from the same set of operative facts. The term “same occasion” in section 654 of California Penal Code is based in the Neal rule (Neal v. California (1960) 55 Cal2d 11). The application of consecutive sentences to be served by Mr. Andrade does not violate Penal Code Section 667.

The California Penal Code also addresses the issue of what can constitute a third strike in Section 667 (e) (2) (A). Here the law states that any felony can qualify for a third strike, allowing for the deemed sentence of 25 years to life. (Please note that the first two felonies eligible to be applied to the “three strikes” laws have more restrictions in their qualification of a “strike”.)
California law allows for the prosecutors discretion in charging a petty theft with a prior as a misdemeanor or felony. The issue of enhancement in Andrade was addressed at the trial court level where the motion to reduce offences to misdemeanors was denied.

The Supreme Court has ruled that the “three strikes you’re out” law does not violate the Eight Amendment provision of not enforcing cruel and unusual punishment. The Court has stated in the majority opinion that the application of the lower courts sentencing based on the laws were properly applied in Andrade.

The issues of prior convictions and enhancements was addressed and interpreted properly. For someone such and Andrade who obviously is driven by the need for heroine (advocated by the selling of stolen goods for which he was arrested) with the audacity to offend immediately following the first charges against him without waiting for due process of law, the sentence was appropriate. The threat of punishment is not enough to deter probable criminals. In order to send the message to society that the justice system and society will no longer endure their abuse as criminals, we must us guaranteed, swift force and show consistency.

Society seems concerned about the treatment of criminals yet no one seems concerned with the punishment society must endure because of criminals. As crime runs ramped, our American freedoms and privacy continue to dwindle as well as our safety from crime and criminals. New laws, security, and surveillance continue to take away the privacy of everyone. We must ask ourselves, how many times are we going to give someone a chance to conform to a life without crime? There is no reason to ever break a law leading to criminal conviction, let alone multiple offences. Why continue to let these people have another chance when there is no reason for the criminal acts in the first place?

The “three strikes” laws may seem unjust when someone steals video tapes and is sent to prison for fifty years, but the person committing the crime knew the law and had the option to walk away from the crime, which they chose not to do in Andrade. How many more times do offenders need to do this before the law says “enough”? How many times must someone rape or kill before they are stopped? These persons obviously cannot live civilly in society while conforming to our laws and must pay the consequences of their crime.

Consistent application of strong laws and punishments has proven to lower crime rates since the enacting of the “three strike” laws. We need to continue to enforce consistently and refrain from the “slap on the wrist” punishment. If the idea of prison is not a deterrent because of plea bargaining and early release, we should make the consequences tougher and keep the prospective criminal out of the system before he or she enters.

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