Three Strike Laws: Their Constitutionality and Disparate Impact

Three strike laws dramatically increase prison sentences for persons convicted of two or more serious or violent felonies. Premised on enhancing criminal punishment for repeat, violent offenders, thereby increasing public safety through incapacitation and deterrence, these laws gained traction in the 1980s and 1990s when many states were adopting tough-on-crime approaches. More than half the people sentenced under three strikes laws, however, are serving time for nonviolent crimes.

California enacted its “three strikes, you’re out” law in 1994, in response to public outrage over the murder of Polly Klaas. The law imposed an indeterminate life sentence on any person convicted of a felony who had previously been convicted of two or more serious or violent felonies. Initially, any felony could serve as the final, triggering offense. In 2012, proposition 36 amended the law to require that the third strike be a violent felony.

The United States Supreme Court considered the constitutionality of California’s three strikes law in Ewing v. California (2003). There, Gary Ewing challenged his sentence of 25 years to life in prison on the ground that California’s three strikes law, as applied to him, violated the Eighth Amendment’s prohibition against “cruel and unusual” punishments. Ewing was on parole from a nine-year prison term in 1999 when he was arrested for stealing three golf clubs and charged with grand theft. Ewing had four prior serious convictions: three burglaries and one robbery, all of which were committed prior to the enactment of California’s three strikes law. 

Ewing argued that his sentence was cruel and unusual because the prison term imposed was disproportionate to the shoplifting offense he committed. This argument was not entirely novel. The Court previously considered similar proportionality arguments in the context of the Eighth Amendment in its 5-4 decision in Solem v. Helm (1983) and its plurality opinion in Harmelin v. Michigan (1991). In Solem, the Court held that the Eighth Amendment prohibits sentences that are disproportionate to the crimes committed. There, the Court struck down a life sentence without the possibility of parole imposed under a state recidivist statute upon a person convicted of writing a check from a fictitious account (his seventh violation). The Court applied a three-factor test to determine that Helm’s sentence was disproportionate: (1) the gravity of the offense versus the harshness of the punishment; (2) sentencing in the same jurisdiction; and (3) sentencing in other jurisdictions. Eight years later, in Harmelin, the Court limited the Solem proportionality test to death penalty cases only and noted that “strict proportionality” is not required in sentencing, as long as the sentence is not extreme or “grossly disproportionate” to the offense committed. 

Against this backdrop, the Court denied Ewing’s “cruel and unusual” claim, thus validating the three strike law. In a plurality opinion authored by Justice O’Connor, the Court stated that although the theft of three golf clubs is relatively minor, “Ewing’s sentence is justified . . . and amply supported by his own long, serious criminal history.” Justice Scalia wrote a separate concurring opinion to reiterate his continued opposition to any sort of Eighth Amendment proportionality principle. Justice Thomas concurred separately because, although he agreed with the plurality’s holding and with Justice Scalia’s concurrence, he did not believe that Solem was good law. Justices Souter, Stevens, Ginsberg, and Breyer all dissented. 

Though the plurality in Ewing discussed California’s interest in public safety and deterring repeat offenders, studies show tough-on-crime policies, such as three strike laws, do not work to effectively deter criminal activity. Rather, these laws lead to exceptionally high incarceration costs without lowering rates of recidivism. Though laws of this sort were originally enacted with the advertised intent to promote public safety by removing violent offenders from society, many defendants still languish behind bars for committing nonviolent offenses—despite more recent efforts to narrow what qualifies as a third strike both at the state and federal level. 

In addition to ineffectiveness, these types of laws disparately impact communities that are introduced to the legal system at disproportionate rates—Black men, statistically, are most impacted. Black men are more likely to be arrested and charged, particularly with felonies, than their white peers. Further, upon release, Black men are statistically more likely to experience factors leading to recidivism. Black men have the highest rates of recidivism in the United States; thus, three strike laws affect them at disproportionate rates.

This overview merely scratches the surface of one criminal sentencing tool used to perpetuate oppression and extreme class divides. “Three strikes” and similar repeat offender laws are only one facet of criminal sentencing that leads to disparate outcomes for historically disenfranchised people. People in these communities also disproportionately suffer from mandatory minimums, sentencing guidelines, and disparities in drug offenses. Resources spent on further increasing mass incarceration should instead be reinvested in underserved communities.

L. Moose

Further Readings:

Polly Klaas Was Our Sister: We don’t Want Unjust Laws to be Her Legacy 

The Story of Ewing v. California: Three Strike Laws and the Limits of the Eighth Amendment Proportionality Review

10 Reasons to Oppose “3 Strikes, You’re Out”

The History Behind Mandatory Minimums


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