|How does the 3-Strikes law
California’s 3-Strikes and You’re Out Law
went into effect on March 7, 1994. Its purpose
is to dramatically increase punishment for
persons convicted of a felony who have
previously been convicted of one or more
"serious" or "violent"
felonies. A "serious" or
"violent" felony prior is commonly
knows as a "strike" prior.
|What is a felony?
A felony is a crime punishable by a state
prison (as opposed to county jail) sentence.
Felonies run the range from petty theft with a
prior and possession of small quantities of
drugs through kidnapping, rape, robbery, and
murder. Any new felony, regardless of how
minor, may be punished under the 3-Strikes law
if the defendant has one or more
"serious" or "violent"
"serious" or "violent"
felonies (strike priors)?
They are defined in Penal Code sections
667.5(c) and 1192.7(c). They include:
residential burglary, robbery, kidnapping,
murder, most sex offenses like rape and child
molestation, any offense in which a weapon was
personally used whether or not anyone was
injured, any offense in which great bodily
injury was inflicted, arson, crimes involving
explosive devices, or attempts to commit any
of those offenses.
|What happens with one
A defendant who is convicted of any new
felony who has one "strike" prior
(known as a second striker) must go to prison
(i.e., cannot be sent to a rehab facility or
placed on probation) for twice the sentence
otherwise prescribed for the new offense.
Additionally, he must serve 80% of the
sentence imposed whereas non-strike prisoners
generally get between on-third and one-half
off of the sentence imposed for good behavior
and working while in prison.
|What happens with two or
more "strike" priors?
A defendant with two or more
"strike" priors (a third striker)
faces a minimum of 25-years-to-life in prison.
He earns no time off for good behavior or
working. After serving the determinant minimum
amount of time (25-years on a 25-to-life
sentence) he is then eligible for, but not
guaranteed, parole. Whether and when an
eligible life prisoner (prisoners serving
life-without-parole sentences for murder are
never eligible for parole) is paroled is up to
the Board of Prison Terms (BPT). The BPT is
made up of members appointed by the Governor
and tend to be very conservative about
paroling eligible life inmates. Since no
3-Strike life prisoner has become eligible for
parole and none will until 2019, no one knows
how the BPT will deal with 3-Strike
|Is 3-Strikes punishment
mandatory in all cases?
In certain circumstance where the
sentencing court finds that a second or third
strike defendant falls outside the
"spirit" of the 3-Strikes Law, the
court may, either on motion of the prosecutor
or on the court’s own motion, strike or
dismiss one or more "strike" priors.
This is done pursuant to the power vested in
the courts since 1860 to dismiss all or part
of an action for good cause and in furtherance
of justice. The court must state on the record
and include in the court minutes the facts
which the court finds justify dismissing the
prior. A decision to strike or dismiss a
"strike" prior is appealable by the
prosecution and reviewable by the Court of
Appeal and the Supreme Court. The San Diego
Public Defender’s Office is proud to have been
the law firm which established this rule of
law in the California Supreme Court in the
first 3-Strikes case to be decided by the
Supreme Court. (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.)
|Do judges dismiss
"strike" priors often?
Generally, sentencing judges will strike or
dismiss a prior only when it is old and the
new offense is minor and the defendant has a
non-violent history. It is extremely rare if
not unheard of for a court to strike or
dismiss a prior when the new offense is also
serious or violent. Even though the court can
strike priors, California’s prisons still
receive more drug offenders sentenced as
second or third strikers than any other class
|What can be done to make
the 3-Strikes law more fair?
Of course, not everyone thinks the
3-Strikes law is unfair. More than 60% of the
voters who voted (did
you vote?) voted for 3-Strikes. However,
a lot of people who voted for 3-Strikes were
not aware of what it really means and does.
This is not surprising since it is very poorly
drafted, very long, and very technical. The
campaign literature in support of 3-Strikes
talked about putting repeat rapists, robbers,
and murderers away for a long time. It didn’t
talk about putting petty thieves and drug
users away for 25-years-to-life. As a result
of the realization by some that 3-Strikes is
much harsher than they originally thought and
that it costs a whole lot of money ($20+
thousand/year) to keep people in prison,
certain members of the California Legislature
are starting to rethink 3-Strikes to a certain
extent. There have been proposals to limit its
application to cases where the new offense is
a "serious" or "violent"
crime. No legislation has yet passed modifying
3-Strikes. It will be very difficult to modify
it also, since it take a 2/3 vote of the
Legislature to change 3-Strikes or another
initiative measure passed by the voters. If
you are interested in what is pending in the
California Legislature on this or any other
issue, you will find the
Assembly web sites very interesting,
informative, and useful.