Symbol and Substance: Effects of California's Three Strikes Law on Felony Sentencing
Sutton, John R., Law & Society Review
California's "three strikes and you're out" law is the most notorious example of the wave of mandatory sentencing policies that many states enacted beginning in the late 1970s. While advocates and critics predicted the law would have profound effects on aggregate punishment trends and individual case outcomes, Feeley and Kamin's analysis of previous sentencing reforms suggested the law's impact would be mainly symbolic because local officials would ignore, subvert, or nullify its major provisions. While aggregate analyses have tended to confirm this argument, so far there has been no systematic test of the law's effect on individual cases. This analysis uses multilevel models applied to case-level data from 12 urban California counties to test hypotheses about shifts in average punitiveness, the relative influence of legal and extralegal factors on sentencing, and the uncertainty of sentencing outcomes. Results mostly support Feeley and Kamin's symbolic interpretation, but also reveal important substantive impacts: since Three Strikes, sentences have become harsher, particularly in politically conservative counties, and black felons receive longer prison sentences.
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California's "three strikes and you're out" law, enacted in 1994, is the most notorious example of the wave of mandatory sentencing reforms that swept the United States from the late 1970s through the '90 s. The law's notoriety is not due to its originality. Washington state passed the first Three Strikes law the year before, and nine other states passed their own laws the same year as California (Austin et al. 1999). Moreover California's law was not qualitatively different from the state's existing mandatory sentencing policy, nor from the habitual offender statutes that had long existed in almost all states. The new law's notoriety arose from two sources. One was its significance as an exemplar of penal populism. The measure originated as a ballot initiative, and the Three Strikes movement exploited two recent and particularly cruel murders, both committed by repeat felons, to stampede the media, voters, and state politicians toward adoption, in the process turning local tragedies into national icons (Domanick 2004). The second source was the exceptional breadth and harshness of the new policy. Similar to reforms in other states, California's law required that defendants convicted for the second time of any of a certain class of felonies receive twice the normal sentence, and that those convicted for a third time receive a sentence of life imprisonment with no parole after less than 25 years. But the California law defined "strikeable" offenses expansively, including with the usual list of violent felonies a set of "serious" but nonviolent felonies such as selling drugs to minors, burglary, and weapons possession. Moreover, California is unique in that any felony can be called a third strike at the discretion of the prosecutor, not just those on the "serious or violent" list (Austin et al. 1999; California Legislative Analyst's Office 2005:5-9).
Following the law's enactment, legal officials, correctional administrators, politicians, and academics tried to predict its likely impact. Three schools of thought emerged. Advocates of the law, including the governor and attorney general, argued that the new policy would reduce crime and improve public safety in a costeffective way by incapacitating some bad actors, deterring others, and encouraging still others to leave the state for more lenient climes; and further that by reducing judges' discretion it would reduce racial disparities in sentencing (Greenwood et al. 1994; King & Mauer 2001; Lungren 1996). A second group of critics doubted whether the habitual offenders targeted by the new law actually existed as an identifiable class of defendants (Auerhahn 1999), and worried that it would lead to gross inequities of justice, a paralyzing rise in demands for jury trials, overcrowding in jails and prisons, and ultimately to severe fiscal strain on state and local governments (Cushman 1996). …