Three strikes: when $20 will get you 25 to life

In the early 1990’s a wave of crime swept over California and provided the impetus for increased criminalization, harsher sentencing, and the wholesale rejection of rehabilitation as a penological goal.  In the same year (1994) that Bill Clinton signed an assault weapons ban, Californians passed the Three Strikes Law by initiative.  The same year, Colorado, Connecticut, Indiana, Kansas, Nevada, and North Dakota passed their own “three strikes” initiatives.  The father of the late Polly Klass encouraged passage of the bill.  

Californians don’t understand how the sentencing scheme works.  Few people do.  The first two “strikes” in the scheme need to be serious or violent felonies.  California statute distills what crimes are serious and what crimes are violent.  Not all serious crimes are that serious.  In most states, shoplifting is a lesser crime than burglary.  In California, shoplifting is second degree burglary.  The first and second felonies result in sentencing according to the normal sentencing laid out in the California Penal Code.  

The third strike does not have to be serious or violent.  The third strike simply needs to be a felony.  In addition, the third strike can be a wobbler.  See my previous post on wobblers in California here.   The sentence for the third strike is “25 years to life in prison.”  Again, few Californians understand what that means.  The sentence “25 years to life in prison” means that the prisoner will serve a minimum of 25 years in prison.  After 25 years, they will eligible for a parole board hearing during which the parole board will use their discretion and decide whether or not to release the individual on parole.  It is within the discretion of the parole board to keep the individual in prison for life.  That is what “25 years to life in prison” means.

Let’s look at a recent example of how the three strikes law can work in real life.  Scott Andrew Hove was a welder by trade.  In 1991 Hove broke into rooms and the offices of a hotel he was staying at.  He pleaded guilty to three counts of second degree burglary (a serious crime).  The first two strikes can be committed at the same time on the same day, as long as they are separate counts.  Hove recently walked out of a Home Depot with a pair of gloves and some welding wire worth $20.94.  This was a wobbler that could be charged as a felony.  The Riverside District Attorneys Office decided to prosecute Hove under the three strikes law.  He is now serving 29 years to life in prison for stealing $20.94 from Home Depot.  Admittedly, Hove isn’t the most egregious case which implemented the Three Strikes Law, as he did commit some other unlawful acts in the interim, but the application of the law in this case seems totally egregious and out of proportion with the crime committed.  You can read about Hove here. 

As egregious as the Three Strikes Law is, it appears to be here to stay.  The Supreme Court in both Ewing v. California, 538 U.S. 11 and Lockyer v. Andrade, 538 U.S. 63 held that similar three strikes sentences were not violations of the 8^th Amendment guarantee against cruel and unusual punishment.