Three Strikes Laws

Three strikes laws are sentence enhancements for a third conviction for a serious or violent criminal offense. The “three strikes and you’re out” concept is intended to keep career criminals and violent offenders in prison. Originally, the law was named because “three-strike” defendants would be “out” – that is, given a life sentence.

Passed by Congress and many states throughout the 1990s to reduce high crime rates, three-strikes laws are aimed at reducing the number of convicted felony offenders released after serving what some considered to be too lenient of sentences. Three-strikes laws are different from habitual offender laws, although they are similar in concept.

The best way to avoid the consequences of three strikes laws is to avoid conviction. If you find yourself ever facing criminal charges and wish to avoid any applicable three-strikes law, contact an experienced criminal defense attorney.

What Crimes Count as One Strike?

It differs by state, but generally, a criminal defendant will not get a “strike” unless charged and convicted of a serious crime, particularly violent crimes and felony offenses. To get one strike you usually need to commit a felony, but not all felonies count as a strike. For example, a white-collar crime such as fraud can be a felony, but since it is not a violent crime it often doesn’t count as a strike. Generally, any crime that causes — or threatens to cause — bodily injury is often enough to count as a strike.

What States Have Three-Strikes Laws?

Most states have some version of a three-strikes law. However, states differ in what they count as a strike and how many someone needs to trigger the law. In some states, a conviction for a third serious or violent offense means life in prison without the possibility of parole. In others, a third strike means a sentence enhancement of 10 or 15 years. Some states only count violent offenses as a strike. Others include serious but nonviolent offenses, such as drug trafficking or treason.

Some states have a different amount of strikes needed to trigger a sentence enhancement. In South Carolina, for example, you only need two strikes to get a life sentence without the possibility of parole if the two convictions involve a “most serious offense.” These are murder, some types of kidnapping charges, and voluntary manslaughter, among others.

The Federal Three-Strikes Law

It is not just state offenses that can trigger three-strikes sentencing. Congress passed a federal three-strikes law in 1994. Under the Violent Crime Control and Law Enforcement Act of 1994, a felon convicted in federal court will receive a life sentence if:

• They were previously convicted of committing a serious, violent felony, and
• They have two or more prior convictions in federal or state court, at least one of which was for a serious violent felony

Serious violent felonies include murder, manslaughter, sex crimes, and other offenses that include the use of force. If sentenced under the federal three-strikes law, you receive a mandatory life sentence.

Prior Convictions Matter

Even if your state does not have a three-strikes law, a criminal record can affect sentencing. Under state and federal sentencing guidelines, prior convictions can mean an increased sentence. Generally, guidelines use a points system or worksheet to determine a recommended sentence for a particular criminal defendant.

The sentence enhancement can also depend on the previous offense. For example, a crime committed as a juvenile may or may not lead to a sentence enhancement, whereas a violent offense or prior felony committed recently is much more likely to lead to a longer sentence. This is true whether it is your third strike or your second. Courts are generally more lenient toward first offenders, and the justice system gets increasingly tougher the more prior convictions you have.

Reforms to Three-Strike Laws

Three-strikes laws are often the target of reform. Critics of these laws argue that they lead to overly harsh punishment and overcrowded prisons. Three-strikes laws that include nonviolent crimes as a “strike” are particularly controversial. However, three-strikes laws still have many advocates who argue that these sentence enhancements help reduce serious felonies and violent crime by keeping repeat offenders in prison.

Three strikes laws have come under fire lately due to high prison populations. Additionally, the continued legalization of marijuana in some jurisdictions highlights the unfairness of those serving a prison sentence because a drug offense was one of their three strikes. Some call three-strikes laws the sort of cruel and unusual punishment that the Constitution prohibits.

The controversy surrounding three-strikes laws means lawmakers are continually proposing amendments. California’s three-strikes law, for example, was amended in 2012 after a successfully passed ballot initiative (Proposition 36), and proposed reforms have occurred in many states over the last several years.

Continual refinement of three-strikes laws is one reason why states differ so much in how their three-strikes laws work. The recent trend is toward softening punishment under three-strikes laws.

However, in 2023, Louisiana’s highest court struck down a law allowing prosecutors to use discretion when negotiating post-conviction plea deals with defendants caught in the state’s three-strikes law for minor crimes.

Three Strikes vs. Habitual Offender Laws

Another common sentence enhancement at both state and federal courts is habitual offender laws. Both habitual offender and three-strikes laws have the same goal: to prevent future serious or violent crimes and ensure that repeat offenders serve an appropriate amount of time.

Generally, three-strikes laws are aimed at violent felonies. Habitual offender laws, on the other hand, usually apply to a broader range of criminal offenses. Some criminal laws specifically reference habitual offenders. For example, federal law includes a sentence enhancement for domestic assault committed by a habitual offender.

If you are ever facing criminal charges, contact a criminal defense lawyer in your area.