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11 Stan. L. & Pol'y Rev. 65 (1999-2000)
Striking out: The Failure of California's Three Strikes and You're out Law

handle is hein.journals/stanlp11 and id is 69 raw text is: Striking Out: The Failure of
California's Three Strikes and
You're Out Law
Mike Males & Dan Macallair

On March 7, 1994, California
Governor Pete Wilson signed into
law one of the most punitive
sentencing  statutes  in  recent
history.  Dubbed Three Strikes
and   You're   Out,  the  law
mandated a minimum 25-years-to-
life indeterminate sentence for
felony offenders who have two or
more prior serious or violent
felonies.'  For felons with one
previous violent or serious felony,
the law doubled the presumptive
prison sentence.2 Later that year,
in  the  wake   of .the  widely
publicized Polly Klaas case,3 the
law was overwhelmingly affirmed
by  three-fourths  of  California
voters  through    a   statewide
initiative (Proposition 184).'
Under the Three Strikes law,
serious and violent felonies include

This study... finds
virtually no evidence
supporting the Three
Strikes law's deterrent
or selective
incapacitation effect
on targeted
populations or
jurisdictions most

(but are not limited

to) murder, rape, robbery, aggravated assault, lewd acts
with a child, kidnapping, arson, bombing, providing hard
drugs to a minor, and residential burglary with a weapon.'
Unlike other states' versions of Three Strikes, California's
version does not require the Third Strike to be violent or
Mike A. Males is a research fellow at the Center on Juvenile and
Criminal Justice's Justice Policy Institute and holds a Ph.D at
the University of California Irvine. Dan Macallair is the
Associate Director of the Center on Juvenile and Criminal
Justice and Justice Policy Institute. He also teaches in the
Criminal Justice Program at San Francisco State University.
The authors thank Khaled Taqi-Eddin for his research assistance
on the paper.

serious  to  qualify  for  a   life
sentence.     Furthermore,  many
offenses such as petty theft, drug
possession, or weapons possessions,
which might be minor felonies, may
be considered a Third Strike.7 In
1997, over 60 percent of all Third
Strike offenders were sentenced for
nonviolent and nonserious offenses.
The severe nature of Three
Strikes was intended to maximize
the   criminal  justice   system's
deterrent and selective incapacitation
effects. Under the deterrence theory,
individuals  are  dissuaded  from
criminal activity through the threat
of state-imposed penalties.9 Under
the selective incapacitation theory,
crime is reduced by incapacitating a
small group of repetitive offenders,
which   this theory  assumes   are

responsible for a large portion of serious crime.'
Three Strikes' opponents claim that the itatute is
misguided because it targets older offenders who are
reaching  the end   of their crime prone' years.I
Historically, the majority of chronic offenders have
stopped committing crimes after age 28.2 The crime
prone years are generally thought to be between the ages
of 14 and 28.' However, current crime trends suggest an
aging offender population (see Table 1). Therefore, in
theory at least, Three Strikes laws are correctly targeted at
the state's growing crime population of offenders over the
age of 25.
In the 1998 California governor's race, both major
party candidates credited the Three Strikes law with

VOLUME 11:1 1999

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