Sentencing reform policies have paralleled the mood of the country on crime and punishment, shifting between requiring a fixed prison time prior to release or allowing discretionary release of offenders by judges, parole boards, or corrections officials. Over the last two decades, sentencing requirements and release policies have become more restrictive, primarily in response to widespread "get tough on crime" attitudes in the Nation.
—Paula M. Ditton and Doris James Wilson, Truth in Sentencing in State Prisons (Washington, DC: Bureau of Justice Statistics, January 1999)
Sentencing policies have changed since the 1970s. Prison populations began increasing in 1973 from a rate of ninety-six prisoners per 100,000 adult residents in the United States to an estimated 482 per 100,000 in 2003. (See Table 4.3 in Chapter 4.) Between 1925 and 1973 the ninety-six per 100,000 rate was one of the lowest, matched, for instance, by the rate in 1928. The average imprisonment rate during the 1925–73 period was 107 prisoners per 100,000 people. The highest rate in this time period was reached in 1939 when 137 people were incarcerated in state and federal prisons per 100,000 residents. The average in the period 1974–2003 was 279.
The period of expanding incarceration also coincided with emphasis at state and federal levels on controlling the use and distribution of drugs. The first legislation against drugs was the Harrison Act, enacted in 1914, which outlawed opiates and cocaine. Marijuana was outlawed in 1937. The "war on drugs" was declared in the early 1970s when the National Commission on Marihuana and Drug Abuse (also known as the Shafer Commission) published its recommendation that marijuana be legalized (Marihuana: A Signal of Misunderstanding, Report of the National Commission on Marihuana and Drug Abuse, March 1972). The commission was appointed by President Richard Nixon, who later rejected the commission's recommendation and declared war on drugs.
As reported in Key Facts at a Glance on the Web page of the Bureau of Justice Statistics (BJS) ("Number of Persons in Custody of State Correctional Authorities by Most Serious Offense, 1980–2001," http://www.ojp.usdoj.gov/bjs/glance/tables/corrtyptab.htm), prisoners in state systems incarcerated for drug offenses comprised 6.5% of the prison population in 1980. By 2001 they represented 20.4% of prisoners. Drug prosecutions also have made up a growing proportion of the federal criminal caseload. In 1982, 21% of federal defendants were held on drug charges, while 35% were drug related in 2002. In addition to a sharp growth in drug crimes, crimes of violence also spiked. From 1995 to 2001, half of the increase in the state prison population was due to an increase in the prisoners convicted of violent offenses.
It is against this background that new sentencing policies developed. Paula M. Ditton and Doris James Wilson (Truth in Sentencing in State Prisons) summarize the situation beginning with the 1970s as follows:
In the early 1970s, states generally permitted parole boards to determine when an offender would be released from prison. In addition, good-time reductions for satisfactory prison behavior, earned-time incentives for participation in work or educational programs, and other time reductions to control prison crowding resulted in the early release of prisoners. These policies permitted officials to individualize the amount of punishment or leniency an offender received and provided means to manage the prison population.
Such discretion in sentencing and release policies led to criticism that some offenders were punished more harshly than others for similar offenses and to complaints that overall sentencing and release laws were too soft on criminals. By the late 1970s and early 1980s, States began developing sentencing guidelines, enacting mandatory minimum sentences and adopting other sentencing reforms to reduce disparity in sentencing and to toughen penalties for certain offenses, specifically drug offenses (as part of the "war on drugs"), offenses with weapons, and offenses committed by repeat or habitual criminals.
Sentence reforms enacted by states came to be known as "truth-in-sentencing" statutes. The first such statute was enacted by the state of Washington in 1984. According to William J. Sabol and colleagues at the Urban Institute (The Influences of Truth-in-Sentencing Reforms on Changes in States' Sentencing Practices and Prison Populations, Washington, DC, April 2002), forty-two states and the District of Columbia had enacted some type of truth-in-sentencing statute.
Also in 1984, Congress established the U.S. Sentencing Commission (USSC) in the Sentencing Reform Act. Congress charged this new federal agency with developing sentencing guidelines for federal courts. The Sentencing Reform Act was the federal enactment of truth-in-sentencing.
"Truth-in-sentencing," abbreviated as TIS, is intended to tell the public that a sentence announced by the court will actually be served—rather than the criminal serving only some small fraction of the sentence, the prisoner being released on parole, or the individual having the sentence commuted to probation and serving no time at all. Under TIS statutes, offenders are required to spend substantial portions of their sentences in prison. The federally recommended portion is 85% of the sentence.
With TIS came the distinction between indeterminate and determinate sentencing. Indeterminate sentencing gives parole boards the authority to release offenders at their option after a process of review. Determinate sentencing takes decision-making power away from parole boards, fixes the term to be served, and provides or denies the means to shorten the sentence by good behavior or other "earned" time. Part of the truth-in-sentencing statues are mandatory minimum sentences specified by law for specific offenses and circumstances. Mandatory minima are published in sentencing guidelines, which judges are required to use. Guidelines define the range of sentences the judge may apply, again governed by the offense and the prior history of the offender (e.g., first-time or repeat-offender, severity of the offense, etc.).
Setting uniform sentences for offenses and requiring that fixed proportions of them be served by those convicted put pressure on prison and jail capacities. In response, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, known as the 1994 Crime Act. Its grant program provisions set as a requirement for funding that states have in place truth-in-sentencing statutes. Thus, the federal government provided incentives to states for enacting truth-in-sentencing laws or to conform such laws to the federal sentencing guidelines published by the USSC. Eleven states passed truth-in-sentencing laws in 1995 in response to the federal initiative.
The net effect of federal guidelines, the 1994 Crime Act and its financial incentives, and state actions before and after federal legislation has been to make sentencing more uniform across the nation and, at the state level, to extend the time convicted felons spend in prison.
FEDERAL SENTENCING GUIDELINES
The Sentencing Reform Act of 1984 is the federal approach to truth-in-sentencing, or determinate sentencing. In the U.S. Sentencing Commission's publication Fifteen Years of Guidelines Sentencing (Washington, DC, November 2004) are listed the goals of the Sentencing Reform Act:
- Elimination of unwarranted disparity
- Transparency, certainty, and fairness
- Proportionate punishment; and
- Crime control through deterrence, incapacitation, and the rehabilitation of offenders
These goals were aimed at eliminating the unregulated power of federal judges to impose sentences of indeterminate length. Such power resulted in persons convicted of the same crime but sentenced by different judges receiving wildly different terms of incarceration. The development of federal guidelines by the USCC was intended to give both a range of sentencing options to federal judges while guaranteeing minimum and maximum sentencing lengths.
The federal guidelines were originally developed by the USSC, which continues to update the guidelines as laws administered by the federal courts are changed or new laws are passed. The latest edition of the guidelines were published in 2004 (Federal Sentencing Guidelines Manual, November 2004, http://www.ussc.gov/2004guid/TABCON04.htm). Supplemental volumes are also issued by the USSC.
At the core of the guidelines are offenses as defined by federal statutes. The USSC assigns an "offense level" to each offense, known as the Base Offense Level. Levels are numbered from 1 to 43. The lowest actual offense for which the USSC has a level is Trespass. Trespass is level 4. First degree murder has a Base Offense Level of 43. Based on various circumstances associated with an offense, additional levels may be added or taken away until a particular offense has been precisely defined by level. Levels are abstract numbers. Their purpose is to enable the judge or prosecutor to find a particular sentence, in months of imprisonment, in the federal Sentencing Table.
An illustration is provided for kidnapping, abduction, and unlawful restraint. (See Table 9.1.) The table reproduces the USSC's guideline for this offense. The
|§2A4.1. Kidnapping, abduction, unlawful restraint|
offense has a Base Offense Level of 32, but additional levels can be added. For instance, if the victim sustained serious bodily injury, the level is increased by four to 36. If the victim was also sexually exploited, the level is increased by six levels to 38. If the victim was not released before seven days had passed, the level is increased by one to 33.
In the USSC's Sentencing Table, presented as Table 9.2, level 28 points to six columns of sentence ranges indicating a minimum and a maximum sentence in each column. The first column, where the sentence range is seventy-eight to ninety-seven months, the offender either has no prior convictions or has one prior conviction. In the sixth column, where the sentence is 140 to 175 months, the offender has thirteen or more prior convictions. A single level thus provides six different levels of confinement, and, within each level, there is a range from minimum to maximum. Judges are not entirely deprived of discretion by determinate sentencing.
Level 28 falls into the Sentencing Table's Zone D. This means that the individual may not receive any probation and must serve at least the minimum sentence shown in the applicable column. A three-time offender would be minimally sentenced to eighty-seven months in prison and, under the USSC guidelines, could receive, maximally, fifty-four days off per year for good behavior and would therefore serve at least 85% of the minimum sentence. In the case illustrated earlier, where sexual exploitation is involved, the individual would also be charged for criminal sexual abuse (a Base Offense Level of 24) or for sexual abuse of a minor (Level 18 to 24 depending on whether the abuse was attempted or committed). Parole is not available in any of the guideline cases.
Property crimes are handled in the USSC guidelines in a similar manner. The base level is increased with the amount of property involved. With larceny, embezzlement, and other forms of theft, for instance, the Base Offense Level is 6 in cases where the loss to the victim is $5,000 or less. If the loss is greater than $5,000 but less than $10,000, the level rises to 8 and continues to rise as the amount of the loss rises. If the loss is more than $200,000 but less than $400,000, the level is 18. If the loss is greater than $100 million, the level is 32—which will result in a mandatory sentence of at least ten years in prison for a first-time offender. A person who earned the maximum days for good behavior could expect to be out in eight years and six months if he or she received the minimum sentence. Fines and restitution of stolen money or property would be required in addition.
"Departures" from the Guidelines
Application of the Federal Sentencing Guidelines has increased the likelihood of imprisonment and the average length of sentences, according to the USSC's Fifteen Years of Guidelines Sentencing. In 2002 some 86% of all federal offenders were sentenced to prison, an increase from 69% in 1987. The average sentence in 2002 was almost twice as long as in 1984, but there were yearly variations during this period. Based on data published in the Sourcebook of Criminal Justice Statistics, 2002 (Bureau of Justice Statistics, 2004), the average sentence imposed in 1990 was 59.2 months, excluding life sentences. The average length peaked at 66.4 months in 1995 and then declined to 46.9 months in 2002. This is
|Criminal history category (criminal history points)|
|Offense level||I (0 or 1)||II (2 or 3)||III (4, 5, 6)||IV (7, 8, 9)||V (10, 11, 12)||VI (13 or more)|
|Note: Zones indicate whether or not the individual is eligible for probation. Terms that fall into Zone A are eligible for straight probation. Terms that fall into Zone B are eligible for a split sentence in which a portion of the sentence is served in prison, a portion under probation. The person may receive less than the minimum sentence but must serve the remaining time under probation, intermittent confinement, community confinement, or home detention. Terms that fall into Zone C are eligible for probation, but at least half of the guideline sentence must be served in prison. Terms that fall into Zone D require that the minimum term must be served in prison. The criminal history columns refer to prior offenses. Under Category II, for instance, the person to be sentenced has had 2 or 3 prior convictions. This note is not part of the official Sentencing Table; it has been adapted from Lucien B. Cambell and Henry J. Bemporad, An Introduction to Federal Guideline Sentencing, United States Sentencing Commission, Washington, DC, March 2003.|
due, in part, to stipulations in the guidelines for so-called "departures" from the guidelines' own provisions. Departures may be "upward" for cases where special circumstances merit longer incarceration than the guideline provides for the maximum sentence; "downward" departures authorize lesser than guideline sentences either for extenuating circumstances or because the defendant provided "substantial assistance" to federal authorities, typically in the form of helping a broader investigation or providing testimony against other suspects.
The 2002 Sourcebook of Federal Sentencing Statistics (Washington, DC: U.S. Sentencing Commission, 2003) reported that in 2002 only 65% of sentences rendered by federal courts were within the range of the guidelines; 0.8% of sentences were upward departures and 34.2% were downward departures, slightly more than half of those for "substantial assistance." (See Table 9.3.)
Departures mean that the guidelines are applied to a majority but not to all persons charged with federal
|Sentenced within range||Substantial assistance departure||Other downward departure||Upward departure|
|Burglary/breaking and entering||42||30||71.4||5||11.9||4||9.5||3||7.1|
|Administration of Justice offenses||1,010||719||71.2||144||14.3||134||13.3||13||1.3|
|Food & drug||77||55||71.4||10||13.0||11||14.3||1||1.3|
|Other miscellaneous offenses||727||592||81.4||68||9.4||58||8.0||9||1.2|
|Note: Of the 64,366 cases, 5,943 were excluded due to one or both of the following reasons: missing primary offense (393) or missing/inapplicable departure information (5,682).|
offenses—and also variably by category of offense. In 2002 the two highest categories under guidelines were simple possession of drugs (95.2% under guideline) and embezzlement (87.5%). The lowest category by far was related to antitrust violations (31.3%). Those charged with antitrust violations were most likely to get lower sentences for cooperating with prosecutors; those charged with manslaughter were the most likely to get higher than guideline sentences for unusual violence.
Blakely v. Washington and United States v. Booker
U.S. Supreme Court decisions in 2004 and 2005 have modified sentencing guidelines. In 2004 the Supreme Court ruled in Blakely v. Washington that a state judge cannot impose a longer sentence when the basis for such an enhanced sentence was neither admitted to by the subject nor found by a jury. In the Blakely case the subject admitted to kidnapping his estranged wife. The maximum sentence for the crime was fifty-three months in prison, but the judge imposed a sentence of ninety months after determining that the subject had acted with deliberate cruelty, a factor that under existing statutes allowed a longer sentence. However, the charge of deliberate cruelty had not been part of the subject's plea, and it had not been determined by a jury. The Supreme Court found that the Sixth Amendment right to a trial by jury had thus been violated. The Blakely ruling means that only facts proved to a jury can justify an enhanced sentence.
A related ruling occurred in January 2005 with United States v. Booker. In this case the subject had been charged with possession with intent to distribute 50 grams of crack cocaine, a crime for which the federal sentencing guidelines set a twenty-one-year, ten-month sentence. But the judge later determined that the subject had possessed 92 grams of crack cocaine and had obstructed justice as well. Because of these additional offenses, the judge sentenced Booker to thirty years in prison. In language similar to the Blakely ruling, the U.S. Supreme Court ruled that federal judges cannot determine facts that are used to increase a defendant's punishment beyond what is authorized by a jury verdict or the defendant's own admissions. In addition, the court ruled that federal sentencing guidelines should be considered, but judges are not required to follow them. The legal impact of these two decisions is still being worked out in the courts.
STATE SENTENCES AND TIME SERVED
The adoption of truth-in-sentencing statutes appears to have resulted, at the state level, in a decrease in the length of sentences imposed but an increase in the total time served, including percent of the sentence imposed actually being spent in prison.
Average sentence lengths can decline while time served can stay the same or increase if mandatory time
|Maximum sentence length (in months) for felons sentenced to—|
|Most serious conviction offense||Incarceration|
|All offenses||36 mo||53 mo||7 mo||38 mo|
|Violent offenses||62 mo||84 mo||8 mo||43 mo|
|Other sexual assault||65||84||8||51|
|Property offenses||28 mo||41 mo||7 mo||37 mo|
|Motor vehicle theft||18||30||6||33|
|Drug offenses||32 mo||48 mo||6 mo||36 mo|
|Weapon offenses||28 mo||38 mo||7 mo||35 mo|
|Other offenses f||23 mo||38 mo||6 mo||37 mo|
|Note: For persons receiving a combination of sentences, the sentence designation came from the most severe penalty imposed prison being the most severe, followed by jail, then probation. Prison includes death sentences. Felons receiving a sentence other than incarceration or probation are classified under "probation." Means exclude sentences to death or to life in prison. This table is based on an estimated 945,167 cases.|
|a Includes nonnegligent manslaughter.|
|b Includes rape.|
|c Includes offenses such as negligent manslaughter and kidnapping.|
|d Includes motor vehicle theft.|
|e Includes forgery and embezzlement.|
|f Composed of nonviolent offenses such as receiving stolen property and vandalism.|
in prison, as a percent of the sentence, increases. Thus, for instance, a person sentenced to five years serving 60% of his sentence serves as long as a person sentenced to four years who serves 75% of her sentence. In both cases time served will be three years.
Data in Table 9.4, the most recent comprehensive statistical measurement available, show that sentence lengths in 2002 were down almost uniformly from earlier years. Average length of sentence for all offenses was thirty-six months in 2002, down from sixty-nine months in 1990. During the same period, the average sentence for rape dropped from 128 months to 104 months and for robbery from 104 months to seventy-nine months. Only for murder (209 months in 1990 to 217 months in 2002) did the sentence increase in length. The percent of sentence actually served, however, rose during this time. According to Felony Sentences in State Courts, 2002 (Bureau of Justice Statistics, December 2004), in 2002 convicted persons could expect to serve 51% of their sentences, up from 38% in 1990.
THREE STRIKES, YOU'RE OUT
Nine years after passing the first truth-in-sentencing law, the State of Washington passed the first of the so-called "three-strikes" laws in December 1993. The measure took effect in the wake of a voter initiative, which passed by a three-to-one margin. Three-strikes laws are the functional equivalent of sentencing guidelines in that they mandate a fixed length of sentence for repeat offenders for specified crimes or a mix of crimes—but their formulation in public debate, using the baseball analogy, is much easier to understand than the complexities of thick books of codes and sentencing tables. Under three-strikes laws, the offender receives a mandatory sentence upon conviction to the third offense—life imprisonment without parole (the case in Washington state), twenty-five years without parole (as in California), or some variant of a long sentence. The purpose behind such laws is to remove the criminal from society for a long period of time or in some instances, for life. Such criminals have been convicted repeatedly of serious offenses or felonies.
The Washington law identifies specific offenses that are "strikable." California, which passed its own (and more famous) three-strikes law just months after Washington passed its measure, specifies the categories of offenses that must precede the third felony conviction. A convicted felon in California has his or her sentence doubled if there is a prior serious or violent felony conviction on his record. The convict receives a 25-year-to-life sentence if convicted of a third felony if the previous two convictions were for serious or
|Homicide||Murder 1 or 2|
Controlled substance homicide
Homicide by abuse
Manslaughter 1 or 2
|Sexual offenses||Rape 1 or 2|
Incest of child
Lewd act on child
Continual sexual abuse of child
Penetration by foreign object
Sexual penetration by force
Sodomy by force
Oral copulation by force
|Robbery||Robbery 1 or 2||Robbery|
|Felony assault||Attempt murder|
Assault 1 or 2
Assault with a deadly weapon on a peace officer
Assault with a deadly weapon by an inmate
Assault with intent to rape or rob
|Other crimes against persons||Explosion with threats to humans|
Kidnapping 1 or 2
|Any felony resulting in bodily harm|
Arson causing bodily injury
Exploding device with intent to injure
Exploding device with intent to murder
|Property crimes||Arson 1|
Burglary of occupied dwelling
Grand theft with firearm
|Drug offenses||Drug sales to minors|
|Weapons offenses||Any felony with deadly weapon|
Possession of incendiary device
Possession of prohibited explosive device
|Any felony with deadly weapon|
Any felony where firearm used
Leading organized crime
violent felony offenses. All persons convicted under the California Three Strikes law must serve 80% of their sentence before they are eligible for parole. Table 9.5 compares the three-strikes laws in Washington and California.
A strike zone refers to the crimes that constitute a strike and under what conditions those crimes become a strike. A strike generally is a serious offense, such as a violent felony, including murder, rape, robbery, arson, aggravated assault, and carjacking. The strike zone is intended to deter offenders convicted repeatedly of such crimes.
States with Three-Strike Laws
As of 2004, twenty-three states had three-strike laws. California had used the law to jail far more offenders (42,322) than any other state. Georgia was next with 7,631, followed by Florida (1,628) and Maryland (330). (See Table 9.6.)
California's law is unique in that the third offense may be any felony or even a misdemeanor. This is possible because certain classes of offenses are known under California law as "wobblers." Depending on the circumstances of the offense and the history of the offender, some offenses may be prosecuted as misdemeanors or as felonies. In virtually all other states with three-strikes laws, all three offenses must be violent crimes—murder, rape, robbery, arson, aggravated assault, and vehicular assault. In some states other crimes are also specified. These include the sale of drugs (Indiana), drug offenses punishable by five years or more of incarceration (Louisiana), escape from prison (Florida), treason (Washington), and embezzlement and bribery (South Carolina). California includes the sale of drugs to minors as one of the crimes that qualify as strike one or strike two offenses.
The differences between the crime rates for those states with three-strike laws and those without them are listed in Table 9.7. In the period 1993 to 2002, three-strike states overall had a reduction in crime of 26.8%, while those states without three-strike laws had a reduction in crime of 22.3%. California faired best among the three-strike states, with a drop in crime of 38.8%. Among states without three-strike laws, New York saw a drop in crime of 49.6%.
Tightening Preexisting Statutes
In all but one of the states with three-strikes statutes (Kansas is the exception), legislation was already on the books when the popularity of three-strikes laws caused half the states—and the Federal Government as well (in 1995)—to enact laws pioneered on the West Coast. California, for instance, had a law on its books that was very similar to those that were later passed as three-strikes statutes in other states. As reported by the NIJ, California required, pre-three-strikes:
Life with no parole eligibility before twenty years for third violent felony conviction where separate prison terms were served for the first two convictions; life without parole for fourth violent felony convictions.
—'Three Strikes and You're Out': A Review of State Legislation (Washington, DC: National Institute of Justice, 1997)
California's statute, therefore, represented a tightening of existing law and a modification of it so that the triggering offense for life imprisonment was the third felony—which did not have to be violent.
|State||Strike zone defined||Strikes needed to "strike out"||Meaning of "striking out"||Number of people in prison under three strikes|
|Arkansas||Murder, kidnapping, robbery, rape, terrorist act.|
First degree battery, firing a gun from a vehicle, use of a prohibited weapon, conspiracy to commit: murder; kidnapping; robbery; rape; first degree battery; first degree sexual abuse.
|Not less than 40 years in prison; no parole.|
Range of no parole sentences, depending on the offense.
|California||Any felony if one prior felony conviction from a list of 'strikeable' offenses'|
Any felony if two prior felony convictions from list of 'strikeable' offenses.
|Mandatory sentence of twice the term for the offense involved.|
Mandatory indeterminate life sentence, with no parole eligibility for 25 years.
|Colorado||Any Class 1 or 2 felony, or any Class 3 felony that is violent.||Three||Mandatory life in prison with no parole eligibility for 40 years.||1|
|Connecticut||Murder, attempt murder assault with intent to kill, manslaughter, arson, kidnapping aggravated sexual assault, robbery first degree assault.||Three||Up to life in prison.|
|Florida||Any forcible felony aggravated stalking, aggravated child abuse, lewd or indecent conduct, escape.||Three||Life if third strike involved first degree felony, 30–40 years if second degree felony, 10–15 years if third degree felony.||1,628|
|Georgia||Murder, armed robbery, kidnapping, rape, aggravated child molesting, aggravated sodomy, aggravated sexual battery.|
|Mandatory life without parole.|
Mandatory maximum sentence for the charge.
|Indiana||Murder, rape, sexual battery with a weapon, child molesting, arson, robbery, burglary with a weapon or resulting in serious injury, drug dealing.||Three||Mandatory life without the possibility of parole.||38|
|Louisiana||Murder, attempted murder, manslaughter, rape, armed robbery, kidnapping, any drug offense punishable by more than five years, any felony punishable by more than 12 years.|
Any four felony convictions if at least one was on the above list.
|Mandatory life in prison with no parole eligibility.|
Mandatory life in prison with no parole eligibility.
|Maryland||Murder, rape, robbery, first or second degree sexual offense, arson, burglary, kidnapping, car jacking, manslaughter, use of a firearm in felony, assault with intent to murder, rape, rob, or commit sexual offense.||Four, with separate prison terms served for first three strikes.||Mandatory life in prison with no parole eligibility.||330(approximately)|
|Montana||Deliberate homicide, aggravated kidnapping, sexual intercourse without consent, ritual abuse of a minor.|
Mitigated deliberate homicide, aggravated assault, kidnapping, robbery.
|Mandatory life in prison with no parole eligibility.|
Mandatory life in prison with no parole eligibility.
|Nevada||Murder, robbery, kidnapping, battery, abuse of children, arson, home invasion.||Three||Life without parole: with parole possible after 10 years; or 25 years with parole possible after 10 years.||304|
|New Jersey||Murder, robbery, carjacking.||Three||Mandatory life in prison with no parole eligibility.||10|
|New Mexico||Murder, shooting at or from a vehicle and causing harm, kidnapping, criminal sexual penetration, armed robbery resulting in harm.||Three||Mandatory life in prison with parole eligibility after 30 years.||0|
|North Carolina||47 violent felonies; separate indictment required finding that offender is "violent habitual offender."||Three||Mandatory life in prison with no parole eligibility.||22|
|North Dakota||Any Class A, B, or C felony.||Two||If second strike was for Class A felony, court may impose an extended sentence of up to life; if Class B felony, up to 20 years; If Class C felony, up to 10 years.||10|
|Pennsylvania||Murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, arson, kidnapping, robbery, aggravated assault.|
|Enhanced sentence of up to 10 years.|
Enhanced sentence of up to 25 years.
|South Carolina||Murder, voluntary manslaughter, homicide by child abuse, rape, kidnapping, armed robbery, drug trafficking, embezzlement, bribery, certain accessory and attempt offenses.||Two||Mandatory life in prison with no parole eligibility.||14|
|Tennessee||Murder, especially aggravated kidnapping, especially aggravated robbery, aggravated rape, rape of a child, aggravated arson.|
Same as above, plus rape, and aggravated sexual battery.
|Two, if prison term served from first strike.|
Three, if separate prison terms served.
|Mandatory life in prison with no parole eligibility.|
Mandatory life in prison with no parole eligibility for first two strikes.
Much the same pattern, with variations, characterized the introduction of three-strikes laws in other states. In Louisiana before it enacted a "Three Strikes Law," a mandatory life term was required for the fourth felony conviction if two previous convictions had been violent or drug offenses. The new law imposed the sentence after the third offense. In Tennessee the preexisting law was mandatory life without parole for the third violent felony
|State||Strike zone defined||Strikes needed to "strike out"||Meaning of "striking out"||Number of people in prison under three strikes|
|Utah||N/A||Three||Ranges from additional three years to life without parole, with judicial discretion.||N/A|
|Vermont||Murder, manslaughter, arson causing death, assault and robbery with weapon or causing bodily injury, aggravated assault, kidnapping, maiming, aggravated sexual assault, aggravated domestic assault, lewd conduct with child.||Three||Court may sentence up to life in prison.||16|
|Virginia||Murder, kidnapping, robbery, car jacking, sexual assault, conspiracy to commit any of above.||Three||Mandatory life in prison with no parole eligibility.||328|
|Washington||Charges listed in source detail.||Three||Mandatory life in prison with no parole eligibility.||209|
|Wisconsin||Murder, manslaughter, vehicular homicide, aggravated battery, abuse of children, robbery, sexual assault, taking hostages, kidnapping, arson, burglary.||Three||Mandatory life in prison with no parole eligibility.|
Mandatory life in prison with no parole eligibility.
conviction. Tennessee's new law imposed the same requirement for the second violent felony. In Vermont, also, a "four-strikes" law was modified and made into a three-strikes law as in Louisiana. In some states the tightening was more stringent. Thus in New Mexico, the preexisting law imposed an increased sentence of one year for the second, an increase of four years for the third, and an add-on of eight years for the fourth felony. The new law imposed a life sentence after the third violent felony but permitted parole after thirty years.
Impact and Effectiveness
In Impacts of Three Strikes and Truth in Sentencing on the Volume and Composition of Correctional Populations (Rockville, MD: National Institute of Justice, 2000), E. Chen states: "This study of Three Strikes and You're Out … and Truth in Sentencing … laws found in general [that] they had only a few short term impacts on the dynamics of prison populations in all States except Washington and for one variable in California." The impact of three strikes in Washington indicates "some reductions in the growth of parole entries and exits associated with three strikes laws." In California, three-strikes laws and truth-in-sentencing combined to increase the percentage of prisoners older than fifty years. The author attributes the absence of effects for three-strikes laws elsewhere to their minimal use in other states.
More significant effects were reported for California in the U.S. Supreme Court's judgment in the case of Ewing v. California, authored by Justice Sandra Day O'Connor (538 U.S., 2003). Citing a statement issued by the Office of the Attorney General, California Department of Justice, "Three Strikes and You're Out"—Its Impact on the California Criminal Justice System after Four Years, 1998, the Justice wrote: "Four years after the passage of California's three strikes law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25%." She continued to cite from the statement as follows:
[a]n unintended but positive consequence of "Three Strikes" has been the impact on parolees leaving the state. More California parolees are now leaving the state than parolees from other jurisdictions entering California. This striking turnaround started in 1994. It was the first time more parolees left the state than entered since 1976. This trend has continued and in 1997 more than 1,000 net parolees left California.
The statement suggests that a three-strikes law with severe penalties, energetically enforced, appears at least to cause the net export of offenders to other jurisdictions.
Another examination of three-strikes laws, written by Eric Lotke, Jason Colburn, and Vincent Schiraldi, was published in 2004 by the Justice Policy Institute. Three Strikes and You're Out: An Examination of the Impact of Three-Strike Laws Ten Years after Their Enactment (Washington, DC: Justice Policy Institute, 2004) judged the decrease in crime in three-strike states (down 26.8%) to be not significantly different from that found in states without three-strike laws (down 22.3%). In the areas of violent crime and homicide, states without three-strikes laws performed marginally better than did those with such laws. "Considering that Three Strikes was a movement largely targeted at violent recalcitrant criminals, with promises of great impact," the Justice Policy Institute report pointed out, "these findings are disappointing ten years after most strikes laws were enacted."
|States||Crime index||Violent crime||Property crime||Homicide|
|Non Strike Total||−22.3%||−34.3%||−20.4%||−43.9%|
California's statute, the most stringent, was upheld by the U.S. Supreme Court in Ewing v. California on March 5, 2003. The case involved Gary Ewing, who was on parole from a nine-year prison term when he stole three golf clubs from a pro shop in El Segundo, California. He had hidden the clubs in his trousers and consequently walked a little strangely as he left. An employee of the shop called the police after seeing Ewing limp out. The police arrested Ewing in the parking lot outside. Each of the stolen clubs was worth $399. Ewing had a long record of offenses going back to 1982. He had been sentenced for theft and given a suspended sentence. A series of offenses followed: grand theft auto (1988), petty theft (1990), battery and theft on separate occasions (1992), burglary (January 1993), possession of drug paraphernalia (February 1993), appropriating lost property (July 1993), unlawful firearms possession and trespassing (September 1993), and three burglaries and one robbery (October and November 1993). During the last of these episodes, he threatened a victim, claiming to have a gun. When the victim resisted, Ewing pulled a knife, forced the victim into an apartment, and rifled through the victim's bedroom. The victim managed to escape, raised the alarm, and Ewing fled with the victim's money and credit cards. He was arrested in December 1993 and sentenced to prison. He was released in 1999 on parole. Ten months after his release came his arrest for stealing the golf clubs. Ewing was sentenced under the three-strikes statute to twenty-five years to life. After the California Court of Appeals upheld his conviction, Ewing appealed to the U.S. Supreme Court claiming grossly disproportionate punishment under the Eighth Amendment's protection against cruel and unusual punishment.
The Supreme Court upheld Ewing's conviction, basing its ruling on an earlier case, Harmelin v. Michigan (501 U.S. 957, 996–997), which states in part that the "Eighth Amendment does not require strict proportionality between crime and sentence [but] forbids only extreme sentences that are 'grossly disproportionate' to the crime." The Court also affirmed the right of the state legislature to set policy for the purposes of protecting public safety, and, quoting from Harmelin, stated that "The Constitution 'does not mandate adoption of any one penological theory."' The Court recognized that among the justifications for a sentence, alongside deterrence, retribution, and rehabilitation, incapacitation—making the offender incapable of preying on the public—could also be used.
Justice Stephen Breyer, joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, dissented. Justice Breyer, author of the dissenting opinion, held that Ewing's sentence had been disproportionate to the offense. Justice Breyer based himself on a similar 1983 case (Solem v. Helm, 463 U.S. 277) in which the Court ruled in the petitioner's favor. In Solem a recidivist offender (Jerry Helm) received a longer sentence (a life sentence) for a lesser crime (passing a bad check for $100). All of Helm's offenses were committed in South Carolina under laws that predated South Carolina's three-strikes law but nevertheless mandated life without parole for third offenses.
The Court's five to four decision in Ewing leaves open the possibility that, in some future case, the Supreme Court may look at California's three-strikes law again and reach a different decision. For the present, however, three-strikes laws have been upheld by the highest court in the United States.
Forms of sentencing other than probation, prison, or a combination of the two (split sentences) also exist and are widely used in virtually every state. The most recent compilation of such approaches was published by the Bureau of Justice Statistics in 2000 in cooperation with the Conference of State Court Administrators (David B. Rottman, et al., State Court Organization 1998, Bureau of Justice Statistics, June 2000).
The BJS identified eleven forms of distinct alternative sentences, although some of these are functionally similar. With the exception of boot camps for young or adult offenders, they all provide offenders more freedom than incarceration but less freedom than ordinary probation. Alternative sentencing is, in part, a response to calls by penal reformers for, as suggested in Americans behind Bars, a "continuum of punishments with probation at one end, more severe community-based sanctions in the middle, and incarceration at the most restrictive end" (New York: Edna McConnell Clark Foundation, 1993) and in part a response to crowding in prisons. Thus, for instance, according to the Bureau of Justice Statistics, many states use halfway houses as a way of relieving crowding. Alternative sentencing is, of course, applied to offenders whose absence of prior criminal history or general characteristics indicate that they can be trusted not to abuse their greater freedom. Opponents, however, see prison sentencing as the only "real punishment" for criminals.
State departments of correction, the District of Columbia, and the Federal Bureau of Prisons offer a range of alternative sentencing options for criminal offenders. Although programs can vary among regions, those options include work release and weekend sentencing, shock incarceration (sometimes called boot camp), community service programs, day fines, day reporting centers, electronic monitoring and house arrest, residential community corrections, and diversionary treatment programs. There is also more variation in the availability of other types of alternative sentencing options, such as mediation and restitution.
In the article "The Effectiveness of Community-Based Sanctions in Reducing Recidivism" (Corrections Today Magazine, February 2003), Ginger Martin surveyed existing data from the state of Oregon concerning the recidivism rates for alternative forms of sentencing. Some 13,219 prisoners released from January 1999 to December 2001 were included in the study. Martin found that such options as community service programs, work release, and electronic monitoring were cheaper than incarceration and showed lower levels of recidivism after twelve months. The addition of a treatment component to the community-based option, such as a drug treatment program, produced a further 10% reduction in recidivism.
Mediation and Restitution
Mediation began in Canada in 1974 and was later adopted in the United States, where more than twenty states were using mediation by the beginning of the twenty-first century. In mediation the victim and the offender meet under the auspices of a community worker and work out a "reconciliation" between them, usually involving some type of restitution and requiring offenders to take responsibility for their actions. This technique is used mainly for minor crimes and often involves private organizations; therefore, the judiciary does not always accept its resolution. Most often restitution is not considered the complete punishment but part of a wider punishment, such as probation or working off the restitution dollar amount while in prison.
Work Release and Weekend Sentencing
Work-release programs permit selected prisoners nearing the end of their terms to work in the community, returning to prison facilities or community residential facilities during nonworking hours. Such programs are designed to prepare inmates to return to the community in a relatively controlled environment while they are learning how to work productively. Work release also allows inmates to earn income, reimburse the state for part of their confinement costs, build up savings for their eventual full release, and acquire more positive living habits. Those on weekend sentencing programs spend certain days in prison, usually weekends, but are free the remainder of the time. Both of these types of sentences are known as "intermittent incarceration." Violent offenders and those convicted of drug offenses are usually excluded from such programs by the courts. In Ohio and North Carolina, inmates can work in apprentice programs arranged with private industry to earn certification in such skilled trades as printing and construction.
Work-release programs seem to help prisoners once they return to society. In the study Baltimore Prisoners' Experiences Returning Home (Washington, DC: Urban Institute, March 2004), it was found that "those who found jobs after release were more likely to have participated in work release jobs while incarcerated than those who did not find jobs." A related Urban Institute publication, Chicago Prisoners' Experiences Returning Home (December 2004), revealed the same advantage of work release participation.
Shock Incarceration (Boot Camps)
Shock incarceration is another name for reformatories or "boot camps" operated under military discipline for juveniles and adults. The name comes from William Whitelaw, British Home Secretary (1979–83), who called for a "short, sharp shock" that would end teenagers' criminal careers. Boot camps established in Great Britain attracted youths who liked the challenge, but the facilities did not lower the recidivism rate according to testimony presented to the British Parliament by corrections officials in February 2002 (http://www.parliament.thestationery-office.co.uk/pa/cm200102/cmselect/cmpubacc/619/2021110.htm).
According to Alexander W. Pisciotta in Benevolent Repression (New York: New York University Press, 1994), the prototype of such a facility in the United States was established at the Elmira Reformatory in New York as far back as 1876. The first modern, correctional boot camp was established in Georgia in 1983. Faced with unprecedented overcrowding in its prisons and jails, Georgia was looking for alternatives to incarceration for adult offenders. Oklahoma began its program in 1984 and, by the end of 1988, fifteen programs were operating in nine states. The majority of programs started in the 1990s. By 1998, thirty-three correctional agencies (state and federal) operated forty-nine camps for adult inmates. Sentences are usually short (three to five months) and intended to be rehabilitative by instilling self-respect and discipline in the offender.
Boot camps are intended to be both punitive in their rigid discipline and rehabilitative in the self-esteem they claim to confer upon successful completion of the program. Shock incarceration is intended to motivate prisoners, teach respect for oneself and others, and break destructive cycles of behavior. Virtually all work on the assumption that a military regimen is beneficial.
The major selling points for boot camps have been saving money and reducing prison crowding. However, the major factor contributing to reduced costs and less overcrowding is that the boot camp programs are shorter in duration than traditional sentences, and thus participants are released earlier. In addition, studies of boot camps have indicated that the facilities have not had a major effect on recidivism.
Many adult boot camps claim to be oriented toward developing programs aimed at offender rehabilitation. Typically, boot camp programs include physical training and regular drill-type exercise, housekeeping and maintenance of the facility, and often hard labor. Some programs include vocational, educational, or treatment programs. Drug and alcohol counseling, reality therapy, relaxation therapy, individual counseling, and recreation therapy are often incorporated into such programs. Because some offenders in boot camps have drug problems, many programs devote time to drug treatment each week. Programs closely regulate dress, talking, movement, eating, hygiene, etc. Obedience to rules reinforces submission to authority and forces the prisoners to handle a challenge that is both tedious and demanding.
Community Service Programs
Begun in the United States in Alameda County, California, in 1966 as a penalty for traffic offenses, community service has spread throughout the United States. The penalty is most often a supplement to other penalties and mainly given to "white-collar" criminals, juvenile delinquents, and those who commit nonserious crimes. Offenders are usually required to work for government or private nonprofit agencies cleaning parks, collecting roadside trash, setting up chairs for community events, painting community projects, and helping out at nursing homes. Examples of such civic programs include a California Department of Forestry and Fire Protection project that uses over 1,500 prison inmates as wildland firefighters and the Washington State Corrections Center for Women program in which inmates are taught how to train, groom, and board dogs that can assist people with disabilities.
The BJS in State Court Organization 1998 (June 2000) labeled community service "an exception to unconstitutional servitude," indirectly referring to the Thirteenth Amendment to the Constitution, which states, in Section 1: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." By exempting the involuntary servitude of convicted criminals, the Constitution makes both community service and chain gangs possible.
Under this type of alternative sentence, the offender pays out a monetary sum rather than spending time in jail or prison. Most judges assess fixed, flat-fee fines sparingly. The fees are tied to the seriousness of the crimes and the criminal records of the offenders, and they bear no relationship to the wealth of the offender. As a result, judges often think the fixed fines are too lenient on wealthy offenders and too harsh on poor ones. Using the day fine alternative, however, permits judges to first determine how much punishment an offender deserves, which is defined in some unit other than money.
For example, a judge decides that the gravity of the offense is worth fifteen, sixty, or 120 punishment units, without regard to income. Then the value of each unit is set at a percentage of the offender's daily income, and the total fine amount is determined by simple multiplication. The fine is paid into the jurisdiction's treasury. Day fines are also used in Europe.
Day Reporting Centers
These centers, known as DRCs, were developed in Great Britain and first instituted in the United States during the 1980s. Intended to allow offenders to reside in the community, such programs require participants to report daily or less frequently.
These programs, designed for persons on pretrial release, probation, or parole, require participants to appear at day reporting centers on a frequent and regular basis in order to partake in services or activities provided by the center or other community agencies. Those sentenced to report to DRCs are often in need of treatment or counseling for drug or alcohol abuse, and most centers provide a wide array of onsite treatment and services. Failure to adhere to program requirements or to report at stated intervals can lead to commitment in prison or jail. Participation at the DRC can also be terminated if the subject is charged with a new crime.
DRCs monitor offenders on the road to rehabilitation. They are also intended to relieve jail or prison overcrowding. Many DRCs operate in distinct phases in which offenders move from higher to lower levels of control based on their progress in treatment and compliance with supervisory guidelines. Most programs run five or six months. DRCs do not generally exclude serious offenders, although many programs appear to select non-serious drug- and alcohol-using offenders. Some DRCs require offenders to perform community service, but the level and type of community service performed varies from jurisdiction to jurisdiction.
Intensive Probation Supervision (IPS)
IPS is another implementation of close supervision of offenders while they reside in the community. Offenders on probation are increasingly people convicted of felonies (rather than misdemeanors), who are sentenced to intensively supervised probation because prisons are crowded, but the offenders require close monitoring. Routine probation, however, was neither intended nor structured to handle this type of high-risk probationer. Therefore, IPS was developed as an alternative to prison or routine probation, with the additional aim of reducing the risk to public safety.
Caseloads of officers assigned to IPS offenders are kept low. In typical programs, the offender must make frequent contacts with a supervising officer, pay restitution to victims, participate in community service, have and keep a job, and, if appropriate, undergo random and unannounced drug testing. Offenders are often required to pay a probation fee. All states had IPS programs in 2005.
House Arrest and Electronic Monitoring
Some nonviolent offenders are sentenced to house arrest (or home confinement) in which they are legally ordered to remain confined in their own homes. They are allowed to leave only for medical purposes or to go to work, although some curfew programs permit offenders to work during the day and have a few hours of free time before returning home at a specified time. The idea began as a way to keep drunk drivers off the street, but quickly expanded to include other nonviolent offenders.
The most severe type of house arrest is home incarceration, where the offender's home is actually a prison that he or she cannot leave except for very special reasons, such as medical emergencies. Home-detention programs require the offender to be at home when he or she is not working. Some offenders are required to perform a certain number of hours of community service and, if they are employed, to repay the cost of probation and/or restitution.
Electronic monitoring works in tandem with house arrest. Electronic monitoring can consist of a small radio transmitter attached to the offender in a nonremovable bracelet or anklet. Some systems send a signal to a small monitoring box, which is programmed to phone a Department of Corrections computer if the signal is broken; other systems randomly call probationers, and the computer makes a voice verification of the prisoner. In some cases, a special device in the electronic monitor sends a confirmation to the computer. More advanced technologies are being applied to electronic monitoring of probationers and parolees, including Global Positioning Systems (GPS) technologies, which uses satellites to keep track of subjects. GPS can help corrections officers ensure that the subject is not violating any territorial restrictions.
Electronic monitoring is often used to monitor the whereabouts of those under house arrest and permitted to be only at home or at work. EMP is sometimes used to ensure that child molesters stay a specified distance from schools. Electronic monitoring costs much less than building new prison cells or housing more inmates. However, close supervision by officers is crucial to the success of any home confinement or electronic monitoring program. Officers must insure that the participants are indeed working when they leave the house and that they are not using illegal drugs. Periodic checks of any electronic monitoring equipment must also be done to see if there have been any attempts to disable the equipment.
According to the National Law Enforcement Corrections Technology Center (Keeping Track of Electronic Monitoring, October 1999), "a properly run electronic monitoring program (EMP) can be a cost-effective, community-friendly program to harbor 'low-risk' offenders."
Residential Community Corrections
These facilities are known less formally as "halfway houses" because they are intended to serve as places where prisoners spend their pre-release time becoming reintegrated into community life. Offenders may also be sentenced to halfway houses directly in lieu of incarceration if their offenses and general profile indicate that they will benefit from the structure and counseling available in such facilities. According to the Bureau of Justice Statistics, halfway houses are frequently used in many states to relieve prison overcrowding.
Residential programs house offenders in a structured environment. Offenders work full time, maintain the residence center, perform community service, and can attend educational or counseling programs. They may leave the centers only for work or approved programs such as substance-abuse treatment. One type of residential program, called the restitution center, allows the offender to work to pay restitution and child-support payments. Centers also regularly test the residents for drugs.
Diversionary Treatment Programs
Probation combined with mandatory treatment programs is an alternative sentence for nonviolent offenders convicted of drug offenses, alcohol abuse, or sex offenses. Sentenced individuals are free on probation but typically are required to attend sessions of group therapy and supervised professional treatment.