Other States Have Dialed Back Three-Strikes Law

By Carolyn Bick and Richard Sobey and reported by Mournira Al HmoudVicky BrittonSteven GraffTara JayakarCorey Kane and Neal J. Riley

After years of lobbying by law enforcement and victims’ groups, Massachusetts appears on the verge of getting a so-called three strikes crime law that would require those convicted of three violent crimes to serve their entire term – even if it is a life sentence.

If Gov. Deval Patrick’s signs the law now on his desk, Massachusetts will join 26 other states with some type of three-strikes law, most of them enacted between 1994 and the early 2000s.

Although it would seem the Legislature is playing catch up, Massachusetts lawmakers may be even further behind the times.

A Boston University Statehouse Program review found that nearly two-thirds of states that passed three-strikes laws in the 1990s have revised them, reducing maximum sentences and giving  judges more latitude in sentencing habitual offenders.

Moreover, statistics from the National Institute of Justice, the U.S. Department of Justice’s research agency, show that the harsher sentences envisioned under these laws were seldom invoked.

“For most of the states, passing three-strikes laws was an exercise in symbolic policy-making,” said Jennifer Walsh, an Azusa Pacific University professor, who has written a book on the three-strikes movement. “It gave lawmakers an opportunity to appear tough on crime.”

As Patrick considers the bill, he faces strong lobbying from both sides of the debate.

The legislation is supported by family victim groups, the Massachusetts Police Association and prosecutors. All say the bill would prevent horrendous deaths such as the 1999 death of Melissa Gosule, who was murdered by a repeat offender and Woburn police officer John Maguire, who was killed by a repeat offender on parole from three life sentences.

Civil rights and prisoner rights groups remain opposed to the bills they say would eliminate leniency in special cases, push the innocent to plead guilty to lesser charges and swell the state’s prison population.

“The long-term consequence would be an average of approximately 2,700[more] prisoners in the Department of Correction,” says James Pingeon, a lawyer with Prisoners’ Legal Services.

But the experience in other states suggests the law will have little impact and likely face revision.

The National Conference of State Legislatures, which tracks legislative actions and consequences, says 16 of the 26 states with three-strikes laws have moderated some aspects of the law to allow for lesser sentences. In many states the stricter sentences were rarely applied even before the laws were changed.

–         Connecticut passed a law in 1994 allowing judges to sentence third offenders to life in prison. According to a National Institute of Justice study in 2004, the state sent one person to prison under the law in the first 10 years. The state amended its law in 2008 to allow for more judicial discretion, shifting from mandatory maximum prison terms to a range of sentences based on the offense.

–         In 2001, the Louisiana Legislature removed mandatory sentences for some nonviolent offenses and cut many drug sentences in half to save about $60 million, according to a report from the Vera Institute of Justice, an independent organization that studies  incarceration issues.

– In 2010, South Carolina adopted an omnibus crime bill that increased the number of crimes that qualified as a strike, but also joined at least 10 other states that give judges more discretion in determining when to apply a strike, according to the conference.

– Georgia and Florida have been the exception. With 7,631 inmates in Georgia and 1,628 in Florida facing longer terms. Florida has since trimmed back on its law.

Other states that have eased their three-strikes laws include Colorado, Kansas, Maryland, Montana, Nevada, New Jersey, and Wisconsin.

In November, Californians will vote on a ballot question to require a third strike to be for a serious or violent crime.

Alison Lawrence, policy specialist at the National Conference of State Legislatures, said there is no one reason states have changed their laws.

“States are always re-examining their laws to make sure they fit the principles of sentencing and you can’t attribute one single reason to it,” she said.

Under the pending Massachusetts bill, offenders charged with a third violent offense could have to serve the full term of their sentence without hope for an earlier parole. The bill covers 40 different crimes as violent offenses including murder and manslaughter, illegal sale of firearms, and distributing child pornography.

Massachusetts already has a habitual offender law that requires someone convicted multiple times serve at least half of his or her sentence before becoming eligible for parole.

The new law would create two classes of habitual offenders. Both would serve longer sentences.

A person convicted as a first-class offender – defined as someone with a total of three crimes listed under the law – would serve the maximum sentence for a crime, without parole eligibility. A second-class offender – a definition that considers the length of prior sentences and not the crime itself – would serve at least two-thirds of the sentence before becoming eligible for parole.

Lawrence said the Massachusetts law would not be unusually harsh, even when compared to states that have relaxed their initial legislation.

“Having violent offenders serve a longer time under a three-strikes policy than nonviolent offenders is similar to many other state laws,” she said.

To balance the impact on state prisons the bill reduces mandatory minimum sentences for some nonviolent drug offences. But the reductions would amount to only a year or two off current sentences, not enough to offset the impact of the three-strikes provisions.

Central to the debate over the bill are the changes the three-strikes provision would have on criminal sentences and the impact those sentences would have on the state’s criminal justice system, prison population and resulting costs.

According to a report by the state Sentencing Commission, which analyzed 2009 data, 235 people would have fallen under the House’s version of the three-strikes law in that year with 28 considered first-class offenders. The Senate bill would have affected 307 people with 113 as first-class offenders.

With the DOC’s average cost of housing one inmate at $46,000 per year, the House version could cost the state $57 million more per year if the proposed sentencing laws had been rigidly enforced; the Senate plan would mean an additional $96 million. The state spent $431 million to keep 9,387 people incarcerated in 2010.

Such numbers have fueled opponents’ arguments against the legislation. Many point to the impact California’s three-strikes law that, according to a study by that state’s auditor, has added an average of nine years to prisoners’ sentences at the cost of $19.2 billion to the state.

But California does not offer a useful comparison because its three-strikes law mandates maximum sentences for non-violent criminals.

The key issue will be prosecutorial discretion on how to charge a defendant.  Legal experts say district attorneys are likely to offer plea bargain deals for guilty pleas in exchange for charges not covered under a three-strikes law.

“We could definitely see more guilty pleas and fewer trials,” said Peter Elikann, a member of the Massachusetts Bar Association’s criminal defense committee. “Some will be offered a lesser prison time, and by pleading guilty, it wouldn’t be their third strike, and they wouldn’t go to jail forever.”

Maggie Filler, a member of Stanford University’s Three Strikes Project, said that has been the case in California.

“You have no idea how many people decide to plea to a lesser crime and accept a lesser sentence to avoid the three strikes penalty who wouldn’t have gone to prison otherwise,” she said.

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