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Will Sentencing Reform Come to California’s Three Strikes Law?

As attorneys focused on criminal defense, we have seen the disastrous effects of California’s Three Strikes law. Some offenders deserve their long sentences behind others, but in other cases, the potential verdict does not match the crime, or the person accused.

Three-strike laws may seem appropriate on the surface to some as they affect repeat offenders. Yet what looks good on paper does not always translate as intended when put into practice. Adults can be sentenced to life behind bars, partly because of “strikes” they incurred as a juvenile. Since the law doesn’t consider the length of time between offenses, a third strike can occur decades after previous offenses.

California does not stand alone. Most states passed similar laws in the 1990s. A federal Three Strikes law was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act. California voters approved its law the same year as the federal legislation.

Since 1994, voter action has amended the original law. Today, additional work is aimed at making further changes or repealing the law altogether.

Three Strikes Law in 1994

The intent of the original law was to “get tough” on crime by significantly increasing the punishment for repeat felony offenders. Anyone convicted of three or more serious or violent felonies received a mandated sentence of 25 years to life.

The law also doubled the prison sentence for someone found guilty of any felony if they had two prior serious or violent felony convictions. Someone convicted of any felony would also receive a doubled sentence if they had one prior conviction for a serious or violent felony.

According to the U.S. Department of Justice, more than 50,000 strike cases were processed in the first six years of California’s law.

The result of the law was that many third and second strikers were sentenced to long prison terms for crimes that were not violent or serious according to the Penal Code.

Violent felonies in California include the following:

  • Murder
  • Voluntary Manslaughter
  • Sodomy
  • Lewd Acts with a Child Under the Age of 14
  • Robbery
  • Arson
  • Attempted Murder
  • Kidnapping

Serious felonies in California include the following:

  • Rape
  • First-Degree Burglary
  • Providing Certain Drugs to a Minor
  • Carjacking
  • Grand Theft
  • Witness Intimidation
  • Discharge of a Firearm in an Inhabited Building
  • Sexual Abuse of a Child

Three Strikes Law Today

Over time, more justice reform advocates saw that many nonviolent felonies were incarcerating people to long prison sentences. Supporters of sentencing reform began targeting much of their work toward reforming California’s Three Strikes law. They believed the original intention of the law was to focus solely on serious and violent felonies. Lower-level felonies should not be included as a strike.

The result of their reform movement was the passing of Proposition 36 on Nov. 6, 2012.

Prop 36 amended the Three Strikes law in the following ways:

  • No longer could any felony lead to a sentence of 25 years to life. Third strikes now must be a serious or violent felony with two or more prior strikes to qualify for this extended sentence.
  • Anyone currently serving a prison sentence based on the old sentencing guidelines can petition for a reduction of their term if they would have been eligible for second strike sentencing under the new law.

Second-strike offenders will still receive a doubled sentence for any felony if the previous conviction was for a serious or violent felony. They also must serve at least 80% of their sentence. A third-strike offender can be eligible for parole after serving 25 years.

Serious and violent crimes committed as a juvenile still count as strikes.

Potential Future Three Strikes and Sentencing Reforms

A seven-person committee was formed in 2020 to examine the state’s incarceration rates and make policy suggestions based on what they learn. The group includes lawmakers, former judges, and criminal law scholars.

The group released their recommendations in a 2020 annual report:

  • Eliminate incarceration and reduce fines and fees for certain traffic offenses.
  • Require that short prison sentences be served in county jails.
  • End mandatory minimum sentences for nonviolent offenses.
  • Establish that low-value thefts without serious injury or use of a weapon are misdemeanors.
  • Provide guidance for judges considering sentence enhancements.
  • Limit gang enhancements to the most dangerous offenses.
  • Retroactively apply sentence enhancements previously repealed by the Legislature.
  • Equalize custody credits for people who committed the same offenses, regardless of where or when they are incarcerated.
  • Clarify parole suitability standards to focus on the risk of future violent or serious offenses.
  • Establish a judicial process for “second look” resentencing.

Its work resulted in six laws that went into effect in 2021. Among the laws was the ending of mandatory sentence minimums for nonviolent drug offenses.

The Committee on the Revision of the Penal Code released new recommendations in December 2021:

  • Strengthen California’s mental health diversion law.
  • Encourage alternatives to incarceration.
  • Expand CDCR’s existing reentry programs.
  • Equalize parole eligibility for all offenses.
  • Modernize the county parole system.
  • Repeal the Three Strikes law.
  • Create a review process for people serving sentences of life without the possibility of parole.

The committee recognized that their recommendation to repeal the Three Strikes law in its entirety is a tall order. Doing so would require another ballot initiative, like the one in 2012, or a two-thirds majority vote in both houses of the state legislature. A smaller step, they said, would be eliminating juvenile adjudications from three strikes.

Their recommendations and other reforms may be challenging to implement. The recent Assembly Bill 1127 by Assemblymember Miguel Santiago did not move forward. The bill would have prohibited juvenile adjudications from being considered a strike and could be applied retroactively. Those serving a three-strike sentence with a juvenile adjudication could petition for resentencing.

A California Repeal Three-Strikes Law Initiative may appear on the Nov. 8, 2022, ballot as an initiated state statute. The Golden State is one of 21 states that provide for some form of citizen-initiated state statutes.

Three Strikes Defense

If you are facing felony charges and have a prior felony conviction, you must have tenacious and experienced legal counsel to protect your rights. We have more than 100 years of collective experience in complex and high-profile criminal cases.

Our previous experience as a prosecutor provides additional insight into how to best craft a strong defense for our clients.

To discuss your criminal defense, schedule a no-cost consultation with one of our skilled attorneys. Complete our online form or call (949) 251-0330 today.