Three Strikes Laws and Habitual Offenders

In the early 1990s, states and the federal government began passing "three strikes and you're out" laws. These tough-on-crime measures significantly increased sentences for repeat, violent offenders. As the name implies, three "strikes"—three convictions for certain kinds of offenses—trigger these tough sentences, including life in prison.

What Are Three Strikes Laws? Why Do States Have Three Strikes Laws?

Between 1993 and 1995, 24 states and the federal government implemented three strikes laws. These laws responded to public frustration with the idea that states and the feds released repeat, violent offenders back on the streets too quickly.

Washington and California were the first states to enact three strikes laws. As other states followed, the label of "three strikes" stuck. Despite having the same name, though, states' three strikes laws vary substantially in how they work and who they punish.

How Do Three Strikes Laws Work?

Three strikes laws are similar to repeat offender laws. All states have laws that enhance penalties for offenders who have some kind of criminal history. For example, someone who has already been convicted of driving under the influence (DUI) will likely get harsher punishment if convicted of DUI again.

Three strikes laws, however, are often designed to ensure that certain kinds of offenders receive substantially more severe penalties for reoffending, sometimes up to life imprisonment. Laws and courts sometimes refer to these defendants as "career criminals" or "habitual offenders." These laws may mandate (require) judges to impose the sentence, rather than giving a judge discretion in sentencing. And typically, three-strike penalties are much harsher than general repeat offender enhancements. Instead of adding years to a sentence or increasing the penalty level, three strikes laws may double the sentence, bump up the penalty by say 10, 20, or 30 years, or impose a life sentence.

What Crimes Fall Under Three Strikes Law?

Three strikes laws generally deal with serious and violent felony offenses. Common crimes considered "strikes" include rape, murder, arson, and robbery. But the lists of "strikes" vary by state—some include nonviolent offenses like treason, drug trafficking, felony theft, and bribery. Most states list out the crimes that qualify as strikes. Whereas repeat offender enhancements may apply to all felonies, three strikes penalties generally kick in only for specified offenses.

How Many Felonies Add to Up a Life Sentence?

Despite being known as three strikes laws, the actual number of felonies that trigger an "out" or life sentence differs from state to state. In some states, two strikes or felonies can result in a sentence of life in prison without parole. In others, it takes three or even four strikes to get a life sentence.

Some states impose enhanced penalties after having just one strike on your record—in addition to the maximum sentence imposed after three strikes. For instance, a state's law might double a defendant's sentence upon conviction for a second serious felony and impose a life sentence for a third serious felony conviction.

Can a Strike Be Removed?

In some states, a defendant can request that the judge disregard or dismiss a "strike" prior. For instance, California law permits judges to dismiss or strike the additional punishment for a strike prior in the interests of justice. Judges must explain why they are choosing to exercise their discretion to "strike the strike" on the record. Reasons that weigh in favor of dismissing a strike enhancement include:

• the strike prior is old
• the current offense is connected to mental illness, and
• the defendant was a juvenile at the time of the prior conviction.

(Cal. Penal Code § 1385 (2024).)

A defendant might also be able to challenge the use of a prior felony as a strike if it doesn't meet the statutory requirements. Say the law counts strikes for any felony involving a weapon. A defendant might argue that the jury or judge never made a finding on the record that a weapon was involved.

How Many States Have Three Strikes Laws?

When they were initially enacted, over half the states had three strikes law. Many still have these laws but they've changed over the years. The federal government's three strikes law imposes a mandatory life sentence when:

• a defendant is convicted in federal court of a serious violent felony, and
• has two or more prior federal or state convictions for serious violent felonies or one serious violent felony and one serious drug offense.

(18 U.S.C. § 3559 (c) (2022).)

Criticism of Three Strikes Laws: Unfairly Harsh Penalties

In the years since the initial three strikes laws, many critics opposed these mandatory penalties and called for changes. Stories of life sentences imposed for nonviolent crimes—such as felony theft—prompted many states to pass reforms of their original three strikes laws.

In California, the original law did not require the third strike to be on the list of serious or violent crimes that counted as strikes. Rather, any felony conviction counted as the third strike—even when the felony was elevated from a misdemeanor only because of the offender's prior criminal record. (Lockyer v. Andrade, 123 S.Ct. 1166 (2003).) The law became controversial after the media brought attention to individuals getting life sentences for crimes that would normally only get a few months in jail. California voters have since approved changes to the law multiple times. As of 2024, California allows 25-to-life sentences only in cases involving a third serious or violent felony, instead of any third felony.

State Reforms of Three Strikes Laws

Many states have eliminated the mandatory imposition of the longer three-strikes-triggered sentences, instead allowing judges more flexibility to decide the sentence that fits the crime and the particular defendant. Additionally, common state reforms include:

• not counting nonviolent crimes as strikes
• making the possibility of parole earlier, and
• eliminating life-without-parole sentences.

Talking to a Lawyer

Given the complexity of three strikes laws and the possibility of lengthy sentences, it's critical to consult a criminal defense attorney if you face felony charges. In fact, it's important to talk to a lawyer if you've been charged with any kind of crime, to understand how the law could impact you and begin to navigate the justice system.