The Effectiveness of a Three Strikes Law

Topics: Criminal law, Three strikes law, Crime Pages: 5 (1752 words) Published: August 27, 2012
The Effectiveness of a Three Strikes Law

Opponents and proponents of Three Strikes Laws argue vehemently for its effectiveness in deterring crime, and, conversely, for its ineffectiveness and economic imprudence. This study proposes to sift through the relevant constitutional amendments and examine the sentence structure of the law vis-à-vis fairness and justice. In short, does a Three Strikes Law sentencing structure achieve its goals without exceeding its authority? Goals of Sentencing

The goals of sentencing, like the goals of the penal system itself, have shifted since the nascent days of our current system of justice. Today, most legal analysts recognize five goals of sentencing.

Deterrence is a theory based on fear of consequences (MOJ 3.2, 1998). General deterrence is the belief that a harsh penalty for a particular crime will dissuade others in society from committing that crime. Specific deterrence is the belief that imposing a harsh sentence upon a particular individual will discourage him/her from every offending again. Incapacitation is the theory that a person cannot commit a crime if he/she is incarcerated. Selective incapacitation is recommends harsh sentencing for recidivist offenders and those who have committed particularly heinous crimes. Collective incapacitation recommends a lengthy sentence for those who commit a particular type of crime. Rehabilitation is based on the belief that people commit crimes as a result of environmental or historical influences. The theory of rehabilitation attempts to take these factors and the individual person who committed the crime into consideration for sentencing. Retribution is a punitive theory that is a “just desserts” or “eye for an eye” approach. Restitution places the victim squarely at the center of the sentencing phase of a crime. Restitution sentencing promotes the idea that the person convicted of a crime should make reparations (money restitution, an apology, etc.) to the victim. Types of Sentences

The three primary types of sentencing are indeterminate, structured, and mandatory. Indeterminate sentencing considers such factors as motive, offender’s history, damage inflicted, offender’s mental state, and likelihood of successful rehabilitation when determining sentencing. Structured sentencing refers to a model of criminal punishment that includes determinate sentencing schemes. Mandatory sentencing mandates specific sentences or sentence ranges for specific crimes. Constitutional Amendments

The 5th Amendment includes four rights that relate to criminal prosecution. First, with a few exceptions for military or active militias, a person cannot be imprisoned for “capital, or otherwise infamous” crime unless indicted by a Grand Jury. An infamous crime equates to a felony (Brown 2012). Second, the oft recited double jeopardy clause prevents the government from trying a person twice for the same offense once acquitted or convicted for that offense. It also prohibits a person from punished more than once for an offense, and in certain situations, it guards against prosecution after a mistrial. Third, the 5th Amendment guards a person’s right against self-incrimination. In order to “take the 5th” the person must be in custody or within a court proceeding. The fourth clause states that a person may not be “deprived of life, liberty, or property without due process of law. Due Process refers to a proper court proceeding as stipulated by the 6th Amendment. The 6th Amendment concerns the rights of the accused during a legal proceeding. Eight rights are specifies. The right for a speedy trial; the right for a public trial; the right to be tried by an impartial jury; the right for the venue of the proceedings to be determined by the place where the crime was committed; the right to know the nature and cause of the accusation for which he/she is being tried; the right to confront any accuser; the right to compel any witness in his favor...

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Lubitz, R. & Ross, T. (2001). Sentencing Guidelines: Reflections On the Future. U.S. Department of Justice, National Institute of Justice. Sentencing & Corrections, 10.
Ministry of Justice-New Zealand. (1998). Rationales and Goals of Sentencing. Sentencing Policy and Guidance-A Discussion Paper.
Brown, Susan. "Federal Grand Jury - "Infamous crimes"--part 1".
Greenwood, P., Rydell, C.P., Abrahamse, A., Caulkins, J., Chiesa, J., Model, K., & Klein, S. (1994). Rand: Three Strikes and You 're Out-Estimated Benefits and Costs of California 's New Mandatory‐Sentencing Law. Publisher: Rand. Santa Monica, CA.
Macallair, D. & Males, M. (1999). Striking Out: The Failure of California 's "Three Strikes and You 're Out" Law. Center on Juvenile and Criminal Justice.
Iyengar, R. (2007). I’d rather be Hanged for a Sheep than a Lamb: The Unintended Consequences of ‘Three-Strikes’ Laws.
Walsh, J. (2004) Tough For Whom?: How Prosecutors and Judges Use Their Discretion to Promote Justice Under the California Three-Strikes Law. Henry Salvatori Center Monograph, New Series, No. 4.
Hellend, E., & Tabarrok, A. Does Three Strikes Deter? A Non-Parametric Estimation. Claremont-Mckenna College.
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