A Primer:

Three
Strikes
The Impact After More Than a Decade

LAO
6 0 Y E A R S O F S E RV I C E

Legislative Analyst’s Office	

October 2005

Contents
Introduction............................................................................3
Background............................................................................5
The Legal Evolution of California’s Three Strikes Law.........11
Impact of Three Strikes on the Criminal Justice System ......15
The Impact of Three Strikes on Public Safety........................29
Conclusion—The Future of Three Strikes.............................35

Acknowledgments
This report was prepared by Brian Brown and Greg Jolivette. The
Legislative Analyst’s Office (LAO) is a nonpartisan office which
provides fiscal and policy information and advice to the California
Legislature.
To request publications call (916) 445-4656.
This report and others, as well as an E-mail subscription service, are
available on the LAO’s Internet site at www.lao.ca.gov. The LAO is
located at 925 L Street, Suite 1000, Sacramento, CA 95814.

Introduction
In 1994, California legislators and voters approved a major
change in the state’s criminal sentencing law, (commonly
known as Three Strikes and You’re Out). The law was enacted
as Chapter 12, Statutes of 1994 (AB 971, Jones) by the Legislature and by the electorate in Proposition 184. As its name
suggests, the law requires, among other things, a minimum
sentence of 25 years to life for three-time repeat offenders
with multiple prior serious or violent felony convictions. The
Legislature and voters passed the Three Strikes law after
several high profile murders committed by ex-felons raised
concern that violent offenders were being released from prison
only to commit new, often serious and violent, crimes in the
community.
In this piece, we summarize key provisions of Three
Strikes and You’re Out; discuss the evolution of the law in
the courts; estimate the impact of the law on state and local
criminal justice systems; and evaluate to what extent the law
achieved its original goals. Our findings are based on analysis
of available data, review of the literature on Three Strikes, and
discussions with state and local criminal justice officials.

Three Strikes: A Primer



Background
The Rationale for Three Strikes. Repeat offenders are
perhaps the most difficult of criminal offenders for state and
local criminal justice systems to manage. These offenders are
considered unresponsive to incarceration as a means of behavior modification, and undeterred by the prospect of serving
time in prison. For this reason, longer sentences for this group
of offenders have a strong appeal to policy makers and the
public. Supporters of Proposition 184 argued that imposing
lengthy sentences on repeat offenders would reduce crime in
two ways. First, extended sentences, also referred to as sentence enhancements, would remove repeat felons from society
for longer periods of time, thereby restricting their ability to
commit additional crimes. Second, the threat of such long
sentences would discourage some offenders from committing
new crimes.
Key Features of Three Strikes. The Three Strikes law imposed longer prison sentences for certain repeat offenders, as
well as instituted other changes. Most significantly, it required
that a person who is convicted of a felony and who has been
previously convicted of one or more violent or serious felonies
receive a sentence enhancement. (Figure 1 [see next page] defines several important terms in criminal sentencing law.) The
major changes made by the Three Strikes law are as follows:
•	

Second Strike Offense. If a person has one previous
serious or violent felony conviction, the sentence for
any new felony conviction (not just a serious or violent
felony) is twice the term otherwise required under law
for the new conviction. Offenders sentenced by

Three Strikes: A Primer

Figure 1

Important Terms in Criminal Sentencing
•	 Felony. There are three kinds of crimes: infractions, misdemeanors,
and felonies. Felonies are the most serious type of crime, and
offenders who commit felonies may be sentenced to state prison.
•	 Violent Offense. State law (Penal Code [P.C.] 667.5) defines some
felonies as “violent.” Examples of such felonies include murder,
robbery, and rape and other sex offenses.
•	 Serious Offense. State law (P.C. 1192.7) defines some felonies as
“serious.” Serious felonies include the same offenses as violent
felonies, but also include other offenses such as burglary of a
residence and assault with intent to commit robbery.
•	 Sentence Enhancement. This is additional time added to a criminal
defendant’s sentence for specified reasons relating to the nature of
the crime or the offender’s criminal history. Examples include the
addition of one year for possession of a firearm during the commission of a felony and an additional three years for an offender who
commits a violent felony and who has served a prior prison term for
a violent felony. The Three Strikes law is an example of a sentence
enhancement because strikers receive additional time in prison for
their current offense because of their prior convictions for serious or
violent crimes.

	

the courts under this provision are often referred to as
“second strikers.”

•	

Third Strike Offense. If a person has two or more
previous serious or violent felony convictions, the
sentence for any new felony conviction (not just a
serious or violent felony) is life imprisonment with the
minimum term being 25 years. Offenders convicted
under this provision are frequently referred to as “third
strikers.”

•	

Consecutive Sentencing. The statute requires consecutive, rather than concurrent, sentencing for mul-



Legislative Analyst’s Office

tiple offenses committed by strikers. For example, an
offender convicted of two third strike offenses would
receive a minimum term of 50 years (two 25-year
terms added together) to life.
•	

Unlimited Aggregate Term. There is no limit to the
number of felonies that can be included in the consecutive sentence.

•	

Time Since Prior Conviction Not Considered. The
length of time between the prior and new felony conviction does not affect the imposition of the new sentence, so serious and violent felony offenses committed many years before a new offense can be counted as
prior strikes.

•	

Probation, Suspension, or Diversion Prohibited. Probation may not be granted for the new felony, nor may
imposition of the sentence be suspended for any prior
offense. The defendant must be committed to state
prison and is not eligible for diversion.

•	

Prosecutorial Discretion. Prosecutors can move to
dismiss, or “strike,” prior felonies from consideration
during sentencing in the “furtherance of justice.”

•	

Limited “Good Time” Credits. Strikers cannot reduce
the time they spend in prison by more than one-fifth
(rather than the standard of one-half) by earning credits from work or education activities.

As a result of these provisions, the Three Strikes law significantly increases the length of time some repeat offenders
spend in state prison. For example, consider a defendant who
has prior convictions for assault on a police officer and bur-



Three Strikes: A Primer

Figure 2

Illustrations of Prison Sentencing Under Three Strikes 
Prior Law Versus Current Law
Crimes Committed
Scenarios

New  
Offense

Prior  
Offenseb

Time to Serve in
Prisona
Prior
Law

Current
Law

No Prior Offense
Any felony with:
•	 No prior felony

Burglary of
residence

None

2 years

Same

One prior
burglary of
residence

4.5 years

10.4 years

One prior
assault on a
peace
officer, and
one prior
burglary of a
residence

2 years

25 years to
life

One prior
burglary of
a residence,
and one prior
robbery

7 years

25 years to
life

Second Strike Offense
Any felony with:
•	 One prior
serious/violent
felony

Burglary of
residence

Third Strike Offense
Nonviolent/ nonserious
felony with:
•	 Two prior
Receiving
serious/violent
stolen
felonies
property

Serious/violent felony
with:
•	 Two prior
Robbery
serious/violent
felonies

a	 Assumes the offender (1) receives typical prison sentence for the new offense,
(2) receives sentence enhancements for prior offenses, and (3) earns maximum credits
from participation in work/education programs.

b	 Assumes prior offense resulted in a prison sentence.



Legislative Analyst’s Office

glary of a residence, both considered serious or violent crimes.
Subsequently, he is convicted for receiving stolen property,
a nonserious and nonviolent felony. Before the enactment of
Three Strikes, he would typically have served two years for
the property offense. Under the Three Strikes law, he would be
sentenced to life in prison. Figure 2 illustrates how sentencing
under the Three Strikes law differs from the prior law under
different scenarios of current and prior offenses.



Three Strikes: A Primer

10

The Legal Evolution
Of California’s
Three Strikes Law
	Since the enactment of the Three Strikes law in 1994,
there have been a number of legal challenges to its provision,
summarized in the text box on the next page. The most significant of these challenges concerned the constitutionality of the
measure. Specifically, the Three Strikes law made it possible
for a repeat offender to receive a prison sentence of 25 years
to life for a nonserious or nonviolent felony (for example, petty
theft with a prior), thereby raising legal questions about the
federal Constitution’s Eighth Amendment protection against
cruel and unusual punishment. Related legal challenges also
have argued that Three Strikes violates the “proportionality rule” in sentencing (the idea that “the time should fit the
crime”) because a relatively minor crime committed by a repeat offender could result in a much harsher punishment than
a violent crime committed by a first-time offender. In addition,
the law appeared to grant prosecutorial, or executive, discretion while limiting judicial discretion in sentencing, which
raised constitutional questions about separation of powers. As
a result of these and other concerns, there have been a number
of challenges to various aspects of the law.
	While some court rulings have limited the law, other rulings have upheld most provisions of the law. As regards the issue of cruel and unusual punishment, the U.S. Supreme Court

Three Strikes: A Primer

Three Strikes Legal Milestones
Ewing v. California—Three Strikes Law Not Cruel
and Unusual Punishment.
•	

The Ewing case involved a repeat offender
sentenced to prison for 25 years to life under the
Three Strikes law for stealing golf clubs from a
Los Angeles country club, a nonserious, nonviolent offense.

•	

Ewing argued that the sentence violated the
Eighth Amendment’s prohibition against cruel
and unusual punishment. In the past, the court
had interpreted the Eighth Amendment to prohibit the imposition of a sentence that is grossly
disproportionate to the severity of the crime.

•	

In 2003, the U.S. Supreme Court, in a 5‑4 decision, upheld the constitutionality of California’s
Three Strikes law. The court argued, “Ewing’s
sentence is justified by the State’s public safety
interest in incapacitating and deterring recidivist
felons….” and that “selecting sentencing rationales is generally a policy choice to be made by
state legislatures, not federal courts.”

People v. Superior Court (Romero)—Judges Can
Strike Prior Convictions.
•	

The issue here was whether a judge, under the
authority granted by Penal Code Section 1385 to
dismiss an action in furtherance of justice, may

12

Legislative Analyst’s Office

strike prior felony convictions on his/her own
motion in Three Strikes cases.
•	

On June 20, 1996, the state Supreme Court ruled
that the court has the discretion to dismiss prior
serious or violent felony convictions under the
Three Strikes law.

People v. Fuhrman—Multiple Strikes From Single
Incident.
•	

In the Fuhrman case, the trial court sentenced
Fuhrman to a total prison term of 58 years to
life under the Three Strikes law. The defendant
appealed claiming that the trial court should
have dismissed one of the prior convictions
since both convictions arose from a single court
proceeding.

•	

In 1997, the state Supreme Court upheld the
lower court decision. The court declared that
“because the statutory language was clear and
unambiguous, and because the phrase brought
and tried separately was not expressly mentioned, it was not necessary for the two prior
offenses to result from separate incidents.”

13

Three Strikes: A Primer

ruled in Ewing v. California that it is constitutional to sentence
a repeat offender to an indeterminate life sentence for the
commission of a nonserious or nonviolent felony. In People v.
Superior Court (Romero), the state Supreme Court ruled that
Three Strikes did not eliminate judicial discretion to dismiss
prior serious or violent felony convictions.
Numerous other important issues relating to the implementation of the law have been resolved through the courts. For
example, the courts have determined that “wobblers” (crimes
that can be considered either a misdemeanor or a felony) can
trigger second and third strike enhancements, juvenile convictions can count as strike offenses, and multiple strikes can be
charged from a single crime or incident.
Implications. The major legal issues raised by challengers to the law have now been addressed by the courts, and the
legal outcomes ultimately have had significant implications
affecting the implementation of the law. In particular, the
decisions permitting the application of the Three Strikes law
to nonserious, nonviolent offenses has allowed many offenders to be sentenced to prison for extended periods, costing the
state hundreds of millions of dollars. In addition, the court’s
decision that judges have discretion to dismiss prior strikes
contributes to a pattern of variation in the application of Three
Strikes penalties across counties. These impacts are discussed
in more detail below.

14

Impact of Three Strikes on
The Criminal Justice System
In this section, we discuss the impact of the Three Strikes
law on the state’s prison system, as well as the courts and local
jails.
State Corrections
Impact on the Prison Population. Since its implementation, the Three Strikes law has had a major effect on the makeup of the prison population. Since 1994, the courts have sent
over 80,000 second strikers and 7,500 third strikers to state
prison. (More than half of these second strikers have served
their time and have been released.) As of December 31, 2004,
there were almost 43,000 inmates serving time in prison under
the Three Strikes law, making up about 26 percent of the total
prison population. Of the striker population, more than 35,000
are second strikers, and about 7,500 are third strikers. Figure 3 (see next page) shows the growth of the second and third
striker inmate population from 1994 through 2004. As the figure shows, the striker population in prison grew quickly in the
first years of the law. However, the rate of growth has slowed
significantly in recent years as many second strikers complete
their sentence and are paroled.
In 1994, analysts predicted that Three Strikes would result
in over 100,000 additional inmates in state prison by 2003.
Clearly, that rate of growth has not occurred. A number of
factors have probably contributed to a lower prison population,
including the use of discretion by judges and district attor-

Three Strikes: A Primer

Figure 3

Growth in the Three Strikes Inmate
Population in State Prison
1994-2004
Inmates

45,000

30%

40,000

25

35,000
30,000

20

25,000
20,000

3rd Strikers

15,000

2nd Strikers

10,000

15
10

Strikers as Percent of
Total Population

5,000
94

95

96

97

98

99

00

01

02

5

03

04

neys to dismiss prior strikes in some cases. While courts do
not track how often such discretion is used, some surveys of
district attorneys conducted by Jennifer Walsh of California
State University, Los Angeles, for example, suggest that prior
strikes might be dismissed in 25 percent to 45 percent of third
strike cases, resulting in shorter sentences for those offenders.
Roughly One-Third of Strikers Convicted for Crimes
Against Persons. The most common offenses for which
strikers are currently serving time in prison include robbery,
burglary, assault, and possession of drugs. Approximately
37 percent of strikers were convicted for crimes against persons, such as robbery and assault. Figure 4 shows the striker
population by offense category with the most common offenses listed.
Little More Than Half of Strikers Are Convicted of Nonserious/Nonviolent Offenses. Based on information provided
by the California Department of Corrections and Rehabilita-

16

Legislative Analyst’s Office

Figure 4

Striker Population by Offense Category
(December 2004)
Offense

Total
Third  Second 
Strikers Strikers Number Percent

Crimes Against Persons
Robbery
Assault With a Deadly Weapon
Assault/Battery

3,277
1,706
426
391

12,728
4,886
2,443
2,470

16,005
6,592
2,869
2,861

37%
15
7
7

Property Crimes
1st Degree Burglary
2nd Degree Burglary
Petty Theft With a Prior

2,344
880
466
356

10,391
2,609
1,967
2,007

12,735
3,489
2,433
2,363

30%
8
6
6

Drug Crimes
Possession of a Controlled
Substance
Possession of Controlled
Substance for Sale
Sale of Controlled Substance

1,282

8,654

9,936

23%

677

4,453

5,130

12

302
197

2,282
1,195

2,584
1,392

6
3

671
412

3,463
1,865

4,134
2,277

10%
5

7,574

35,236

42,810

100%

Other Crimesa
Possession of a Weapon

	

Totals

a	 For example, arson and driving under the influence.

tion (CDCR)—formerly the Department of Corrections,
44 percent of all inmate strikers were convicted of a serious
or violent current offense, while 56 percent were convicted of
nonserious or nonviolent offenses. It is likely that these figures somewhat under-report the percentage of strikers whose
current offense activity was actually serious or violent. This
could occur in some cases because district attorneys choose
to prosecute strikers for nonserious, nonviolent offenses that
may be easier to prove in court knowing that the Three Strikes

17

Three Strikes: A Primer

sentence enhancement will still apply. The extent to which
this occurs is unknown. Figure 5 shows the number of striker
inmates in prison convicted for serious and violent crimes as
compared to the number convicted for nonserious, nonviolent
offenses.
Figure 5

Less Than Half of Strikers Are Incarcerated for 
Serious/Violent Commitment Offenses
(December 2004)
Current Commitment Offense
Serious/Violent

Nonserious/
Nonviolent

Totals

Number Percent

Number Percent

Number Percent

Second Strikers 14,608
Third Strikers
4,079

41%
54

20,627
3,496

59%
46

35,235
7,575

100%
100

	 Totals

44%

24,123

56%

42,810

100%

18,687

While more than half of the strikers in prison are there
because their current offenses are nonserious and nonviolent,
strikers do have more serious criminal histories, on average,
than other state inmates. For example, second and third strikers have been convicted for an average of three prior felony
offenses, including an average of two prior serious or violent
felonies. By comparison, the rest of the inmate population has
an average of one prior felony offense, including 0.2 serious or
violent felonies. Figure 6 compares the offense histories of all
strikers—as well as second and third strikers—and other state
inmates.
Even those strikers who are in prison because their current offenses were nonserious and nonviolent have lengthier
criminal histories than nonstrikers. Second and third strikers

18

Legislative Analyst’s Office

whose current offenses are nonserious and nonviolent average
four and five prior felony offenses, respectively, compared to
one prior felony offense on average for the rest of the inmate
population.
Increased Length of Prison Stay. Because the law increases the length of sentences, it has raised the average length
of stay for the prison population. The average time served by
all felons before their first release to parole was 21 months in
Figure 6

Strikers Have Lengthier and More Serious
Criminal Histories Than Other Offenders
Average Number of Prior Felony Offenses
6

Non-Strikers

5

5

4

4

3

3

2

2

1

1
Prior Felony
Offenses

6
5
4
3
2
1

All Strikers

6

Prior Serious or
Violent Offenses

Prior Felony
Offenses

Second Strikers

6

Prior Serious or
Violent Offenses

Third Strikers

5
4
3
2
1

Prior Felony Prior Serious or
Offenses Violent Offenses

19

Prior Felony Prior Serious or
Offenses Violent Offenses

Three Strikes: A Primer

1994, prior to the implementation of the Three Strikes law. By
2004, this average had increased by 19 percent to 25 months.
In part, this increase has occurred because second strikers
serve longer sentences than the average for all prison inmates.
Second strikers released to parole in 2004 served 43 months
on average. The additional time in prison for second strikers
costs the state approximately $60,000 per striker.
In addition, inmates serving life sentences for a third strike
conviction are in prison for longer than would have been the
case in the absence of the Three Strikes law, particularly those
whose current offense is nonserious or nonviolent. The cost
of their additional time in prison because of Three Strikes is
difficult to estimate because many of them would have returned to prison even in the absence of Three Strikes for new
offenses or parole violations. In addition, because third strikers
are serving indeterminate sentences, it is not clear when they
will be released from prison. This decision will be made by
the Board of Parole Hearings (formerly the Board of Prison
Terms) for each inmate. It is worth noting that no third strikers have been released from prison, and the earliest any are
eligible for release to parole is 2014.
Once third strikers become eligible for parole consideration, this will likely create significant additional workload
and require additional resources for the board. The number
of lifer hearings is projected to more than double from about
4,500 held by the Board of Prison Terms in 2003.
Inmate Population Aging. The average age of the inmate
population has risen from 32 to 36 since 1994. Moreover, the
number of inmates 50 years of age and older has increased
from about 5,500 to 16,300 between 1994 and 2004. This aging prison population is likely due to two factors. The first and
probably more significant factor is the enactment of sentencing
laws (such as the Three Strikes law) to provide longer terms,

20

Legislative Analyst’s Office

and in some cases life terms. Such laws, designed to incarcerate offenders for longer periods, result in a larger and older
prison population in the long run. Thus, as the third striker
population grows and ages—probably at least until 2014—the
overall prison population will likely grow older, as well. The
second factor is that the aging of the prison population simply
reflects the aging of the citizenry as a whole. The so-called
“baby boom” generation is getting older, and so are the criminals of the baby boom generation.
The aging of the prison population over the past decade
has the potential for significant fiscal consequences. As inmates age, the cost of housing them increases due to age-related illness and the associated health care costs, as well as
the security and transportation costs of moving these inmates
between prisons and local hospitals. Estimates are that housing and caring for elderly inmates costs between two and three
times more than the $35,000 it costs in 2005-06 to incarcerate
the average inmate. Therefore, as the striker population continues to grow and age in prison, the state costs to incarcerate
them will also continue to escalate.
Racial Composition of Strikers. African Americans make
up the largest group of second and third strikers (37 percent),
followed by Hispanics (33 percent), and whites (26 percent).
This racial composition is similar to that in the total prison
population. However, African Americans make up 45 percent
of the third striker population, which is 15 percent higher than
in the total prison population. Figure 7 (see next page) shows
the racial composition of the striker population.
Changes to Parole Supervision. Since about 2000, the
CDCR has altered how it supervises parolees who have two or
more serious or violent felony convictions on their record—
those for whom their next felony conviction would make them
eligible for a third strike sentence. Specifically, the department

21

Three Strikes: A Primer

Figure 7

Second and Third Strikers in the
Inmate Population by Race
December 2004
Other
White

African American

Hispanic

has developed second striker caseloads where parole agents
specialize in supervising these parolees on reduced caseloads.
The purpose of creating these specialized caseloads, according to the department, is to allow parole agents to more closely
monitor these parolees and provide services that could assist in
preventing parolees from reoffending and receiving third strike
convictions. The department reports that as of March 2005,
there were almost 12,000 parolees on second striker caseloads.
The additional cost to supervise these parolees in specialized
caseloads is approximately $20 million annually.
What Has Three Strikes Cost the State? Analyses in
1994 suggested that the Three Strikes law would result in additional state prison operations costs of a few billion dollars
annually by 2003, increasing to $6 billion dollars annually by
2026 as the full impact of the law was realized. There would

22

Legislative Analyst’s Office

also be one-time prison construction costs totaling $20 billion
by 2026 necessary to house strikers in prison.
It now appears that these estimates were high. The budget
for CDCR has increased by about $3 billion since 1994-95,
but much of this growth can be attributed to costs unrelated
to Three Strikes, such as increased medical costs and higher
numbers of parole violators returned to prison. In fact, the
current cost of housing strikers is approximately $1.5 billion
annually. However, many of these offenders would be in prison
for their current or a subsequent offense even in the absence of
Three Strikes. Taking this into consideration, we estimate that
the additional operating costs resulting from the Three Strikes
law is about one half billion dollars annually. The primary reasons for the difference between early estimates and the fiscal
impact that has actually occurred are (1) the use of judicial
discretion to dismiss prior strikes, and (2) variation among
counties in how often they prosecute offenders under the
Three Strikes law. Both of these factors—discussed in more
detail later in this piece—have reduced the number of inmates
who have been sentenced under Three Strikes compared to
what would have occurred if such judicial and prosecutorial
discretion were not allowed.
As regards prison construction costs, the state has not
built any new prisons specifically for striker inmates. The
department has activated seven new prisons (and deactivated
another) to accommodate the total growth in the prison population since 1994. The total capital outlay costs for these seven
prisons was $1.8 billion. However, it is difficult to identify the
portion of these costs that is attributable to Three Strikes. Only
a portion of the total growth in the inmate population is attributable to Three Strikes. Also, all of these prison construction
projects, with the exception of one (Kern Valley State Prison),
were planned even before the passage of Three Strikes. In

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Three Strikes: A Primer

addition, the department utilizes more double-celling, as well
as double- and triple-bunking in dorms, thereby reducing the
amount of construction that might otherwise have occurred.
In addition to direct prison costs, the Three Strikes law
may have also had indirect fiscal impacts on state and local
governments. For example, some offenders who are incarcerated for longer periods under Three Strikes are unable to
commit additional crimes that result in victim-related government costs (for example, health care costs). Alternatively, there
could be foregone tax revenue to the extent that some offenders incarcerated under Three Strikes might have paid some
taxes otherwise. The extent and magnitude of these impacts is
unknown.
Courts
Application of the Law Varies by County. Based on
discussions with representatives of the courts and district attorneys offices, we conclude that local county justice systems
have developed various strategies for handling their Three
Strikes caseloads, based on different policy priorities and fiscal
constraints. Thus, the manner in which the law is implemented
at the local level by prosecutors and judges varies across counties. In some counties, for example, prosecutors seek Three
Strikes enhancements only in certain cases, such as for certain
types of crimes that are particular problems in their county or
where the current offense is serious or violent. In other counties, prosecutors seek Three Strikes enhancements in most
eligible cases. Similarly, judges vary in how often they dismiss
prior strikes, based on discretion afforded to them under the
Romero decision. In addition, variation in the application of
Three Strikes not only exists across counties, but can also occur within counties. In particular, prosecution practices change
over time as counties experience turnover of district attorneys

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Legislative Analyst’s Office

and judges and as they develop new methods for handling
Three Strikes cases.
One way to gauge the extent to which prosecutorial and judicial discretion is used in the application of the Three Strikes law
is to examine the rate at which strikers are sent to prison from
various counties. Figure 8 shows, for the 15 largest California
counties, the number of strikers in prison per 100,000 felony arrests for each county. (These counties account for about 90 percent of the state’s striker population.) In total, this rate gives a
measure of the likelihood of incarceration in each county under
Three Strikes, regardless of county size or crime rate. As the
data in Figure 8 (see next page) show, there is considerable
variation among counties in the likelihood that an offender who
is arrested would be prosecuted and convicted under the Three
Strikes law. For example, Kern County with 1,518 strikers per
100,000 adult felony arrests is over 13 times more likely to send
an arrestee to state prison with a strike enhancement than San
Francisco County (113 strikers per 100,000 adult felony arrests).
It is important to note that there may also be differences
in crime patterns, as well as law enforcement strategies and
priorities, that could contribute to the variation in the rate of
Third Strikes sentences among counties. For example, the
percentage of crimes that are serious or violent can vary from
county to county, thereby resulting in differences in the percent of offenders who are eligible for prosecution under the
Three Strikes law.
More Cases Going to Trial. The rate of felony cases decided by jury trial increased almost 10 percent after the enactment of Three Strikes. While courts do not track striker cases,
it seems likely—based on our discussions with district attorneys, judges, and others—that the Three Strikes law has been
one of the primary causes for this increase in the rate of cases
going to trial. According to court professionals, many

25

Three Strikes: A Primer

Figure 8

Rate of Striker Commitments Vary by County
(December 2004)
Strikers
County
Kern
San Diego
Los Angeles
Riverside
Santa Clara
Sacramento
San Joaquin
San Mateo
Fresno
Orange
San Bernardino
Ventura
Contra Costa
Alameda
San Francisco

Third
390
613
2,958
333
431
457
104
81
171
366
504
67
79
116
35

Second
1,263
3,527
14,043
1,809
1,353
1,574
731
366
907
1,796
1,924
475
323
507
196

Total
1,653
4,140
17,001
2,142
1,784
2,031
835
447
1,078
2,162
2,428
542
402
623
231

Rate of Strikers in
Prison (Per 100,000
Adult Felony Arrests)
1,518
1,357
1,327
1,205
1,205
1,003
917
871
865
849
824
803
355
323
113

defendants do not plea bargain their striker cases. This is
because even a defendant who agrees to a plea is still likely to
receive a lengthy sentence. For this reason, many choose to go
to court in the hopes of avoiding a conviction altogether. This
trend towards cases being resolved more frequently by trials
and less by plea bargains requires greater court resources for
criminal cases.
County Jails
More Pretrial Inmates. More criminal cases going to trial
under the Three Strikes law has resulted in a similar increase
in the number of inmates held in local jails. Between 1993 and
2004, the number of jail beds filled with pretrial inmates has

26

Legislative Analyst’s Office

increased by about 16,000 beds. This reflects an increase of
about 14 percent in the percent of jail beds filled by pretrial
inmates. Some unknown amount of this increase is likely due
to Three Strikes. In particular, these are inmates who, in the
absence of Three Strikes, would have had their cases resolved
relatively quickly by plea bargain and would already have been
transferred to state prison.
According to a 2004 report by the Corrections Standards
Authority (CSA), formerly the Board of Corrections, the
increase in the proportion of pretrial inmates has significant
implications for operating costs of jails because these inmates
are often assigned to higher levels of security and require more
resources as they go through the legal process. The amount
of additional costs for county jails to hold pretrial inmates is
unknown.
It should be noted that, even as more pretrial inmates are
in jail, the number of inmates released from jails early due to
overcrowding actually declined by 45 percent between 1995
and 2004, based on a report by the CSA. This finding suggests
that jails have been able to accommodate the additional workload from Three Strikes.
Summary of Impact of Three Strikes on Criminal Justice System. Three Strikes has increased the sentence length
of a significant proportion of the inmate population, resulting
in a growing and aging prison population. The fiscal impact
of the measure has been significant at both the state and local
level. We estimate that the additional state operational costs
resulting from Three Strikes are about one half billion dollars
annually, and the state will likely face significantly higher future costs resulting from this measure as the striker population
continues to grow and age. In addition, local courts and jails
face unknown, but significant increased costs for prosecuting
and incarcerating offenders tried under the Three Strikes law.

27

Three Strikes: A Primer

28

The Impact of Three Strikes
On Public Safety
Projected Public Safety Impact. The primary justification
given by supporters for the Three Strikes law was that it would
reduce crime in California in two ways. First, the law would
remove repeat offenders from communities for longer periods
of time, eliminating the possibility that they could commit
new crimes during that period—referred to as an “incapacitation” effect. Second, some advocates of Three Strikes suggested that the severe punishment options associated with the law
would deter some potential offenders, thereby preventing some
crime that might otherwise occur—a deterrent effect.
Crime Rates Since 1994. The overall crime rate in California, as measured by the Department of Justice’s California Crime Index, began declining before the passage of the
Three Strikes law. In fact, the overall crime rate declined by
10 percent between 1991 and 1994. The crime rate continued
to decline after Three Strikes, falling by 43 percent statewide
between 1994 and 1999, though it has risen by about 11 percent since 1999. Similarly, the violent crime rate declined by
8 percent between 1991 and 1994 and then fell an additional
43 percent between 1994 and 2003. It is important to note that
these reductions appear to be part of a national trend of falling
crime rates. National crime rates—as reported by the Federal
Bureau of Investigation’s Uniform Crime Report—declined
31 percent between 1991 and 2003, with violent crime declining 37 percent over that period. Researchers have identified a

Three Strikes: A Primer

variety of factors that probably contributed to these reductions
in national crime rates during much of the 1990s including a
strong economy, more effective law enforcement practices, demographic changes, and a decline in handgun use. The overall
crime trend for California since 1952 is seen in Figure 9.
Estimated Public Safety Impact of Three Strikes. The
principle difficulty in accurately evaluating the public safety
impact of Three Strikes is distinguishing between the impact
associated solely with the initiative and changes that would
have occurred in the crime rate in the absence of Three
Strikes. In other words, if Three Strikes had not been enacted,
would crime rates have continued to fall anyway? Or, did
Three Strikes accelerate the pace or lengthen the duration of
these declining crime rates?
Our survey of the literature, as well as discussions with
leading criminologists, found that there is little consensus
Figure 9

California Crime Rate
Rate Per 100,000 Population
1952-2003

1994: Implementation
of Three Strikes Law

5,000
Total

4,000

Property
Violent

3,000
2,000
1,000

52

57

62

67

72

77

30

82

87

92

97

02

Legislative Analyst’s Office

among researchers about the impact of Three Strikes on public
safety, even after more than ten years of application. Some
early reports attributed much of the drop in crime in the mid1990s to the Three Strikes law. For example, reports issued
by the Attorney General in 1998 and the Secretary of State in
1999 asserted that the dramatic decline in California crime
rates following the implementation of Three Strikes clearly
demonstrated its positive impact on public safety. The Attorney General’s report also noted that though crime rates were
dropping nationwide, California’s crime rates dropped even
more than those of other states after 1994.
Other analyses, including research by the RAND Institute,
have cast some doubt on these early reports, as well as the subsequent impact of Three Strikes on public safety. A variety of
reports by academic researchers suggest that the measure has
likely had a modest impact on the state’s crime rate, which is
not nearly as large as early projections estimated. For example,
a study by James Austin and colleagues at George Washington
University analyzed the difference in enforcement of the Three
Strikes law across counties. If Three Strikes works as intended, one would expect that those counties that used the law
more often would experience significantly greater reductions
in crime than those that did not use it as often. However, the
county comparison study did not find significantly different
outcomes across different counties, suggesting that the Three
Strikes law was not the primary cause of the significant drop
in crime after 1994.
Figure 10 (see next page) compares the crime rates for
eight California counties in 1994 and 2003. These counties
represent the four counties that have the highest commitment
rate of second and third strikers as well as the four counties
with the lowest commitment rate (see Figure 8 earlier in this
report). Figure 10 shows that all eight counties experienced

31

Three Strikes: A Primer

reductions in crime rates as measured by the Department of
Justice’s California Crime Index. Also, the reduction in the
crime rate was similar for the two groups. Specifically, the
four large counties most likely to send strikers to prison in the
last ten years (Kern, Los Angeles, San Diego, and Riverside)
have seen crime rates drop by an average of 37 percent from
1994 through 2003. The four large counties least likely to send
strikers to prison (Ventura, Contra Costa, Alameda, and San
Francisco) saw crime rates drop by an average of 33 percent
over the same period.
In addition, violent crime rates declined by about the same
amount in the counties that were less likely to send strikers to
prison as the comparison counties. The violent crime rate in
those counties least likely to send strikers to prison declined
Figure 10

Counties Experience Similar Decreases in Crime
Rates Regardless of Strike Enhancements
1994 Through 2003
Rate Per 100,000 Population

6,000
1994
2003

5,000
4,000
3,000
2,000
1,000

Kern

San
Los Riverside Ventura Contra Alameda San
Diego Angeles
Costa
Francisco
Most

Least
Use of Strike Enhancement

32

Legislative Analyst’s Office

by an average of 45 percent, while the violent crime rate in the
counties most likely to send strikers to prison declined by an
average of 44 percent. Figure 11 shows the downward change
in violent crime rates in these eight large counties.
Unfortunately, there remains no clear consensus about the
public safety impact of the Three Strikes measure. In particular, data limitations (such as the number of offenders eligible
for prosecution under Three Strikes) and the inherent difficulty
of estimating the number of crimes prevented make it difficult
to conclusively evaluate the law’s impact on crime and safety.
For now it remains an open question as to how much safer
California’s citizens are as a result of Three Strikes.
Figure 11

Counties Experience Declines in Violent Crime
Rates Regardless of Strike Enhancements
1994 Through 2003
Rate Per 100,000 Population

1,600
1,400

1994
2003

1,200
1,000
800
600
400
200
Kern

San
Los Riverside Ventura Contra Alameda San
Diego Angeles
Costa
Francisco
Most

Least
Use of Strike Enhancement

33

Three Strikes: A Primer

Why Might Three Strikes Have Had Less of a Public
Safety Impact than Originally Projected? There have been
several explanations given by researchers for why Three
Strikes may not have had as large a public safety impact as
originally predicted. First, the differences in the application
of the Three Strikes law by counties mitigates the full impact
of Three Strikes by reducing the number of offenders who are
sentenced to prison for longer periods. Second, if the state’s
crime rate was declining independently of Three Strikes due
to other criminal justice or societal factors, this trend might
have resulted in fewer Three Strikes eligible cases compared
to earlier projections. Third, some research by Frank Zimring
of the University of California, Berkley and colleagues suggests that strikers as a group commit a relatively small proportion—about 11 percent—of the state’s total number of felonies.
Therefore, the incarceration of these offenders would not have
a large impact on the overall crime rate. Fourth, some criminal
justice research suggests that—for a variety of reasons—the
threat of harsh sentences does not have a significant deterrent
effect on criminal activity.

34

Conclusion—
The Future of Three Strikes
In November 2003, California voters considered Proposition 66, which aimed to significantly revise the Three Strikes
law. In rejecting Proposition 66, voters seemed to reaffirm
their support for the measure. Though the proposition failed to
pass, the level of support for it (47 percent) does suggest some
sentiment among California citizens to reconsider aspects of
the law, including the provision of sentences of 25 years to life
for offenders whose most recent crime is nonserious and nonviolent. The Legislature has also considered similar legislation
in recent years. Should the Legislature or voters act to revise
the Three Strikes law, the impacts could be significant depending on the nature of the changes made. For example, had
Proposition 66 passed, it likely would have resulted in reduced
future prison incarceration costs of several hundreds of millions of dollars annually.
While it now appears likely that the Three Strikes law will
not be revised, at least for the near future, it remains possible
that the local implementation of the current law could change
over time. For example, Three Strikes was enacted and implemented at a time of declining crime rates. This may in part
explain why the number of individuals prosecuted under the
law is not as high as originally anticipated. However, should
the crime rate climb or public concerns about safety grow, the
law could be applied more often at the local level, resulting in
increased state corrections and local criminal justice costs.

Three Strikes: A Primer

As long as the Three Strikes law is applied generally as it
has been since its enactment in 1994, state and local criminal
justice systems will continue to be affected in important ways.
In particular, the prison inmate population will continue to
grow as more second and third strikers are sent to prison. The
number of third strikers will increase until at least 2014 when
the first third strikers will be eligible for parole hearings. The
continued growth, as well as aging, of the striker population
is likely to have significant implications for the prison system
for the foreseeable future, including increased operating and
capital outlay costs.

36