I am particularly concerned that the increased incidence of violent assaults against peace officers is directly related to third strike criminals with nothing to lose.

Richard J. Moak '69

Magazine
Winter 1999

Law & Order in America:
"Remarkable Progress" or the Calm Before the Storm
An online forum on the U.S. criminal justice system

Question 5: Three Strikes and You're Out: Unexpected Consequences

Law School Dean Jim Bond '64 calls the once highly-touted "three strikes" rule mandating imprisonment for all offenders after the third offense the "one rule that is universally derided in the [University of Seattle] law faculty lounge—neither conservative or liberal law professors like it!" Recent articles in national magazines have detailed tragic injustices wrought by the policy, and prosecutors in many states invoke it very selectively because "it is seen as imposing excessive punishment in many cases."

Our panelists turned up two unexpected consequences of the "three strikes" rule:

I am particularly concerned that the increased incidence of violent assaults against peace officers is directly related to third strike criminals with nothing to lose.

Unfortunately, many of these assaults are unprovoked, since the mind-set of the criminal is not to be taken in for a third strike, while the officer may be making what he believes is a routine traffic stop for a minor vehicle code infraction!

Richard J. Moak '69

The three-strikes law can be used by prosecutors as a bargaining chip to persuade defendants to plead guilty despite potential weaknesses in the state's case—weaknesses that are unrelated to the actual guilt of the defendant.

Without the risk of a heavy sentence upon conviction, a defendant may be more inclined to roll the dice at trial in the hope that a witness will not show up for example. This risk is less likely to be taken if the enhanced sentence [of a three-strikes-law] is a possibility.

So, the sentence enhancement is a tool that enables efficient settlement: the State agrees to withdraw the enhancement and the defendant pleads to a reasonable sentence in the underlying case. I am much more likely to use the enhancement statute in this manner than I am to use it to force a defendant to receive an extremely harsh sentence.

Todd Shellenbarger '87
Deputy Prosecutor, Porter County, Indiana

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