Overview of the 3 Strikes Law
The 3 Strikes Law is a penal statute, which requires persons charged with three (3) felonies to be sentenced to life in prison without parole if convicted, as opposed to the generally prescribed sentence. There is a general misconception that this law applies to any violation of a Texas Penal Code. This is not accurate. The 3 Strikes Law only applies to the violent felonies as outlined under the Texas Penal Code (i.e. manslaughter, murder, aggravated robbery, aggravated assault and aggravated sexual assault). The purpose of the 3 Strikes Law is to prevent recidivism by repeat offenders; simply put , if a person continues to commit violent felonies, they will be committing them on the unsuspecting public. This law is intended to protect innocent people from individuals who are likely to engage in habitual violent behavior by keeping them off the streets for the rest of their lives (on a non-parole basis). The hope is that taking those habitual and habitual violent (sexual) offenders off the street, that we prevent innocent citizens from being victimized by habitual offenders.
How the 3 Strikes Law Functions in Texas
The 3 strikes’ law in Texas provides that after a third felony conviction, a person will be given a life sentence. "Strike" is a reference to a felony conviction. The statute specifically provides that only convictions for first and second degree felonies will affect the outcome of a subsequent felony conviction. The title to the chapter containing this provision identifies it as the "Three Times a Felon Law."
The statute does not provide any specific range of punishment for the underlying third felony conviction. This is because only the punishment range for that conviction governs. The statute merely affects the range of punishment for a future felony conviction once a person receives their first, second, and third "strikes."
There are three offenses comprising "strikes" under the statute. Accordingly, charges will be enhanced after each felony offense until three have been accumulated. The third qualifying felony conviction then results in an automatic life sentence.
Penalty for Your Third Arrest
Accepting the 3rd Strike in Texas
The penalties for receiving a third strike vary depending on the severity of the strike(s). For example, if an individual received two misdemeanor strikes, the next misdemeanor strike will lead to a class A misdemeanor charge with a fine of up to $4,000 and/or one year in jail. If, however, the previous strikes were felonies the next felony charge will result in a life sentence in prison. This punishment is meant to deter offenders from continuing to commit crimes as they will be subject to a range of severe punishments that range from high fines to a life sentence. Another implication of a third strike is that individuals are no longer eligible for parole or probation for three years after their release from prison. Even if it was a low-level felony, a third strike will prevent an offender from getting parole or probation for a minimum of three years in Texas. The prison sentences for a 3rd strike felony has a wide range. Low-level felonies like a third-time drug possession charge could lead to a minimum sentence of 2 years and a maximum sentence of 20 years as well as a $10,000 fine. However, if an individual receives a third strike for a violent crime such as murder, aggravated assault or robbery they could face a life sentence to be served in a Texas Department of Criminal Justice prison.
Controversy and Criticism
Despite its popularity, it has faced criticism both widely and sharply. Opponents outline its perceived unfairness where the three offenses are unrelated, the punishment is excessive even for violence, and due to the discretion given to prosecutors, who have the power to reduce the number of felonies required for a life sentence. The 3 strikes law in Texas allows a jury to sentence a third felony offender to life or a minimum of 25 years in prison. The decision is up to the jury rather than a judge. In Fisher v. State, the appeal was denied where the defendant argued he could not be sentenced to life imprisonment for aggravated sexual assault of a child, since there was no indication of a previous conviction for an aggravated offense called for by § 12.42(c)(2), but an earlier statute since repealed, § 12.42(c)(1). Of special concern is the howward these laws are to the fast growing prison population in Texas. In 2007, legislators passed a bill that reduces the mandatory minimum for some non violent crimes to twenty years in prison. A committee on criminal justice also proposed a comprehensive package of 38 bills offering non violent offenders who "stay out of trouble" and complete drug and alcohol treatment with a chance to shave a year from their sentences.
Fighting the Third Strike
Challenging a strike accusation typically involves a combination of legal strategies that focus on undermining the validity of the original charges or the second-degree felony charge that results from the first-degree felony verdict.
In some cases, it may be possible to secure a not-guilty verdict on the first-degree felony charge itself, which would prevent it from counting as a strike against the defendant. The attorney may also explore plea deals to reduce the offense so that it does not have higher-level felony status and therefore not add to the defendant’s strike count .
At the sentencing phase, defense attorneys will challenge the presumption that a third strike must equal a life sentence and push for sentencing down to a term that is more compatible with the broader circumstances of the case and the defendant’s background and character. They may highlight extenuating facts about the third felony strike to support an argument for a lesser sentence.
The goal of these legal strategies is to ensure that the defendant has the best possible chance of avoiding the harshest penalties. This may even include an appeal to a higher court in an effort to reduce the felony offense to a misdemeanor and thus eliminate any potential for a strike designation under the law.
While they vary on a case-by-case basis, these strategies provide defendants with the greatest chance of defending against criminal charges in Texas.
Recent Court Decisions/Changes
In 2017, the Texas Senate and House took a very bold step to expand the eligibility under the 3 strikes law for non-violent felony convictions. They passed Texas House Bill 2010, which became effective September 1, 2017, and applies to all non-violent crimes. In Texas, the 3 strikes rule is codified in Penal Code § 12.42, and applies to repeat offenders. If a person is convicted of certain offenses, and has previously been convicted of two "strikes" (previous convictions for crimes punishable by imprisonment in the penitentiary) in the past, and if the third conviction is also an offense punishable by imprisonment in the penitentiary, then that third conviction would result in enhanced punishment ranging from first to third degree felony to a life sentence.
Under the statute, a "previous conviction is a conviction that occurs before trial of the primary offense" and a "prior conviction is a conviction that occurs after trial of the primary offense." See Court of Criminal Appeals of Texas, Brooks v. State of Texas, 357 S.W.3d 361 (Tex. Crim. App.2012). Legally, the question of whether the "3 strike rule" applies or not and whether a prior conviction can be used as a predicate for enhancement is an in-general, pre-trial legal question reserved for the trial judge. See Court of Criminal Appeals of Texas, Munoz v. State of Texas, 852 S.W.2d 43 (Tex.Crim.App.1993).
Current Status of the 3 Strikes Law in Texas
As discussions around prison reform and mass incarceration gain momentum in Texas, the future of the 3 Strikes law faces scrutiny and debate. Critics question its effectiveness in reducing crime rates and argue that it disproportionately affects low-income and minority communities. Some analysts point to the law’s failure to address underlying social issues, such as poverty and lack of access to education, which contribute to criminal behavior, rather than the prevalence of repeat offenders.
Proposals for legislative reforms to the 3 Strikes law continue to emerge, including those that seek to distinguish between non-violent and violent third offenses , replacing mandatory life sentences with more proportionate penalties. Other suggestions indicate eliminating the law altogether, favoring a more rehabilitative approach to non-violent felons’ second and third offense sentencing, to minimize long-term societal costs.
While the Texas legislature recently made some exceptions to the 3 Strikes law for defendants with intellectual disabilities or mental illnesses, many advocates argue that they are not enough. The current political climate will most likely determine the extent to which the 3 Strikes law will evolve in the coming years, at both state and national levels.