Three Strikes

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Mass incarceration didn’t occur overnight. It was a system created over a 40-year period, by many different actors: politicians, legislators, the police, corrections officers, prosecutors, judges, voters, citizens, who all moved toward the creation of a more punitive system. This system is characterized by more arrests, more crimes punishable by imprisonment, longer prison sentences, more aggressive prosecutions, reduced eligibility for parole, and more money spent on prisons.

These policies were adopted in part in reaction to a spike in crime, but expanded even after crime began to decline. They were also driven by the belief that criminality was the result of moral failing and that such behavior was largely unable to be reformed. According to politicians, the appropriate response to public safety threats was punishment and control. These conditions gave rise to mandatory minimum sentences and three-strikes laws, which along with the power of prosecutors, are seen as drivers of mass incarceration.

Mandatory minimum sentences require automatic minimum prison terms for certain crimes. Judges cannot lower these sentences, even in extenuating circumstances. Between 1975 and 1996, they  were the most frequently enacted change in sentencing law in the United States. One of the best known examples of mandatory minimums came out of  President Reagan’s 1986 Anti-Drug Abuse Act. According to this act, anyone charged with drug offenses involving 100 grams of heroin, 500 grams of cocaine or 5 grams of crack cocaine, would automatically be sentenced to five years in prison. Three-strikes laws are a type of mandatory minimum under which persons convicted of a third felony typically face a required minimum 25-years to life in prison. The three-strikes law was passed as part of President Clinton’s 1994 Crime Bill.

Mandatory minimums also shifted power from judges to prosecutors, who are seen as a driver of mass incarceration. Prosecutors, also known as district attorneys (DAs), have enormous discretion over which cases to charge or drop, and which charges to pursue. They can decide whether to charge a person for a crime that comes with a mandatory minimum, which could result in a long prison sentence in the case of a guilty verdict, or they can force a guilty plea on a lesser charge out of someone who is innocent, in exchange for less prison time. Prosecutors in the U.S., unlike most countries, are elected, and usually based on their “tough on crime” platforms, so they have a strong incentive to get as many convictions as possible. According to John Pfaff, author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, the rate of admissions into prison have skyrocketed since the 1980s and this is due to the charging decisions of prosecutors.