Three Strikes Update

I wrote in November about the vote I took against the three-strikes law in the House. The bill was intended to assure that the most dangerous and violent repeat offenders would be kept off the streets, an incontrovertible goal. But the devil is in the details, and, in my view, the bill overshot its goal, sweeping in many lesser offenders.

The House bill was referred to a House-Senate conference committee for reconciliation with a more comprehensive sentencing bill that the Senate had passed.

After a couple of meetings, it seems clear from public statements of the Speaker and the Senate President that the Senate is not going to support the narrow three-strikes bill proposed by the House. The Senate bill includes measures designed to reduce incarceration of non-violent drug offenders and is, arguably, intended to shift prison resources away from non-violent drug offenders towards more violent offenders.

A conference committee report is not subject to amendment on the floor — members have to vote yes or no. Because the House took a narrow first pass at the problem, it would not be fair to members of the House for the conference committee to proceed forward and negotiate a comprehensive sentencing bill. House members did not consider anything but the three-strikes provision in their vote and would have no opportunity to weigh in on the many other important questions in a comprehensive bill.

So, we can expect over the weeks and months to come that a more comprehensive bill will come before the House for debate on the floor. That bill will then go back to the Senate for consideration and things could develop in a number of different procedural directions. But the big picture is this: If a bill is to pass in this session, it is most likely to be a comprehensive bill and that will, almost inevitably, take some months to resolve.

So, in effect, the pure three-strikes bill that the House passed is essentially a statement of interest in sentencing changes. Hopefully, we can get to a much better bill by end of the session.

My personal priority at this stage is to get some good numbers about the impact on prison populations of the different options. Much of the argument — on both sides of the questions, my opinion piece is an example — has so far has been anecdotal.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

10 replies on “Three Strikes Update”

    1. Thank you Will Brownsberger for voting no on this bill.

      Stopping the 3 strikes law is one of the things i’ve been spending a little time on.
      I hope you continue to work on this important cause for proper criminal codes in the Commonwealth. it’s really important–All but 4 white and all Black and Latino legislators, voted yes as did all senators in the first round of this legislation in Dec. There are efforts being made to scale down the crimes that will, otherwise, land people in prison forever.
      Ellen Mass

  1. I support your “no” vote on this bill.

    Sentencing shouldn’t be based on baseball rules. The problem is that arbitrary rules such as this remove the ability of a judge to look at the circumstances of the crime. Would it treat events that happened, say, when someone was in their teens when that person was now in their 40’s as if they happened yesterday? California’s experience with a similar law has been a disaster for their prisons. CA sadly lumped all felonies together so you have people getting life for the scores of petty drug crimes as well as for violent crimes.

    If people are so concerned about serious repeat offenders (who are a small population yet have an effect well beyond their numbers) then a stricter “ratcheting” system may be needed. This is already what we have but maybe it needs to be tightened up.

    Personally I’d rather see the money that would’ve been spent on prison time go towards more intensive monitoring and mentoring after release. Dumping someone out of prison straight out onto the street is a recipe for recidivism.

  2. Here is a report that analyzes the impact of a 3 strikes law on prison populations
    (in California).

    For the full article follow this link:

    Impact on the Prison Population. Since its implementation, the Three Strikes law has had a major effect on the make-up 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.

    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 attorneys 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.

    Second and third strikers 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 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.

    It is worth noting that no third strikers have been released from prison, and the earliest any are eligible for release to parole is 2019.

    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, 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.

    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 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.

    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.

    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.

  3. Thanks, Peter. This is very helpful in identifying some of the dynamics that can affect the costs of sentencing law changes. It certainly confirms that they can be very costly.

    I am very concerned now to reconcile the wide range of cost estimates floating around regarding the current MA proposals.

  4. Thank you so much for doing the right thing on this. You had to buck the leadership and the majority of your colleagues, but you had the courage and understanding of the facts to do so. Please keep us informed on this issue, so we can take appropriate action when the time comes.

  5. Thank you for this update on what we can expect for the bill in the coming months. It was interesting to watch the video with the governor’s comments as well. Let us know when it is time to make calls or otherwise show support.
    Helen Soussou

  6. Hi Everyone,

    We’re writing from the Coalition for Effective Public Safety and passing along information that we hope will be useful to you.

    First of all, from the Blackstonian website, Feb. 2 ,

    “Yesterday the Blackstonian began distributing tens of thousands of copies of a special edition focusing on the proposed “3 Strikes” Habitual Offender Legislation. This special edition features commentary from, Prof. Charles Ogletree (Harvard), Prof. James Jennings (Tufts), NAACP / NEAC, ACLU of Mass, Families Against Mandatory Minimums (FAMM), Coalition for Effective Public Safety (CEPS), Ben Thompson (CJPC), Sen. Will Brownsberger, Hon. Nancy Gertner, Former MA Corrections Comissioner Kathleen Dennehy, Aaron Tanaka of the Boston Workers Alliance (BWA), Prison Legal Services (PLS)….” Lois Ahrens also has a major piece in this newspaper, entitled “A Reckless, Cruel and Costly Path for Massachusetts.”

    And you can also download the newspaper or read it online. Congratulations to Jamarhl Crawford for the timely publication of this special three-strikes publication which he is distributing throughout the state. He can be reached at

    Secondly, attached is a recent article by the Editorial Board of the Massachusetts Lawyer’s Weekly (MLW) which appeared recently in Lawyer’s Weekly. This article points out what Massachusetts will face if we don’t oppose mandatory post-release parole supervision: “inevitable net-widening” and higher rates of re-incarceration, not for new crimes but for parole violations. Plus news articles have been appearing all across the state in print, on radio and TV — in Fall River, Worcester, Springfield and Lowell as well as in the Boston media. ***Don’t forget: we want to encourage you to support good articles and correct media errors by writing Letters to the Editor! Call in or send an email to a radio station or TV station etc. You can also make comments on the website in many cases. It’s clear that our message is getting around the state, so please help out, write responses, pass these emails along, and get others to participate.

    And to that end, we are attaching several recent Prisoners’ Legal Services’ Fact Sheets. Make appointments with your senators and reps NOW.
    1. The CONTACT YOUR LEGISLATORS RIGHT AWAY fact sheet (do not give to a legislator) will be useful to you.
    2. The other fact sheets (particularly the “Crimes to Remove,” “Bill Comparison Chart-Meaning,” and the “Costs Table S.2080” ) should be read before you go to meetings, and you can hand them out to your legislators.
    3. Most of us are: advocating for seriously limiting the number of crimes eligible for a third strike, supporting ending mandatory minimums for those convicted of drug offenses, insisting that Subsection B should read “3 years,” aiming for no mandatory post-release supervision (see Lawyer’s Weekly and Lois Ahrens’ article in Blackstonian for why) and reducing school zones from 1000ft to 100 ft. But if you are not comfortable with those positions, you have the Fact Sheets to help you advocate for specific changes in the bills.

    Third: The February Forum dates (More will be coming on this later in the week). Please try to attend!

    WORCESTER – Wednesday, Feb. 15, 5:30-7:30pm at St. Andrew the Apostle Parish, 5 Spaulding Street,
    Worcester, MA 01603 (btw. Lovell St. & Beaver Brook Parkway, off Maywood St.& Park Ave.) Call EPOCA for transportation options. Contact Steve O’Neill

    LOWELL — Thursday, Feb 16, 7-9pm at Middlesex Community College, Federal Bldg, Assembly Room, 50
    Kearney Square, Lowell MA 01852. Contact: Jean Trounstine

    SPRINGFIELD — Thursday, Feb. 23 at 6pm, Rebecca M. Johnson School, 55 Catherine Street, Springfield
    MA 01109-3505 Contact Jamarhl Crawford, ; Steve O’Neill; or Lois Ahrens,

    Activities coming up on this subject.

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