Report on Mandatory Sentences - Law Reform Commission

the perpetrator has a previous conviction for one of the most serious offences in the criminal calendar,
such as murder, attempted murder, rape, child molestation or a felony involving the use of a firearm. 85
5.48 Under the Californian ‘three-strikes’ regime, probation may not be granted for the current
offence, nor may execution or imposition of the sentence be suspended for any prior offence. 86 Diversion
may not be granted to an offender sentenced under this regime nor will he or she be eligible for
commitment to the California Rehabilitation Centre. 87
5.49 Section 667(f)(2) provides that a prosecuting attorney may move to dismiss an allegation of a
prior conviction for a strike offence in the furtherance of justice or if there is insufficient evidence to prove
the prior conviction. If the court is satisfied that there is insufficient evidence to prove the prior conviction,
it may dismiss or strike the allegation. Section 667(g) aims to limit the discretion of system officials by
prohibiting the use of prior felony convictions in plea bargaining.
5.50 While the Californian ‘three-strikes’ regime has been eased to some extent by the approval of
Proposition 36, the greatly enhanced penalties imposed on second-strike and third-strike offenders
continue to render this law severe. The California State Auditor has estimated that those imprisoned
under this regime serve sentences which, on average, are nine years longer due to the requirements of
the law. 88 Accordingly, certain commentators identify this sentencing scheme as a key contributor to the
well-documented problem of overcrowding in Californian prisons. 89 It is notable that, as of April 2009,
prisoners serving sentences under this regime comprised approximately 25% of the total inmate
population in Californian penal institutions. 90
5.51 In addition to these ‘three-strikes’ provisions, section 667.7 of the Penal Code imposes a
mandatory sentencing regime on “habitual offenders”. Under this regime, a “habitual offender” is defined
as any person convicted of a felony in which he or she inflicted great bodily injury on another person, or
personally used force which was likely to inflict great bodily injury, and who has previously served two or
more prison terms for a specified offence. 91 A habitual offender who has served two prior prison terms
will receive a life sentence for the current offence and, at a minimum, will not be eligible for parole until 20
years have been served. A habitual offender who has served three or more prior prison terms will receive
a sentence of life imprisonment without parole.
5.52 Section 667.71 of the Penal Code establishes a mandatory sentencing regime for habitual
sexual offenders. A habitual sexual offender is defined as a person who has previously been convicted of
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Section 667(e)(C) of the Penal Code.
Section 667(c) of the Penal Code.
Section 667(c) of the Penal Code.
California Department of Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law and
a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs (California State
Auditor, 2010) at 27.
See, for example: Grosskreutz “Strike Three: Even Though California’s Three Strikes Law Strikes out
Andrade, There are no Winners in this Game” (2003-2004) 43 Washburn Law Journal 429 at 454-455; and
California Department of Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law and
a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs (California State
Auditor, 2010) at 30.
California Department of Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law and
a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs (California State
Auditor, 2010) at 21.
Section 667.7(a) lists at least 20 offences which may trigger this regime. These include: various homicide
offences (including murder and manslaughter); sexual offences (including various forms of rape); assault
offences (including assault with intent to commit murder and assault with a deadly weapon); and violent
property offences (including robbery involving the use of force or a deadly weapon and carjacking involving
the use of a deadly weapon).
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