1032
Sentencing Enhancement"Three Strikes" Law
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The following text was taken from a March 13, 1995, memorandum to
all
United States Attorneys from Assistant Attorney General Jo Ann Harris
(Criminal
Division) on the subject of the "Three Strikes" law. (18 U.S.C. §
3559(c))
MEMORANDUM FOR ALL UNITED STATES ATTORNEYS
FROM: Jo Ann Harris
Assistant Attorney General
SUBJECT: "Three Strikes"
An important purpose of the Anti-Violent Crime Initiative is to work
with
our state and local counterparts to take violent criminals off the streets.
When
a firearm is involved, we have long used the Armed Career Criminal Act, 18
U.S.C.
§ 924(e), to achieve the prolonged incarceration of armed, violent
offenders.
Under the Violent Crime Control and Law Enforcement Act of 1994, we have a
powerful new federal tool, the so-called "Three Strikes, You're Out"
provision,
to help us deal with violent repeat offenders.
This provision should play a key role in every district's
anti-violent
crime strategy. To help us make the most effective use possible of this
potential tool, please ensure that state and local prosecutors are aware of
the
federal "Three Strikes" provision and your willingness to coordinate
prosecutive
decisions in cases that are "Three Strikes"-eligible. You should have in
place
a referral mechanism, perhaps through your violent crime working group, to
ensure
that appropriate "Three Strikes" cases are presented to you for potential
prosecution.
In determining whether to bring prosecutions under this statute,
you
should be guided by the Principles of Federal Prosecution.
Trial
of an eligible defendant under "Three Strikes will often provide a more
effective
punishment than a prosecution under,other federal statutes. For the state
prosecutor, "Three Strikes" provides a vehicle to take the most dangerous
offenders out of the community and keep them out. This is particularly
important
in states where prison overcrowding results in early release even for
violent
criminals.
The "Three Strikes" statute is sufficiently important to our
violence
enforcement efforts that I want to underscore its key provisions. Under the
federal "Three Strikes" provision, which is now codified at 18 U.S.C.
§
3559(c), the defendant receives mandatory life imprisonment if he or she:
- is convicted in federal court of a "serious violent felony" and
- has two or more prior convictions in federal or state courts, at least
one
of which is a "serious violent felony." The other prior offense may be a
"serious
drug offense."
Under the statute, a "serious violent felony" includes murder,
manslaughter, sex offenses, kidnapping, robbery, and any offense punishable
by
10 years or more which includes as an element the use of force or that, by
its
nature, involves a significant risk of force. The statute also enumerates
certain nonqualifying felonies, including unarmed robbery offenses and
arsons
that posed no threat to human life.
- An unarmed robbery offense may serve as a basis for "Three
Strikes"
sentencing if the offense involved the threat of use of a firearm or other
dangerous weapon -or the offense resulted in death or serious bodily injury
to
any person. If the government files in such a case, the defendant must
establish
by clear and convincing evidence that neither of those factors existed.
- An arson will not serve as the basis for "Three Strikes" sentencing if
the
defendant establishes by clear and convincing evidence that the offense
posed no
threat to human life and the defendant reasonably believed that it posed no
threat to human life.
- A "serious drug offense" includes continuing criminal enterprise,
violations of Title 21 involving distribution, manufacture, or possession
with
intent to distribute significant quantities of controlled substances, or
equivalent state offenses.
- There is a sequencing requirement in the statute: each offense
relied
upon, except the first, must have been committed after the conviction of the
preceding serious violent felony or serious drug offense. The predicate
convictions must be final. Sentencing under the statute is triggered by
notice
filed by the prosecutor with the court prior to trial or plea of guilty in
accord
with the procedures contained in 21 U.S.C. S 851(a). We suggest that you
file
notice only after receiving certified copies of the prior convictions or
otherwise verifying the validity of the convictions on which you intend to
rely.
- Section 851(a) of Title 21 requires the filing of an information with
the
court prior to trial or prior to the entry of a plea of guilty, stating in
writing the convictions to be relied upon for sentencing. A copy must be
served
on the defendant or counsel for the defendant.
- The statute does not apply to persons subject to the criminal
jurisdiction
of an Indian tribal government for offenses committed in Indian country
where
federal jurisdiction is predicated solely on Indian country, unless the
governing
body of the tribe has elected that the provision have effect over land and
persons subject to the criminal jurisdiction of the tribe.
- Furthermore, you should aggressively use all available federal
violent
felony provisions, including the Hobbs Act, to achieve prolonged
incarceration
for "Three Strikes"-eligible defendants. Under 18 U.S.C. § 1951, the
Hobbs
Act covers a robbery that in any way affects interstate commerce, including
the
robbery of a convenience store or other commercial establishment. While the
Department has promoted use of the Hobbs Act robbery provision primarily in
cases
involving criminal organizations or gangs, you also should consider using it
where a defendant's criminal history would support a life sentence under
"Three
Strikes." These decisions, of course, should be carefully coordinated with
state
and local prosecutors, taking into account the availability in each case of
a
state statute that will result in prolonged incarceration of the defendant.
- The Hobbs Act also prohibits an attempt or conspiracy to commit such a
robbery.
- To assist us in evaluating how the "Three Strikes" provision is
being
used, please continue to notify Tom Roberts, in the Terrorism and Violent
Crime
Section, at (202) 514-0849, concerning potential "Three Strikes" cases.
When you
file a "Three Strikes" case, please send an urgent report to the attention
of the
Director of the Executive Office for United States Attorneys.
- We also anticipate that there may be issues arising under the
"Three
Strikes" provision that will be litigated in district courts and U.S. courts
of
appeals. The Criminal Division is available to assist you in handling these
matters. In any event, please coordinate your positions on issues that are
less
than clear-cut with the Terrorism and Violent Crime Section to ensure
consistency
and enable us to develop policy positions as needed.
- The Eastern District of Virginia has developed an outline to assist in
determining when a particular case is "Three Strikes"-eligible. A copy of
that
outline is attached for your convenience.
[cited in USAM 9-60.020] | |