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Habitual offenders: Third strike or check swing?
By James Alan Fox, Lipman Family Professor of Criminology, Law and Public Policy, Northeastern University
Published: 04/16/2012

Baseball player No surprise that there aren’t many criminologist jokes floating about, at least as far as I’m aware. Still, I do recall one I heard back in graduate school that may actually have some relevance to the ongoing debate up on Beacon Hill concerning the best approach to punishing the worst offenders.

It is told that there was once a very old land ruled by a very old King who, in a gesture of compassion from his deathbed, ordered all prison sentences to be immediately cut in half. By the King’s decree, a robber’s ten-year prison term was commuted to five years, and the rapist who was serving a 30-year sentence saw his penalty reduced to 15 years. But prison officials, having to carry out the King’s wishes without deviation, had no clue on how to proceed with halving the sentences of murderers serving life. The Warden was just about as confused as many appear today about the House and Senate bills pertaining to habitual offenders.

To make a long and lame story short and painless, the punch line came in the advice that the Warden received when consulting with a local criminologist about how to administer half a life sentence. “Let the murderer go free tomorrow,” recommended the criminologist. But before the Warden could utter a word of dismay, the learned advisor continued detailing the plan. “Then bring him back to prison the next day, and continue the release/return process for alternating days of freedom and incarceration until the convict dies a natural death.” Never was the term “revolving justice” any truer.

Fortunately, when it comes to rewriting the state’s habitual offender law, the Massachusetts legislature is avoiding the half-a-life dilemma completely. By current statute, third-time felons charged and convicted as habitual offenders must serve one-half of their sentence before becoming eligible for parole consideration. Crafted in response to two particularly high profile murder cases involving repeat offenders, both the Senate and the House bills call for increasing the threshold from one-half to two-thirds of the maximum sentence imposed.

But the more significant change comes with the second portion (Subsection b) of these bills, which makes those habitual offenders who had committed one of a long list of nearly 60 crimes ineligible for parole consideration (as well as “good time” reduction). These prisoners would need to serve the maximum with no gifts from a parole board (or a dying royalty).

A close examination of the list of crimes raises two concerns. The first involves the overly broad range of offenses among those that disallow parole, and the other relates to the subset that is punishable by life without parole.

While the array of serious felonies appropriately includes such atrocities as homicide and rape, lesser offenses such as stalking in violation of a restraining order and assault with intent to commit robbery would also make the third-timer ineligible for early release on parole.

Particularly curious, if not problematic, is the fate of those convicted on a smaller subset of crimes that are punishable by as much as a life sentence. At the severity extreme, there is, of course, murder. A first degree murder conviction already carries a life sentence without parole eligibility, whether the offender is a first-timer or a repeat criminal. A habitual offender convicted of second degree murder would also, by virtue of the pending legislation, receive life without parole.

Not so reasonable, however, is that many other habitual offenders convicted of crimes far short of murder could also be sentenced to life without the possibility of parole. If charged as a habitual offender, defendants convicted of such crimes as armed robbery and burglary could be sent away to prison forever.

While I do not mean to minimize the severity of such transgressions, they do not rise to the gravity level of homicide. Life without parole should be reserved for the very worst of the worst, and robbers and burglars -- even habitual ones -- do not fall in the category of those who should never ever experience freedom again. The most serious crimes short of homicide require long sentences, but not life-long ones.

I understand that habitual offender designation is hardly automatic. In baseball, the source of the “three strike” metaphor, both a batter’s check swing and a nasty corner pitch determined by the ump to be just off the plate fail to qualify as a third strike. Similarly, the application of the habitual offender designation involves some level of discretion. But to avoid the chance of anyone crying foul later on, we should remedy the bill before it ever becomes law.

* * *

Postscript: Had Abner Doubleday decided to give batters four strikes at the plate, would our sentencing laws be correspondingly different? Were it not for our obsession with baseball metaphors (e.g., “you really threw me a curve,” “let’s touch base later,” and “You knocked it out of the park”), would we determine punishment based on the nature, but not number, of prior convictions. I love baseball, but we should keep it far afield from the criminal justice system.

Editor's note: Reprinted with permission - Author James Alan Fox is the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern University. He is the author of the Boston.com blog "Crime and Punishment". He has written 18 books, including his newest, "Violence and Security on Campus: From Preschool through College." He has published dozens of journal and magazine articles, and hundreds of freelance columns in newspapers around the country, primarily in the areas of multiple murder, youth crime, school and campus violence, workplace violence, and capital punishment.

Other articles by Fox:


  1. Dennis Speer on 05/21/2012:

    The 19 year old son of a friend got into a bad crowd and ended up busted. He and his buddies were breaking into neighborhood houses and mostly stealing frozen burritos and left-over cakes and pies. They did lift a new cell phone at one house and a watch at another and an old video game unit they found bundled up to be given away at a 3rd house. Thanks to it being an election year for the local DA this kid was hit with 3 strikes all at once. One arrest, one trial, but more than 3 offenses so our DA went for broke. First arrest for the kid but facing life without parole.... And us taxpayers facing 40 or more years of paying to keep him locked up. Thankfully the Public Defender was able to bargain it down to only 2 strikes, but with 2 felony strikes he ended up not going to a farm or camp or minimum security prison. After five years in a cell between a mass murderer and serial rapist he was released, could not find any work, and ended up strong-arm robbing some tourists and is now in for a good long stretch. The 3 strikes laws are great if you want to expand our prisons and keep lots of lawyers working full time but I just don't see them increasing the safety of our cities and homes. I wonder if we put the money spent on the 3rd strikers into Police/Youth Athletic Programs like the ones I remember if we would not come out better off.

  2. jamestown0509 on 04/22/2012:

    The sentencing of a prisoner is the discretion of the court regardless if it is state or federal. Each state has sentencing laws that are used for specific crimes. In New York the class of the crime A, B,C, D, E for felonies relates directly to the amount of time that can be given in prison. A prisoner who is sentenced an indeterminate sentence of 2 to 4 years in state prison is given good time credit for days served but that is controlled by the DOCS (Department of Correctional Services) in New York state and the parole board. If the prisoner has parole time due it is added to the back of the sentence (for example 12 months added to the indeterminate sentence). If the judge allows during the sentence phase a prisoner may be eligible for shock incarceration camp (6 months) or the Willard Drug Treatment program (90 days) which is deducted from their sentence in state prison. Within the federal system since 2007 the Federal Sentencing Guidelines were changed from mandatory to discretionary, thus a federal judge can either increase or decrease the final sentence and not rely on the Federal guidelines. In federal prisons all inmates must serve 85 percent of their sentence before being considered for release. As for the three-strike law in New York and California any prisoner convicted twice in drug sales could be sentenced to life in prison on the third arrest and conviction for any felony. Those laws in New York were the Rockefeller laws which were overturned by the legislature in 2010.

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