Sentencing Enhancement"Three Strikes" Law
The following text was taken from a March 13, 1995, memorandum to
United States Attorneys from Assistant Attorney General Jo Ann Harris
Division) on the subject of the "Three Strikes" law. (18 U.S.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
our state and local counterparts to take violent criminals off the streets.
a firearm is involved, we have long used the Armed Career Criminal Act, 18
§ 924(e), to achieve the prolonged incarceration of armed, violent
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"
to help us deal with violent repeat offenders.
This provision should play a key role in every district's
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
federal "Three Strikes" provision and your willingness to coordinate
decisions in cases that are "Three Strikes"-eligible. You should have in
a referral mechanism, perhaps through your violent crime working group, to
that appropriate "Three Strikes" cases are presented to you for potential
In determining whether to bring prosecutions under this statute,
should be guided by the Principles of Federal Prosecution.
of an eligible defendant under "Three Strikes will often provide a more
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
in states where prison overcrowding results in early release even for
The "Three Strikes" statute is sufficiently important to our
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
of which is a "serious violent felony." The other prior offense may be a
Under the statute, a "serious violent felony" includes murder,
manslaughter, sex offenses, kidnapping, robbery, and any offense punishable
10 years or more which includes as an element the use of force or that, by
nature, involves a significant risk of force. The statute also enumerates
certain nonqualifying felonies, including unarmed robbery offenses and
that posed no threat to human life.
- An unarmed robbery offense may serve as a basis for "Three
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
any person. If the government files in such a case, the defendant must
by clear and convincing evidence that neither of those factors existed.
- An arson will not serve as the basis for "Three Strikes" sentencing if
defendant establishes by clear and convincing evidence that the offense
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
intent to distribute significant quantities of controlled substances, or
equivalent state offenses.
- There is a sequencing requirement in the statute: each offense
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
filed by the prosecutor with the court prior to trial or plea of guilty in
with the procedures contained in 21 U.S.C. S 851(a). We suggest that you
notice only after receiving certified copies of the prior convictions or
otherwise verifying the validity of the convictions on which you intend to
- Section 851(a) of Title 21 requires the filing of an information with
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
on the defendant or counsel for the defendant.
- The statute does not apply to persons subject to the criminal
of an Indian tribal government for offenses committed in Indian country
federal jurisdiction is predicated solely on Indian country, unless the
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
felony provisions, including the Hobbs Act, to achieve prolonged
for "Three Strikes"-eligible defendants. Under 18 U.S.C. § 1951, the
Act covers a robbery that in any way affects interstate commerce, including
robbery of a convenience store or other commercial establishment. While the
Department has promoted use of the Hobbs Act robbery provision primarily in
involving criminal organizations or gangs, you also should consider using it
where a defendant's criminal history would support a life sentence under
Strikes." These decisions, of course, should be carefully coordinated with
and local prosecutors, taking into account the availability in each case of
state statute that will result in prolonged incarceration of the defendant.
- The Hobbs Act also prohibits an attempt or conspiracy to commit such a
- To assist us in evaluating how the "Three Strikes" provision is
used, please continue to notify Tom Roberts, in the Terrorism and Violent
Section, at (202) 514-0849, concerning potential "Three Strikes" cases.
file a "Three Strikes" case, please send an urgent report to the attention
Director of the Executive Office for United States Attorneys.
- We also anticipate that there may be issues arising under the
Strikes" provision that will be litigated in district courts and U.S. courts
appeals. The Criminal Division is available to assist you in handling these
matters. In any event, please coordinate your positions on issues that are
than clear-cut with the Terrorism and Violent Crime Section to ensure
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
outline is attached for your convenience.
[cited in USAM 9-60.020]