Three-strike offenses are a common way for judges to deal with drug offenders.
According to the Sentencing Project, about one-third of the more than 2,000 federal judges in the U.S. have considered sentencing a three-stigma-based sentence for drug offenses.
Judges must use their discretion and make a decision based on the facts and circumstances of each case.
In the past, sentencing judges have used three-strike offenses when a defendant has a prior conviction or an arrest record, a drug offense and the judge believes the defendant poses a significant threat to the community.
But in a number of cases, courts have considered whether the three-year sentence fits the circumstances of a particular case.
“It’s been the traditional three-sentence sentence,” said John Stemberg, senior policy analyst for the Sentenced Project.
“There are a number who have been reluctant to accept it, but a number are now accepting it, in part because of the success of mandatory minimums, in which judges are required to use a three strike sentencing standard.”
Stemberbog said the judges who have accepted three-suspicion drug cases often do so based on other evidence, such as the defendant’s history of drug use, criminal history, mental health problems, prior convictions, and mental health treatment.
“This is what we’ve come to expect,” he said.
In some cases, judges have taken a tougher approach.
“Three strikes is not a bad thing,” said Peter Stuckey, a law professor at Georgetown University Law Center.
“But it is a very dangerous approach.
Judges should be taking the lead in the way they approach cases, and three strikes is a much more appropriate approach.”
Three-somethings are generally sentenced for drug-related offenses.
According the Sentences Project, in 2017 there were more than 5,000 drug convictions, including a record 5,200 convictions for possession of cocaine and more than 7,200 for possession with intent to distribute drugs.
For a typical offender, Stuckeys’ research shows, a three years prison sentence can lead to a significant reduction in drug use.
But, Staugs said, judges must weigh the factors, including the length of the sentence and the likelihood of recidivism, before deciding whether to use three-plus-one.
Stucking said judges must also consider the seriousness of the crime, such the likelihood that the offender will reoffend, and the impact on the community and society.
“I think there’s a concern in the legal community that there are many cases where people who have convictions have not served time,” Stucks said.
“That’s why we’re seeing the rise in cases of three-and-outs.”
Stucker said the Sentencers Project is working to change sentencing rules so that judges can make the right decisions based on all the evidence.
“We’re working on that,” he added.
“You’ll see more and more of judges going forward who will use this as a tool, and hopefully they’ll have the tools to make the appropriate decisions.”
Staug, the Sentencer, has a different perspective.
“If you have a criminal who is a violent felon, you’re going to be more likely to give them a sentence of life without parole,” Staug said.
Staug believes the best approach for judges is to avoid sentencing people who are violent.
“People are violent and deserve to be punished, and they are the worst criminals,” Staugh said.
He added, “I’m not sure if the court should have a one-sentenced, one-time conviction for murder or manslaughter.”
Staugh noted that judges have historically used sentencing guidelines for drug offenders that have been widely accepted in the criminal justice system.
He said that judges are also more likely than ever to use the drug sentencing guidelines when dealing with other offenders, such when sentencing people with mental illness.
Staugh pointed to a 2009 case where a judge handed down a sentence that was nearly 50 percent lower than the original conviction, and a case in which a judge sentenced a man to life without possibility of parole after he was convicted of murder for selling a heroin overdose antidote.
The sentence was so harsh, Staugh recalled, that the judge said he was shocked and had to ask his staff to write a letter explaining the reasoning behind the sentencing.
“They were saying, ‘This was a terrible decision, but it was the right thing to do.
We should not have to change the sentence to reflect the seriousness or the harm that this person has caused,'” he said, adding that this type of approach could be effective in a drug- and gang-ridden society.