Can convictions that happened before three strikes laws passed be used as strikes?

A crime can be a “strike” even if there was no such thing as a strike when it occurred.

Three strikes laws provide that defendants with two designated “serious” or "violent" felonies are subject to harsh prison sentences upon conviction of a third qualifying offense. In some states, that offense must be a serious or violent felony, while in others even a misdemeanor elevated to a felony because of the defendant’s criminal record suffices.

State legislators and Congress enacted three strikes laws in the 1990s. For example, California’s three strikes law went on the books in 1994. Obviously, convictions after the date a three strikes law passes can trigger three strikes punishment, but what about convictions before then? Does counting old convictions as “strikes” violate the constitutional ban on ex post facto laws (laws that retroactively criminalize conduct or change punishment)?

In short, the answer seems to be no.

Generally, a strike is a strike, even if it wasn’t a “strike” when it happened. In other words, if a crime that occurred before the passage of a three strikes law would have been a strike if committed after, it’s still a strike. If the defendant commits another offense, the prior offense is a strike for sentencing purposes. That’s bad news for a defendant, since prior strikes increase penalties even if the current crime isn’t a third strike.

For example, in People v. Sipe, the defendant pleaded guilty to the crime of escape by a prisoner, a crime he committed less than a month after the California legislature enacted its three strikes law. (36 Cal. App. 4th 468 (1995).) At sentencing, the court counted the defendant’s pre-three-strikes burglary conviction as a strike, thereby increasing the punishment for the escape conviction.

A California appeals court said that this sentence was proper, that considering convictions prior to the effective date of the three strikes law to be strikes isn’t a retroactive application of law. It said that the fact that a law draws upon facts that happened before it was enacted doesn’t necessarily mean it’s invalid in that regard. Other courts have followed Sipe’s lead, allowing the reclassification of old crimes as strikes for future sentencing purposes.

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If you’re facing any kind of criminal charge, even if three strikes law isn't involved, you should consult an experienced criminal defense attorney. Only such an attorney can protect your legal rights and help you navigate the system.

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