FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 8 - CHAPTER 120
Go to Volume 8 Table of Contents  -  Go to Chapter 120 Table of Contents

120.3 Three Strikes

    120.3.3 Three Strikes: States

    120.3.3.1 [Reserved]
    120.3.3.2 Instructing The Jury Regarding Defendant's Liability For Three Strikes Sentencing
    120.3.3.3 Comment Or Instruction To Jury Regarding Three Strikes
    120.3.3.4 Four Justices Of U.S. Supreme Court Suggest The Possibility Of Future Three Strikes Review
    120.3.3.5 Three Strikes: Life Sentence For Petty Theft Violates 8th Amendment

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 8 - CHAPTER 120

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 8 - CHAPTER 120

PRACTICE NOTE: It has, of course, been an accepted practice to instruct the jury that it must not consider the penalty or punishment that the defendant may receive if convicted. (See FORECITE National™ 279.1 [Jury Must Not Consider Penalty, Punishment Or Sentence].) However, in the context of the extreme disparity between the crime committed and the severity of the punishment imposed in some Three Strikes cases it may be argued that the judge should have the discretion to instruct on penalty in such cases. For example, U.S. v. Datcher (6th Cir. 1993) 830 FSupp 411, 412 held that when the punishment is unusually severe in comparison to the nature of the offense, the defendant should have the right to inform the jury as to that punishment. However, the 6th Circuit vacated the lower court opinion in Datcher, and Datcher was disapproved in U.S. v. Chesney (6th Cir. 1996) 86 F3d 564, 573.  (See also People v. Baca (CA 1996) 48 CA4th 1703, 1707 [56 CR2d 445]; see also People v. Nichols (CA 1997) 54 CA4th 21, 26 [62 CR2d 433] [even if the jury asks, the court does not err in refusing a request to inform the jury that the case is a "three strikes" case]; People v. Cardenas (CA 1997) 53 CA4th 240, 246 [61 CR2d 583] [defendant has no right to have the prospective jurors voir dired regarding their view of three strikes]; People v. Cline (CA 1998) 60 CA4th 1327, 1333 [71 CR2d 41] [trial court may allow bifurcation motion by prosecutor to avoid jury nullification provided nullification is not sole reason for bifurcation].)

    The reasoning and fundamental rationale behind Datcher -- that the jury system works best when the jury is not kept in the dark -- remains entirely valid. [An article, Jury Nullification In The Three Strikes Era, by Cliff Gardner, further discussing this issue appears in the California Attorneys For Criminal Justice FORUM, Vol. 22, No. 4 (1995), pp. 29-32. 

"Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences," K.K. Sauer, 95 Colum.L.Rev. 1232-72 June, 1995.

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 8 - CHAPTER 120

PRACTICE NOTE: It may be argued that, even if there is no right to an instruction informing the jury about three strikes sentencing, counsel should not be precluded from so informing the jury. However, People v. Cardenas (CA 1997) 53 CA4th 240, 248 [61 CR2d 583] held that the defendant does not have a right to question potential jurors about the "Three Strikes" law.

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 8 - CHAPTER 120

PRACTICE NOTE: In Riggs v. California (1999) 525 US 1114, [119 SCt 890; 142 LEd2d 789] the United States Supreme Court denied certiorari in a three strikes case where the defendant had been convicted of stealing a bottle of vitamins. However, Justices Stevens, Souter, and Ginsberg expressed concern over the constitutionality of such a severe sentence for what would ordinarily be a misdemeanor. In their concurring opinion, these justices noted that the issue may be raised by the petitioner on federal habeas since it involves application of a settled rule of Eighth Amendment law.

    Justice Breyer dissented from the denial of certiorari due to the serious constitutional question regarding the imposition of a severe sentence for a petty offense.

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 8 - CHAPTER 120

PRACTICE NOTE: See Brown v. Mayle (9th Cir. 2002) 283 F3d 1019 [California's Three Strikes Law not unconstitutional; only its application to mandate a 25-year-to-life sentence for petty theft offense violates the 8th Amendment prohibition against cruel and unusual punishment]. Lockyer v. Andrade (2002) 538 US 63 [123 SCt 1166; 155 LEd2d 144] held that the California Three Strikes law does not violate the Eighth Amendment.

Article: a Special Report: Who's Afraid of the Federal Judiciary? Why Congress' Fear of Judicial Sentencing Discretion May Undermine a Generation of Reform, 27 Champion 6 (2003).

Note: Human Rights Treaties in U.S. Law: the Status Quo, its Underlying Bases, and Pathways for Change, 13 Duke J. Comp. & Int'l L. 419 (2003).

Article: "Death Is Different," Is Money Different? Criminal Punishments, Forfeitures, and Punitive Damages -- Shifting Constitutional Paradigms for Assessing Proportionality, 12 S. Cal. Interdis. L.J. 217 (2003).

NOTE: The Need for Coherence: States' Civil Commitment of Sex Offenders in the Wake of Kansas v. Crane, 55 Stan. L. Rev. 2229 (2003).

BOOK REVIEWS: Is the Sky Falling on the Federal Government? State Sovereign Immunity, the Section Five Power, and the Federal Balance: Narrowing the Nation's Power: the Supreme Court Sides with the States. By John T. Noonan, Jr., 81 Tex. L. Rev. 1551 (2003).

The Washington and Lee Law Alumni Association Student Notes Colloquium: The Need for Comity: A Proposal for Federal Court Review of Suppression Issues in the Dual Sovereignty Context After the Antiterrorism and Effective Death Penalty Act of 1996, 60 Wash & Lee L. Rev. 185 (2003).