cumulative bonus territory
The "three strikes" statutes are commonly referred to by that phrase because of the frequency of the use of three offenses, but they also occur at various times as "two, three, four, or even ten strikes" in Delaware statutes. The enhanced penalties are not properly to be construed as the penalty for the second, third, fourth or tenth offense, but rather as a bonus sentence for the cumulative criminal efforts of the defendants. Or are they?

We see the two strike rule when juveniles commit their second felony level delinquent act within a year of their last one. This carries a minimum mandatory 6 month period of incarceration.

10 Del. C. § 1009. Adjudication; disposition
(1) Any child who has been adjudicated delinquent by this Court of 1 or more offenses which would constitute a felony were the child charged as an adult under the laws of this State, and who shall thereafter within 12 months commit 1 or more offenses occurring subsequent to the said adjudication which offense or offenses would constitute a felony were the child charged as an adult under the laws of this State, and thereafter be adjudged delinquent of said offense or offenses, is declared a child in need of mandated institutional treatment, and this Court shall commit the child so designated to the Department of Services for Children, Youth and Their Families for at least a 6-month period of institutional confinement;...

The three and four strike rules can be seen in the adult criminal arena, and can result in life sentences or at least the maximum sentence available for the most recent crime.

11 Del. C. § 4214. Habitual criminal; life sentence.
(a) Any person who has been 3 times convicted of a felony, other than those which are specifically mentioned in subsection (b) of this section, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such 4th. or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the 4th or subsequent felony which forms the basis of the State's petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the 4th or subsequent felony is a Title 11 violent felony, as defined in 11 Del. C. § 4201 (c) of this title. Notwithstanding any provision of this title to the contrary, any sentence so imposed pursuant to this subsection shall not be subject to suspension by the court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation or parole, except that any such sentence shall be subject to the provisions of 11 Del. C. § 4205 (h), 4217, 4381 and 4382 of this title.

(b) Any person who has been 2 times convicted of a felony or an attempt to commit a felony hereinafter specifically named, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony hereinafter specifically named, or an attempt to commit such specific felony, is declared to be an habitual criminal, and the court in which such third or subsequent conviction is had, in imposing sentence, shall impose a life sentence upon the person so convicted unless the subsequent felony conviction requires or allows and results in the imposition of capital punishment. Such sentence shall not be subject to the probation or parole provisions of Chapter 43 of this title.

Such felonies shall be:

... [long list of serious felonies ommitted]

Notwithstanding any provision of this title to the contrary, any sentence imposed pursuant to this subsection shall not be subject to suspension by the court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation, parole, earned good time or any other reduction. ....

Take note that the drafters of the adult criminal laws took great care to make sure that the habitual offender statute would not interfere with one's opportunity to be executed for a crime, if appropriate. It is also interesting that all of these crimes need not have been committed within the State of Delaware. The defendant could have committed crimes number one and two in Nevada, for example, and then the triggering final crime in Delaware.

And driving related offenses can be seen to trigger their own civil, not criminal, three and ten strike events. Although most of the habitual bad driver statutes result in a lengthy revocation of a driver's license, and not life imprisonment.

On one hand, it can be seen that the bonus punishment under these statutes are relating back to the cumulative pattern of behavior.

But the dilemma becomes apparent in the logic when (or if) one considers that after a defendant has completed her sentence for crime number one, she has fully discharged her debt to society for that crime. When she completely serves out her time out for number two, she similarly has fully paid her dues.

But when she commits her third offense, even if minor in comparison, can the government retroactively go back and say that we are now adding a penalty for crimes number one and two? If not, then isn't a life sentence for stealing a postage stamp so outrageously disproportionate as to be unconstitutional? Does the fact that the defendant has had notice of the existence of these "three strike" rules all through her criminal career ease our concerns in that regard sufficiently?

For me it does. But that does not mean that I still don't have difficulty in the legal analysis of the problem. It just means that I don't feel sorry for career criminals. I live here too.