Stevens on the First "Four Strikes" (as it were) Law

Nomos and Nullification: A Coverian View of New York's Habitual Offender Law, 1926 to 1936, by Caleb J. Stevens, was recently published in the American Criminal Law Review 56 (2019): 427-463.  I believe Mr. Stevens wrote the article while a law student at the University of Illinois.  He thanks two legal historians on that law faculty, Bruce Smith and Richard Ross.  Here’s the abstract:

In 1926, New York passed a habitual offender law that mandated life sentences for a fourth felony conviction, regardless of severity. Called the Baumes Law, after its principal author and advocate New York Senator Caleb Baumes, the law remains one of the harshest habitual offender laws ever passed in the United States. Until its amendment in 1936, the law launched an intense policy debate that in many ways reflects the contemporary debate over Three Strikes legislation and high U.S. incarceration rates.

In 1994, California enacted a habitual offender law, popularly referred to as the “Three Strikes and You’re Out” Law, which dovetailed with a period of emphasis on the incapacitation of habitual offenders. Several states passed similar laws that punish recidivists with longer prison terms. In Washington, a third conviction for the “most serious offenses” listed in the law requires a life sentence without the possibility of parole. Until its revision in 2012, the California Three Strikes Law was one of the most severe, imposing an indeterminate sentence of twenty-five years to life for defendants previously convicted of two or more felonies. Even with the Supreme Court decision in Ewing v. California upholding the California Three Strikes Law against an Eighth Amendment challenge, the policy debate continues around current habitual offender laws and high incarceration rates. During the Progressive Era, a similar debate raged in New York and across the U.S. over how to address the ‘habitual criminal problem.’ New York answered with passage of the Baumes Law – one of the harshest habitual offender statutes in U.S. history.

This article discusses, through the lens of Robert Cover’s concept of nomos, the nullification of the Baumes Law by juries, judges, and prosecutors in order to mitigate its harshest application. Many of these criminal justice actors repeatedly exhibited concern about imposing life sentences for four felony convictions, especially for non-violent felonies such as minor property crimes. Section I summarizes Robert Cover’s concept of nomos, discussing its relevance to the rise and fall of the Baumes Law. Section II then provides a brief historical backdrop to passage of the Baumes Law, highlighting the role of a widely perceived crime wave, and the pseudo-scientific rationales for incapacitation and removal of certain persons from society. Section III discusses the competing normative universes that characterized the fairly turbulent, brief history of the Baumes Law.

–Dan Ernst