Similar to Nevada, the federal government has a “three strikes” rule. Repeat offenders in federal court face life in prison even if their earlier convictions were in a state court. But an experienced Nevada criminal defense attorney may be able to avoid the “three strikes” rule altogether.

What follows is a summary of the federal “three strikes” rule, which is formally known as the Violent Crime Control Act. Keep reading to learn how the law is applied and the possible penalties.

What is the federal “three strikes” rule?

The federal “three strikes” rule is the common name for the Violent Crime Control Act. It mandates that people convicted of a serious violent felony in federal court be sentenced to life imprisonment if they have previously been convicted of either:

• two serious violent felonies, or
• a serious violent felony and a serious drug offense

Note that it does not matter whether the two past convictions (“strikes”) occurred in federal court or a state court. For instance, a person with two serious violent felony convictions in Nevada state court could fall under the federal “three strikes” law if he/she is then convicted of a serious violent felony in federal court.

Also note that previous convictions cannot count as strikes if they occurred out of the same incident.

Example: The U.S. Marshals Service books Jasper at the Washoe County Detention Center for breaking into a Reno home, where he raped the resident and robbed her at gunpoint. Jasper is then convicted of the Nevada crime of sexual assault and the Nevada crime of armed robbery.

After Jasper gets out of prison, he then kills another person and gets convicted of the federal crime of voluntary manslaughter. The U.S. Attorney’s Office cannot then bring “three strikes” charges because Jasper’s previous rape and robbery convictions transpired from the same event.

Therefore if Jasper had committed the rape on a separate occasion from the robbery, then Jasper could face prosecution under the federal “three strikes” law.

Finally, note that a crime cannot count as a strike if the defendant commits it prior to the defendant getting convicted of the previous strike. This is a confusing rule, so criminal defense attorney Michael Becker provides an example:

Example: Brandon from Henderson gets convicted of kidnapping. After he gets out of prison, he then gets arrested and booked at the Henderson Detention Center for the federal crime of carjacking. While out on bail awaiting trial, Brandon then gets arrested on federal extortion charges. Brandon ultimately gets convicted of both carjacking and extortion. But the federal “three strikes” rule does not apply in Nevada Federal Court because he committed the extortion before he was convicted of carjacking.

Consequently, if Brandon had gotten convicted of carjacking prior to committing extortion, he would then face charges under the federal “three strikes” law.

What crimes count as “serious violent felonies”?

The following offenses count as strikes under the federal “three strikes” law irrespective of whether the conviction occurred in a state or federal court:

• murder
• voluntary manslaughter
• sexual abuse, aggravated sexual abuse, or abusive sexual contact
• assault with intent to commit murder or rape
• kidnapping
• aircraft piracy
• robbery, except in cases where no dangerous weapon was used or threatened and nobody was killed or seriously hurt
• carjacking
• extortion
• arson, except in cases where the defendant reasonably believed it posed no threat to human life, and there was in fact no threat to human life
• firearms use or possession
• the attempt, conspiracy, or solicitation to commit any of the above crimes

Other “serious violent felonies” that qualify under the federal “three strikes” rule are any other offense that:

1. is punishable by a maximum term of ten years or more of prison, and
2. involves either the use (or attempted or threatened use) of physical force against another person or a substantial risk that physical force against the other person may occur

What crimes qualify as “serious drug offenses”?

The following drug crimes count as strikes under the federal “three strikes” law notwithstanding whether the cases were in a state court or federal court.

• A continuing criminal enterprise (such as a drug ring)
• manufacturing, dispensing, or distributing a controlled substance, or possessing with intent to make, dispense or distribute a controlled substance
• importing or exporting a controlled substance
• creating, dispensing, or possessing with intent to create or dispense a counterfeit substance

What is the punishment?

A life sentence in federal prison is the punishment for a federal “three strikes” conviction. Note that a defendant who was sentenced to death for one of the “strikes” would still get the death penalty and not a life sentence.

Can a person convicted under the federal “three strikes” law get parole?

No. The federal “three strikes” rule allows no possibility of parole.

How do I fight the charges?

Once a person gets three strikes, it is very difficult to prevent a court from imposing the “three strikes” rule. The best time to try to stave off the “three strikes” rule in federal court is when the defendant’s third case is still in litigation. If the defense attorney can get those charges reduced to a lesser offense or dismissed, then the defendant is not eligible for “three strikes” penalties.

Do past convictions still count as “strikes” if they occurred prior to the passage of the federal “three strikes” law?

It depends. Note that the federal “three strikes” law was enacted on September 13, 1994. Qualifying convictions that occurred prior to that date may count as “first” or “second” strikes. But the third conviction must have occurred after 1994 to count as a third “strike.”

Therefore, people with three serious convictions prior to 1994 will not be prosecuted under the “three strikes” rule. But if they pick up another serious conviction in the present day, then they could.

What if someone has a past “strike” overturned?

Then the person will be re-sentenced accordingly as if he/she was never convicted under the federal “three strikes” law. Depending on the case, the person may receive credit for time served.

Does Nevada have a “three strikes” law as well?

Yes, called the “habitual offenders” law. But in most cases, it does not kick in until the defendant picks up at least six convictions. Read more in our article on the Nevada “three strikes” law.

In California? Read our piece on the California “three strikes” law.

In Colorado? Read our piece on the habitual offender laws (CRS 18-1.3-801).