Sharia Law and Rules: Understanding the Basic Tenets and Principles

Sharia Law is an Islamic legal system that derives its principles and regulations from the Quran and Hadith, which are the holy books of the Muslim religion. It is the comprehensive framework on which Islamic society is based, covering all aspects of life from relationship to commerce, from worship to governance. In the Western world, Sharia Law is often under a lot of scrutiny and viewed with suspicion, partly because of its association with extremism and terrorism. However, it is important to understand the basic tenets and principles of Sharia Law and Rules in order to appreciate its contribution to society, and to dispel any misconceptions surrounding its practice.

The Meaning of Sharia Law

Sharia Law is derived from the Arabic word Shariah, which means “path” or “way to water.” It refers to the pathway that leads to the pure and clean water of life. For Muslims, Sharia Law is a divine code of conduct that outlines the obligations and responsibilities that Allah (God) expects of them. It is not a man-made set of rules and regulations; it is a guide to salvation that governs the behavior of Muslims worldwide.

Sharia Law is not a static code of conduct; it is dynamic and adaptive, responding to the changing needs of society while remaining within the boundaries set by the Quran and Hadith. Its basic principles and regulations have remained the same, but the interpretation of these principles has varied according to the changing social, political, and economic circumstances of Islamic communities worldwide.

The Sources of Sharia Law

Sharia Law has its roots in the holy book of Islam, the Quran. It contains the revelations of Allah to the Prophet Muhammad, which were recorded in the Arabic language. The Quran is divided into 114 chapters, each containing verses that provide guidance on a wide range of topics, including worship, morality, social conduct, and governance.

The Hadith is an equally important source of Sharia Law. It refers to the sayings and actions of the Prophet Muhammad, recorded by his companions and later scholars. The Hadith provides insight into Islamic traditions, the Prophet’s practices and behaviors, and the ethical standards of early Islamic society. It is considered part of the Sunnah, or the recorded teachings of the Prophet Muhammad.

In addition to the Quran and Hadith, Sharia Law also takes into account the interpretations and opinions of Islamic scholars and jurists, as well as consensus (ijma) and analogy (qiyas). The consensus refers to the agreement of Islamic scholars on a specific issue or matter. Analogy refers to the application of Islamic principles to new situations or circumstances.

The Basic Principles of Sharia Law and Rules

Sharia Law and Rules cover all aspects of life, including moral and ethical behavior, family and social relationships, economic and financial transactions, and political and legal governance. The following are the basic principles of Sharia Law:

1. Tawhid – Monotheism: Tawhid is the belief in the oneness of Allah and the importance of worshipping Him alone. It is the foundation of all Islamic beliefs and practices.

2. Shirk – Idolatry: Shirk refers to the practice of worshipping idols or other objects besides Allah. It is considered a grave sin in Islam.

3. Salah – Prayer: Salah is the compulsory prayer that Muslims perform five times a day. It is a means of seeking Allah’s guidance and seeking forgiveness for one’s sins.

4. Zakat – Almsgiving: Muslims are required to give a portion of their wealth to the poor and needy. It is one of the five pillars of Islam.

5. Sawm – Fasting: Muslims are required to fast during the month of Ramadan, abstaining from food and drink from dawn until sunset. It is a means of gaining self-discipline and spiritual purification.

6. Hajj – Pilgrimage: Muslims who are physically and financially capable of doing so are required to perform the Hajj, or pilgrimage to Mecca, at least once in their lifetime.

7. Jihad – Struggle: Jihad refers to the struggle or effort made in the path of Allah, which could be through good deeds, charitable works, or defensive warfare.

8. Akhlaq – Morality: Muslims are required to conduct themselves with honesty, integrity, kindness, and compassion. It is considered a duty to one’s fellow Muslims and to society at large.

The Role of Sharia Law and Rules in Islamic Governance

Sharia Law and Rules provide the legal framework for Islamic governance, which is based on the principles of justice, equality, and accountability. Sharia Law emphasizes the importance of good governance, transparency, and accountability, and encourages active participation by citizens in the governance process.

Islamic governance is based on the principles of consultation (shura), consensus, and accountability. It is the duty of Islamic leaders to ensure that the laws and regulations are in line with Islamic principles and that they are consistently applied to all citizens regardless of their social status, ethnicity, or gender.

Sharia Law and Rules also provide guidance on matters such as the distribution of wealth, social welfare, and the protection of human rights. It emphasizes the importance of social justice, and calls for the establishment of fair and equitable societies where everyone has access to basic necessities such as food, shelter, and healthcare.

The Misconceptions Surrounding Sharia Law and Rules

In recent times, Sharia Law has been associated with extremism, terrorism, and human rights abuses. However, these perceptions are largely based on a misunderstanding of its principles and a misrepresentation of its practice.

One of the most common misconceptions about Sharia Law is that it is harsh and inhumane, and advocates for punishments such as stoning, beheading, and amputations. While some Islamic countries do practice these punishments, they are based on a strict interpretation of Islamic law and are not endorsed by all Islamic scholars. The majority of Muslim-majority countries have moved away from these forms of punishment and have adopted more modern and humane legal systems.

Another misconception is that Sharia Law is anti-democratic and anti-women. While it is true that Sharia Law takes a conservative view of gender roles, it does not advocate for the oppression of women. In fact, Sharia Law provides protections for women’s rights, including the right to education, employment, and property ownership. Islamic societies that practice Sharia Law have seen significant progress in women’s rights and have made significant contributions to the advancement of women’s rights in the Muslim world.

Conclusion

In conclusion, Sharia Law and Rules are an integral part of Islamic society, providing a comprehensive framework for personal and societal conduct. It is based on the principles of justice, equality, and accountability, and emphasizes the importance of good governance, social justice, and human rights. It is important to understand the basic principles and regulations of Sharia Law and Rules in order to appreciate its contribution to society, and to avoid misconceptions and prejudices that may hinder its practice and development.

What is Sharia Law?

Definition

Sharia law, translated into “the path”, is the code of conduct for religious law in Islam.  It is composed of the teachings of the Qur’an, the Muslim holy book, and the teaching of the prophet Muhammad, in the Sunnah.  Secondary sources of Sharia law include the teachings of Muslim scholars.

Composition

Sharia law encompasses all aspects of society including crime, politics, economics, sexuality, family law, diet, hygiene and fasting.  Traditionally in Muslim countries Sharia law was considered the law of the land.  Some common attributes of Sharia law include:

• The masking of women when in public

• Adoption is prohibited

• Prohibition against intermarriage between Muslims and non-Muslims

• Homosexuality is strictly forbidden; a 4 time offender gets the death penalty

• Men can be the only witnesses to crimes

• It is a crime to abandon the Islamic faith

• The display of an image of the prophet Muhammad carries the death penalty

One of the hallmarks of Sharia law is the inferiority to which it classifies women.  A common example is if a woman is raped and becomes pregnant she is sentenced to death by stoning strictly for becoming pregnant out of wedlock.  The man who raped her, however, is usually free of any wrongdoing.

Sunni & Shi’a

There are two main sects of Islam, the Sunni and the Shi’a.  The Sunni believe that not only the Qur’an and Sunnah should be used in the practice of Sharia law, but also some of Muhammad’s other works such as the sahaba and the ulema.  The Sunni also employ analogies to the Qur’an and the Sunnah when deciding issues.  The Shi’a, in the alternative mostly frown upon the use of analogies and pride themselves on the use of logic.  Where the Sunni use Muhammad’s secondary books to “fill in the gaps” of Sharia law the Shi’a use the teachings of the 12 imam, disciples of Muhammad that spread his original message.

Sharia Law Countries

Currently there are a number legal systems in the Middle East and Asia that deal with Sharia law.  Some nations such as Mali, Kazakhstan and Turkey have a strictly secular government where Sharia law is only limited to personal and family matters.  Others like Pakistan, Indonesia, Afghanistan, Sudan and Morocco follow a more integrated approach.  In their law the secular government, although influenced by Sharia law, is the ultimate law and the constitution of the nations are upheld over conflicts with Sharia law.  Then there are the fundamentalist Islamic nations such as Saudi Arabia, Iran and the Persian Gulf nations where Sharia law is the same as secular law.

Tenants of Sharia law

Sharia law is divided into 11 main tenants:

1. Purification

2. Prayer

3. The Funeral Prayer

4. Taxes

5. Fasting

6. The Pilgrimage

7. Trade

8. Inheritance

9. Marriage

10. Divorce

11. Justice

Purification

This tenant of Sharia law prescribes how an individual is supposed to maintain purity and spiritual dimension.  It entails the use of water, soil, or other “cleaners” for cleansing purposes.  It imposes rules about contact with “impure” animals and delegates cleaning rituals to be done before and after prayer as well as the proper way to clean dishes, clothing and homes.

Prayer

Sharia law details every aspect of daily prayer.  One of the tenants most well known rituals is praying towards Mecca 5 times a day.  Sharia law also delegates who can pray and where to pray.

Funeral prayer

Sharia law also has a detailed way of dealing with the ill and the burial of the deceased.  There is a specific way that the dead are to be buried.  This includes certain cleaning and dressing rituals as well as the burial itself, where the deceased is put in a grave perpendicular to Mecca and the body is placed sideways, facing Mecca.

Taxes

The Qur’an details how the wealthy should treat the poor.  In Sharia law it is required that those individuals who are deemed wealthy pay a tax, known as a zakat, in order to help the poor.  The percentage is not prescribed by the Qur’an and it may be adjusted as needed.

Fasting

Sharia law designates the month of Ramadan to be a month of fasting where individuals may not partake in food, drink, or sexual activity during daylight hours.  Islamic law specifically prescribes the methods of fasting as well as the times, who must fast and any exceptions.

Pilgrimage

Specifically prescribed in the Qur’an, at least once in the life of a Muslim an individual must travel to Mecca to perform a ritual ceremony.  This ceremony is performed two months after Ramadan and is very strict on the practices that must be performed

Trade

Sharia law specifically prohibits certain business actions including the charging of interest or insurance.  For these, and many other reasons, the majority of businesses in the Islamic world are partnerships, instead of corporations.

Inheritance

Inheritance rights in Sharia law tend to favor men.  Typically a woman will receive one half the amount of inheritance her male counterpart would have received.  The property distribution allowed by Shariah law prescribes that 1/3 of the property may go to bequests and the rest, after debts, is distributed to family members under the intestacy rules of Sharia law.

Marriage

There are two forms of marriage under Sharia law, the nikah and the nikah mut’ah.  Essentially the nikah is an “official” marriage where there is a dowry given to the bride and a contract of marriage signed.  A nikah marriage entitles the couple to inheritance rights.  Under Sharia law a man is permitted to have up to 4 nikah wives.

The second common type of marriage is the nikah mut’ah.  This second type of marriage is often known as a “Haram.” It is a marriage that lasts for a specific period of time and at the end of a prescribed period the marriage is dissolved.  Women in nikah mut’ah marriages do not get inheritance rights and the husband is not responsible for the wife’s economic well-being.  A nikah mut’ah marriage does not count towards the 4 wives allowed by Sharia law.

Divorce

Under Shi’a divorce law, a man may divorce upon telling her of his intentions.  Under Sunni law it must be witnessed by 4 individuals.  All aspects are controlled by Sharia law, including child support.

Sharia legal system

The procedural and substantive aspects of Sharia law are different in many respects from those known to people in this country.  First and foremost, there are no juries or attorneys.  The trial consists of strictly the judge, plaintiff and defendant.  There is no discovery, no cross-examination of witnesses, no stare decisis (the following of case precedents) and no codified statutes.

There are 3 categories of cases, Qisas, hududd and tazir.  The Qisas is the equivalent of a personal injury action.  It encompasses all cases from murder to battery.  In these cases, upon conviction, the defendant or his family are the ones who decide upon the sentence, which can range from death or dismemberment to compensation.

The hududd is the second kind of case.  These are cases that are brought before the court based solely on violations of the Qur’an.  They include: adultery, blasphemy, defamation, sodomy, theft, intoxication, and armed violence.  There is no circumstantial evidence allowed and there must be 2 to 4 witnesses, who are male, to corroborate.  This is one reason why women who have been raped or abused are often treated as the criminals in Sharia society.

The third type of case is the tazir.  This encompasses all other crimes.

Sharia law and the United States legal system

Cases

Sharia law has become an increasing concern in the United States.  Many European countries have adopted a policy of allowing Sharia law in some contexts.  The English government has made it possible so that a number of Sharia courts of law exist where Muslims may settle actions involving divorce, contracts, and estates in the Muslim way.

Sharia law has not taken that course in this country and many legal cases have weighed heavily on the institution of Sharia law in the American legal system.  In one case a wife wished to get a restraining order against her husband for because he would forcibly rape and abuse his wife.  The man contended that Sharia law allowed him to do this and he should the restraining order should not be granted.  The trial court granted the husbands motion but on appeal the appellate court ruled that Sharia law should not excuse him from the state’s criminal code.

In all the courts in this country are open to interpreting Sharia law in situations involving divorce, family, and estates but every jurisdiction is different and the case law is not one sided in the least.  Last year Oklahoma passed a voter referendum known as the “save our state amendment.” The referendum made it law to prohibit judges in Oklahoma courts to consider Sharia, as well as international law when deciding cases.  There are many arguments for its unconstitutionality, namely that it violates the separation of powers in that the legislature cannot interfere with the workings of the judicial system.  Immediately after the passage of the bill a Muslim American named Awad filed suit to have the bill repealed based on the establishment clause of the U.S. Constitution.  The case has just gone to the 10th Circuit Court of Appeals and the results of the oral argument have not yet been determined.

The 3 strikes laws, which are codified in 26 states throughout the country and the federal government, are sentencing laws that mandate a prison sentence of 25 years to life for violent offenders who have been convicted of 3 or more offenses.

The State of Texas was the first State to enact such a law in 1974.   It is referred to as the Texas Habitual Offender Statute and states that “a defendant convicted of a felony is subject to a sentence of 2 to 20 years if (1) he has two prior felony convictions, and (2) the conviction for the first prior offense became final before commission of the second.”

The exact application of the 3 Strikes Law is different among the 26 States that recognize it.  Some States require that all three of the crimes be felonies where others, like California, require only that the first two crimes be violent, or serious, felonies in order to garner an enhanced sentence upon the defendant.

There are a number of theories that have gone into rationalizing the reasons for a 3 Strikes Law. The rationale that the State Legislature of California took in deciding to enact the 3 Strikes Law was that sentence enhancements restrict the ability of repeat offenders to commit additional crimes by removing them from the population, and the threat of long time incarceration discourages some offenders from committing new crimes.  There is also the mentality that those individuals who are repeat offenders are not capable of reform and should therefore be removed from society.

Most 3 Strike Laws came about through concerns of increasing crime rates in many States.  Where Texas’ version is not considered a “true” 3 strikes law the first law categorized as such was passed in Washington State in 1993.  California adopted its 3 Strike Law in 1994 after the murder of a two minor children by men with criminal records.  A California ballot initiative approved the new law by 72% and became law in March of 1994.  Since the passage of the California law 24 States had followed suit within a two year period.

The 3 Strikes Laws of every state vary a little differently from one another.  California, by far, is the strictest of them.  The law in California states that if an individual has committed two previous felonies then he/she will be subjected to a mandatory sentence of 25 years to life.  In California the nature of the third crime is irrelevant as individuals have been sentenced to life based on a third crime of petty larceny such as stealing videotapes.  The California law does not just pertain to third offenses.  The law also requires that a when an individual has been convicted of a previous felony and is subsequently convicted of a second, the sentencing for the second offense shall be doubled.  In short, this means that if an individual is convicted of a crime with a two year prison sentence, but it is his second felony, he may be sentenced to four years in prison.

Under the California Penal Code a strike is considered a “serious” or “violent” felony.  The “violent” crimes include, but are not limited to: murder, mayhem, battery, rape and felonies where an individual has used a firearm.  The “serious” crimes include: robbery, arson and kidnapping.  A list of all of the crimes that are applicable to California’s 3 Strikes Law can be found in California Penal Code Section 1192.7(c) and 1192.8(a).  In summary, if an individual is convicted of two of these crimes in the State of California that person can be imprisoned for life upon the happening of a third crime whether it be a felony or misdemeanor.

Other States differ in what they qualify as a felony worthy of the 3 strikes rule.  In the State of Pennsylvania an individual can only have the 3 strikes rule applied to them if the first two crimes are considered “violent.” The elimination of the term “serious” takes a number of possible felonies out of the equation and has resulted in less sentencing under Pennsylvania’s 3 Strikes Law.

In 2009 the Supreme Court of California ruled in favor of applying the 3 Strike Law to felonies that were committed by juveniles in the case of People v. Nguyen.  Prior to that decision it was unclear whether judges could consider the 3 strike law when one of the felonies occurred while the defendant was a juvenile.

The case stemmed from Nguyen’s possession of a gun as a convicted felon.  The California trial court sentenced him to 32 months in prison, twice the allotted penalty in the sentencing guidelines.  The court rationalized that because he had been convicted of assault in 1999, in a juvenile court proceeding, this was his second offense and as such California prescribes a mandatory sentence doubling.

The case of the People v. Nguyen went from all the way to the United States Supreme Court where the decision was upheld.  The defenses argument was that it was a violation a 2000 Supreme Court decision that required a jury trial in situations where sentences beyond the maximum term could be instituted.  The Supreme Court ruled that because he plead no contest to the 2005 charge he waived his right to have the 1999 conviction considered by the jury.

The 8th  Amendment to the Constitution states “excessive bail shall not be required, nor excessive fines, imposed, nor cruel and unusual punishments inflicted.” Even though this is from the Bill of Rights and applies to the federal government, the 14th Amendment’s due process clause subjects the Constitution to the States as well.

The California law is very broad with the sentencing factors that may be considered by a judge.  The law allows for consecutive sentencing.  In the case of People v. Casper the Supreme Court of California ruled that concurrent sentencing could be applied to the 3 Strikes Law.  In its holding the court noted that in instituting sentencing there was no statutory requirement that a judge was forced to consider consecutive or concurrent sentencing.  In summary this means that if an individual was convicted of a 3rd and 4th crime it is in the judge’s discretion to allocate a doubling of the minimum sentence.  This means that instead of a 25 year to life sentence an individual convicted of a 3rd and 4th offense may be sentenced to 50 years to life.

In the Supreme Court decision in Lockyer v. Andrade the decision was upheld.  The case involved a man, Andrade, who had been convicted of numerous crimes in the past.  In 1995, on two separate instances, Andrade stole a total of 10 videotapes from two different K-Mart stores.  Upon his conviction for the crime his sentence was deemed to run concurrently, meaning that instead of 25 years to life, under 3 Strikes, he would serve 50 years to life because the two crimes would be compounded.  Andrade argued that the sentencing was a form of cruel and unusual punishment that violates the 8th Amendment.  The case went to the Supreme Court and the Justices held that in order to be cruel and unusual punishment the penalty must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” In holding against Andrade the Court justified its conclusion that because Andrade had the opportunity for parole it would not be a violation of the 8th Amendment; even if he wasn’t eligible for 50 years.

A similar case brought to the Supreme Court, which was decided on the same day, is Ewing v. California.  This case stemmed from the theft of 3 golf clubs from a country club pro shop in California.  The man who was arrested, Ewing, had been convicted on numerous occasions of crimes ranging from petty theft, to assault, to burglary.  Upon his conviction for the grand theft of the golf clubs the trial judge sentenced Ewing to 25 years to life under California’s 3 Strikes Law.  Ewing appealed this through the California appellate system claiming, like Andrade, that is was a form of cruel and unusual punishment.  Upon reaching the Supreme Court Justice O’Connor wrote the opinion stating “These laws respond to widespread concerns about crime by targeting the class of offenders who pose the greatest risk to public safety: career criminals.”  She went on to note that such laws were a “deliberate policy choice” on the part of the State to remove those members of society who “repeatedly engaged in serious or violent criminal behavior.” The Court, in its holding, ultimately rationalized the sentencing as not violating the 8th Amendment by claiming that the purpose of such laws is to respond to individuals who partake in repeat criminal behavior and that as long as there is a rational basis for the 3 strikes sentencing then it will be upheld.

These two Supreme Court cases essentially eliminated the 8th Amendment argument involving the 3 Strikes Law.

In a 1996 case in the United States Court of Appeals for the Eighth Circuit the appellate court answered both these questions.  United States of America v. Farmer is a case that came about after the defendant was convicted of 4 counts in a United States District Court.  The counts stemmed from attempted robbery, conspiracy to commit robbery, use of a firearm during a crime of violence and being a felon in possession of a firearm.  For the first two counts the jury sentenced the defendant to life in prison based on the federal 3 Strikes Law.  The jury also added additional sentencing for the latter two counts.

On appeal the defendant made a number of arguments.  The ones relevant to this topic are Double Jeopardy and Ex Post Facto.  Double Jeopardy is a violation of the Constitution as found in the 5th Amendment.  The pertinent part of the Amendment states that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” The defendant’s argument in this case was that by using the 3 Strike Law for sentencing he was being sentenced for crimes that he had already served time for.  Although it is a valid argument to claim that a defendant brought to court to stand charges on a 3rd crime is being punished for the 1st and 2nd crime as well it was not persuasive on the court.  In upholding the constitutionality of the 3 Strikes Law the Appellate Court went on to hold that he “is not being punished again for previous offenses. Rather, these offenses are being taken into account in fixing his punishment for the instant crime” and “a recidivism provision does not violate the Double Jeopardy Clause.”

In the same case the Appellate Court was asked to rule again on the constitutionality of the 3 strikes law.  This time the question was whether this law violated the Ex Post Facto Clause.  The Ex Post Facto Clause is one of the few clauses in the Constitution that specifically applies to both the federal and state governments.  It can be found in Article 1, section 9 and 10 of the United States Constitution.  The clause specifically states that Congress’s powers are limited in that “No Bill of Attainder or ex post facto law shall be passed.”  An ex post facto law is a law that is passed after an individual has committed a crime and instead of being subjected to the law at the date of the offense he is instead held accountable to the new provision; despite the non-existence of it when the crime was committed.

Supreme Court Justice Samuel Chase, in his landmark opinion in Calder v. Bull cited four instances where an Ex Post Facto law violated the constitution.  These were “criminalizing actions that were legal when committed; or may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted.”

So one would logically come to the conclusion that the 3 strike law would, as Chase put it, “change or increase the punishment prescribed for a crime.” The defendant’s argument was on par with this statement, alleging that the 3 Strikes Law  increases the punishment of crimes committed before enactment.  This was not the holding of the Court in United States of America v. Farmer.  The Court, in upholding the 3 Strikes Law stated that “so long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.

What can be gathered by these two decisions in this landmark case is that a court will find the constitutionality of a 3 Strike Law based on the idea that the sentence is imposed for the third offense and that the individual is not being punished for previous crimes.  The court merely looks at the previous crimes to aide in the evaluation of sentencing for the current crime.

The issue of how much discretion a judge has in imposing sentences came about in a 1998 case called People v. Supreme Ct. In this case the defendant, Romero, was convicted of possession of 0.13 grams of cocaine, a felony that would grant 3 years imprisonment.  However, because Romero was twice convicted of violent felonies, including two burglaries, he was subjected to the mandatory 3 Strikes Law.  The trial judge found that this was excessive punishment for the crime and in his discretion, struck the two felonies from consideration and imposed a sentence of 6 years for the 3rd offense.  The case was appealed by the Attorney General and went to the California Supreme Court where the Justices found that the judge’s discretion may be used “in the interests of justice” but they may not be abused and must have proper basis for the decision.  The factors that are applicable in determining whether a judge has discretion include: the rights of the defendant and the interests of society; and whether the defendant may be deemed outside the scheme’s spirit given the defendant’s present felonies and past convictions.

In People v. Goode the Court of Appeals for the State of California made clear that the 3 Strike Law is not a discretionary sentencing measure.  This case stems from an incident in a prison where a two time convicted felon, Goode, assaulted a prison guard during his incarceration for one of the previous two crimes.  Goode argued, on appeal, that the court committed abuse of discretion by declining to strike either of his priors before imposing the mandatory 25 years to life sentencing authorized by the 3 Strike Law.  The court in Goode looked at the legislation that went into enacting the law to determine if 3 Strikes was mandatory.  The Court held that “the intent of the 3 strikes law was to restrict the discretion of the trial courts in sentencing repeat offenders.  The three strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but instead establishes a sentencing norm, carefully circumscribes the power of the trial courts to depart from the norm, requires an explicit justification of any ruling that departs from the norm, and creates a strong presumption that any sentence conforming to the norm is rational and proper.” Although this seems to contradict the 1996 ruling in Romero the court was quick to point out that the discretion to vacate prior strike “in furtherance of justice” is acceptable but must explain the reasons for doing so and the decision is reviewable.  The court went on to state that this defendant, due to his criminal history and violent nature, was within the “spirit of the 3 Strikes Law.”

There are differing opinions on the success of the 3 Strikes Law.  Many argue that it is too harsh of a punishment and at the very least should be applied to those individuals who have committed “violent” crimes, as Pennsylvania law applies, as opposed to “violent” or “serious”, as the California law stipulates.  Studies have shown that it has led to overcrowding in the prison population and that roughly half or the 3rd strikers are individuals who received life sentences for non-violent or non-serious crimes.

The opposite side of the argument is the deterrence and the societal issue.  Many advocates for the 3 Strike Law favor its mandatory position, getting behind the theory that an individual who has committed two or more violent crimes is a habitual offender and should be taken out of society.  They also point out that crime, in the States that have 3 Strike Laws, has dropped since the inception of the law.  Detractors from this point of view will not that crime in the State of California began to drop as early as 1990.  Either way, the 3 strikes law is codified and although there have been many attempts to repeal or alter its effects it seems like it’s going to be here permanently.