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Three-Strikes Provision Project

Three-Strikes Provision Project

In 2005, Taiwan introduced its "Three-Strikes Provision," modeled on the United States' Violent Crime Control and Law Enforcement Act of 1994. Its legislative purpose was to be "severe and lenient in parallel": by restricting repeat offenders' opportunities for parole, it sought to deter reoffending. The Taiwanese government's rationale for adopting the provision was the hope that this harsh criminal policy would deter repeat offenders and prevent recidivism — but has the Three-Strikes Provision actually achieved this?

What are "three strikes"?

Article 77, Paragraph 2, Subparagraph 2 of the Criminal Code provides: "The preceding provisions on parole from fixed-term imprisonment shall not apply in the following circumstances: 2. A recidivist who commits an offense punishable by a minimum sentence of five years or more of imprisonment and who, during parole, or within five years after completing a sentence of imprisonment or being pardoned after partial execution, intentionally commits another offense punishable by a minimum sentence of five years or more of imprisonment." This is commonly known as the "Three-Strikes Provision." In plain terms: the first offense is a first conviction; the second offense makes one a recidivist; if, during parole, after completing the sentence, or after being pardoned following partial execution, the person commits within five years yet another offense punishable by five years or more of imprisonment, the Criminal Code then "strikes them out" of eligibility for parole.

The core of the three-strikes system is thus to render such persons "ineligible for parole," hoping that this harsh condition will keep recidivists from offending again. After the provision was enacted, however, the population of inmates ineligible for parole in Taiwan's prisons surged — from 4 in 2007 to 66 in 2010, and to more than 800 by 2018 — leaving large numbers of inmates stuck in prison, far beyond what correctional institutions can bear.

No deterrence, only despair

"The truth is, people hit by the three strikes only find out they are ineligible for parole after they enter prison."

The JRF interviewed a former inmate, and from his account we learned that the Three-Strikes Provision may not achieve its deterrent purpose at all. Most offenders do not even know the provision exists, so it certainly cannot dissuade them; most inmates learn only in prison that they fall under it. Parole is not only a path to early reintegration into society — it is also a key incentive for inmates to maintain good behavior. When an inmate who has worked hard to maintain a good record in hopes of early parole is told they can never be paroled, is it not easier for them to act out? "I remember there were about ten people in our workshop who had been struck out. Two of them never spoke, and eight were locked in the violation cells almost every day."

Giving these people a chance to see the outside world is a form of hope — and when that hope is extinguished by the three strikes, inmates become more prone to violence and anxiety, making prison management even more difficult. Taiwan's custodial capacity is already insufficient; how are we to cope with an ever-growing population of people struck out by the provision?

The "incapacitation" mindset and the retreat of crime prevention

Regrettably, when a three-strikes provision without deterrent force is placed in the system, it merely provides a way to confine recidivists until death — to "incapacitate" them. This mindset ignores the causes and development of each instance of deviant behavior, shifting the focus from "preventing crime" to "passive warehousing."

This also means that crime and recidivism rates will not fall, and countless victims will continue to be produced. The only difference is that those who committed the offenses will be sealed behind high walls, forever abandoned in the shadows of the system, struggling and suffocating in the mire — while we lose the opportunity and the possibility of facing and addressing the root causes of crime.

Overcrowding and aging

As our society comes to accept the three strikes and the "incapacitation" it produces as the primary way of dealing with crime, prisons will hold more and more inmates ineligible for parole. As this population grows, the prison will gradually develop into an aging, closed miniature society. Aging brings more frequent health problems among inmates, and with limited custodial manpower and medical resources, the management burden on prison staff will only keep growing, leaving them able to handle inmates' health problems only passively and raising the risk of delayed medical care.

The risk of privatization

The three-strikes policy originated in the United States — so what problems has the United States, its first proponent, encountered? Severe prison overcrowding forced the government to outsource or privatize prison expansion and operation. When prisons become a means for capital to profit, the purpose of punishment degenerates into a commodity: harsher sentences exploit the people to guarantee the long-term growth of the prison industry, prison terms become numbers on financial statements, and people's liberty becomes a bargaining chip in the operation of capital.

Conclusion

Through strategic litigation in three lead cases, the Foundation is actively seeking Constitutional Court review of the controversies arising from the three-strikes system. Among them, the cases of Li O-kuo and Chang O-tsung, both assisted by the Foundation, were accepted by the Constitutional Court on November 8, 2023 and are being heard jointly (Constitutional Court 112-Hsien-Min-Zi No. 886). On November 6, 2024, the JRF also submitted an amicus curiae brief to the Constitutional Court in this case. We earnestly hope that through the constitutional litigation process, Taiwanese society will confront the fundamental problems of its criminal policy. In particular, we should take the American experience as a warning: a symptom-chasing strategy that substitutes "long-term confinement" for "effective prevention" not only fails to genuinely reduce crime, but may obscure structural problems in society and create new crises.

Taiwan's criminal policy should return to the core of the problem, analyze in depth the structural causes behind crime, and invest resources in effective prevention. We should not simply treat those who behave deviantly as "incapacitated," marginalize them, and then construct a false appearance of public order. The true goal is to build a sustainable society of lasting stability that upholds both human rights and social well-being.

Progress