Is 'Three Strikes' law cruel and unusual?

By Warren Richey

WASHINGTON - A man is convicted of shoplifting $153 worth of children's videos in California. He is a heroin addict with prior convictions for marijuana trafficking, prison escape, burglary, and petty theft.

Petty theft, such as shoplifting, is usually a misdemeanor, punishable by a fine or up to six months in jail. But under California's "Three Strikes and You Are Out" law, subsequent convictions for petty theft can also count as the third strike.

What is an appropriate sentence under California's Three Strikes law for the man who tried to filch nine tapes, including "Cinderella," "Snow White," and "Free Willie 2"?

Fifty years to life in prison.

Tuesday, the US Supreme Court is considering whether Leandro Andrade's prison sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment. The case, one of the most important of the term, will take a close look at mandatory-minimum sentencing measures that emerged as a key component of get-tough-on-crime efforts in the '80s and early '90s.

If the justices decide the sentences in question are unconstitutionally harsh, that could spark appeals of tough sentences across the country. On the other hand, if the court upholds the sentences, that could effectively dash the hopes of defendants who have been sentenced this way.

Mr. Andrade's case and that of a companion case involving another convicted shoplifter, Gary Ewing, will also examine to what extent appeals-court judges must grant deference to harsh sentencing schemes enacted by state lawmakers and local voters.

In answering that question, the justices may also clarify when mandatory minimum sentences are too harsh to survive constitutional scrutiny.

Each side's arguments

Lawyers for Andrade say his prison sentence is "grossly disproportionate" to the crime he committed and thus violates constitutional protections.

"The offense was minor but the punishment was enormous," Erwin Chemerinsky, a University of Southern California Law School professor representing Andrade, writes in his brief to the court. "Only first degree murder and a few other violent crimes would receive a sentence greater than Andrade's punishment."

California Attorney General Bill Lockyer says Andrade's 50-years-to-life prison sentence wasn't meted out exclusively as punishment for the shoplifting charge. He says it is an effort through the Three Strikes law to hold repeat offenders accountable for ongoing criminal careers.

"In a sort of alarmist fashion, [Andrade] argues that what California has done is tantamount to making overtime parking punishable by life imprisonment," Mr. Lockyer writes in his brief. "His assertion ignores his felony recidivism."

Lockyer adds, "At some point a state must be able to isolate an habitual criminal from society for long periods of time."

California's Three Strikes law was passed in 1994 both by the state Legislature and through a referendum known as Proposition 184. The effort was sparked by public outrage following the abduction and murder of 12-year-old Polly Klaas by a twice-convicted kidnapper on parole.

The law requires that anyone convicted of three felony or otherwise "serious" crimes be sentenced to a mandatory 25 years to life in prison. Critics of the law say that it should apply primarily to violent criminals, rather than to those guilty of property crimes.

In the second case under consideration by the high court, Mr. Ewing was sentenced to 25 years to life in prison after being convicted of attempting to shoplift three golf clubs worth $1,200 from a golf course pro shop in El Segundo, Calif.

Ewing has several prior convictions, including for residential burglary and robbery armed with a knife. At the time he attempted to steal the golf clubs, he was still on parole.

Lawyers for Ewing say his sentence is also grossly disproportionate. They argue that the Three Strikes law seeks to punish offenders a second time for the same crimes.

"Recidivism alone does not justify any and all sentences – even repeat offenders retain Eighth Amendment protection against cruel and unusual punishments," Quin Denvir, the federal defender in Sacramento representing Ewing, writes in his brief. He adds, "A first time offender who blew up the pro shop in an effort to kill the pro shop clerk or who kidnapped the clerk to rob him would be eligible for parole in California nearly two decades before Mr. Ewing."

One upheld, one reversed

One intriguing aspect of the two cases is that they each come to the high court under different circumstances. In Andrade's case, a federal appeals-court panel in California stuck down his sentence on Eighth Amendment grounds. In Ewing's case, state judges in California upheld his sentence.

Legal analysts disagree on the potential significance of this. Some say the court may use the two cases to declare that sentencing a shoplifter to life in prison violates the Constitution. Others suggest the court's real purpose will be to demonstrate the level of deference appellate judges must extend in such cases. At issue would be whether the Ninth Circuit judges complied with a 1996 law in which Congress made it much more difficult for federal judges to second-guess legal decisions made by state trial judges when the issues are presented in a habeas petition.

"Our sense is they took the Andrade case in order to once again spank the Ninth Circuit for violating the provisions of this act, which they can't seem to get right," says Michael Rushford, president of the Criminal Justice Legal Foundation in Sacramento.

Biggest 'Three Strikes' states

Many states have a three-strikes law, in which criminals face life in prison for a third offense. As of mid-1998, these states had convicted more than 100 people under such laws.

California 40,511Georgia 942South Carolina 825Nevada 304Washington 121

Source: The Sentencing Project