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2002

Section 1: Lockyer v. AndradeInstitute of Bill of Rights Law at the William & Mary Law School

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Repository CitationInstitute of Bill of Rights Law at the William & Mary Law School, "Section 1: Lockyer v. Andrade" (2002). Supreme Court Preview. 144.https://scholarship.law.wm.edu/preview/144

MOOT COURT ARGUMENT

In This Section:

New Case: 01-1127 Lok)er vAndrade (featured case)

Synopsis and Question Presented 2

New Case: 01-6978 Ezrin Gzlfornia (related case'*)

Synopsis and Question Presented 10

Supetr Curt to Hear Three-Stikes ChalngeDavid G. Savage 14

Diw to Keep Repeat Fdos in Prison Gains in Cd foniaJane Gross 17

Crins and PunitiesEvan P. Schultz 21

Pedhaps a Court Ruling in a 'Thr Strikes' Case Wdl Lead to Refrm jfthe DraconianLawErwin Chemerinsky 24

The MissingPiex in the Thre-Strikes PuzzleThe Honorable Clay M. Srnith 27

The Irsanity of the Thwe Stikes and Yore Out LawCharles Fannan 30

'Three Strikes' Works -- Don't Start TinkeeingMike Reynolds 34

* Lcdeyr v Andrade will be the featured case on the moot court. EWin uGoia also addresses theconstitutionality of California's Three Strikes statutes and, consequently, is included in the A ndrade moot courtmaterials.

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01-1127 Lockyer v. Andrade

Ruling Below (Andrade v. Attorney General of CA., 9 ,h Cir., 270 F.3d 743, 2001 U.S. App.Lexis 23720, 2001 Cal. Daily Op. Service 9423, 2001 DailyJournal DAR 11769)

The California Three-Strikes law, as applied to Andrade, who was sentenced to twoconsecutive terms of 25 years to life for petty theft, was found to be unconstitutional on thegrounds that it was cruel and unusual punishment, as his sentence was grosslydisproportionate to his crimes.

Questions Presented: (1) Does California's Three-Strikes law violate the 8th Amendment'sprohibition against cruel and unusual punishment when the sentence is 25 years to life for adefendant whose third strike conviction was for petty theft with prior theft-relatedconvictions or when the crime is stealing golf clubs?(2) Did the California courts make an "unreasonable application" of federal law within themeaning of the Antiterrorism and Effective Death Penalty Act's habeas corpus provision, 28U.S.C. @ 2254(d)(1), in its consideration of California's Three-Strikes law?

Leandro ANDRADE, Petitioner- AppellantV.

ATTORNEY GENERAL of the State of California; Ernest B. ROE, Warden,Respondents-Appellees

United States Court of AppealsFor the Ninth Circuit

Decided November 2, 2001

PAEZ, Circuit Judge:

[Andrade was convicted of two counts ofpetty theft for shoplifting $153.54 worthof videotapes from K-Mart. Petty theft isgenerally treated as a misdemeanor inCalifornia, but because Andrade hadseveral prior convictions (all non-violent)the counts were enhanced to felonies, andthen to third and fourth strikes under theCalifornia Three Strikes and You're OutLaw. He was sentenced to life in prisonwith no possibility of parole for 50 years.]

In this appeal from the denial of hishabeas petition under 28 U.S.C. § 2254,Andrade argues that his sentence violatesthe Eighth Amendment's prohibition

against cruel and unusual punishment.[ ... I

We hold that the California Court ofAppeal unreasonably applied clearlyestablished United States Supreme Courtprecedent when it held, on Andrade'sdirect appeal, that his sentence did notviolate the Eighth Amendment'sprohibition against cruel and unusualpunishment. Our decision does notinvalidate California's Three Strikes lawgenerally. Rather, we conclude that it isunconstitutional only as applied toAndrade because it imposes a sentencegrossly disproportionate to his crimes.

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I. BACKGROUND

A. California's Three Strikes Law

The purpose of the [California ThreeStrikes] law is to impose longer terms ofimprisonment on defendants with priorqualifying felony convictions or "strikes."16 P.3d at 179. Under the law, only"serious" or "violent" felonies [. . .1qualify as prior strikes. Cal. Penal Code §5

667(d)(1), 1170.12(b)(1). The "triggering"(i.e., principal) offense, however, may beany felony under California law. [... ]

Under the "second-strike" provision ofthe Three Strikes law, when a defendantwith one prior strike is convicted of anyfelony, the sentencing court must imposea sentence twice as long as the sentencethe defendant would have otherwisereceived. Cal. Penal Code 5 667(e)(1),1170.12(c)(1); Cerwra, 16 P.3d at 177.When a defendant with two prior strikes isconvicted of any felony, the "third-strike"provision mandates a sentence of at least25 years to life (i.e., an indeterminate lifesentence with eligibility for parole afterserving no fewer than 25 years). Cal. PenalCode §5 667(e)(2)(A), 1170.12(c)(2)(A).

In addition to the fact that the triggeringfelony need not be "serious" or "violent,"several other features of California's ThreeStrikes law combine to make it particularlysevere. * * * [(1) Defendants mayreceived two prior strikes from aconviction on two offense in one judicialproceeding; (2) prior strikes need only be"serious" not "violent;" (3) prior strikesmay arise from convictions prior to thelaw's enactment, in another jurisdiction, orwhile a juvenile; (4) strikes stay on thedefendant's record indefinitelx (5)consecutive sentences are imposed formultiple felonies committed for the third

strike; (6) defendants sentenced to life arenot eligible for parole until serving amandatory minimum term.]

B. Facts And Procedural History

[Prior to his current convictions, Andradehad been convicted of five non-violentfelonies and two misdemeanors in avariety of jurisdicitions dating back to1982. His current offenses wouldnormally be petty theft, a misdemeanor inCalifornia. However, because of his priormisdemeanor theft, Andrade was chargedwith petty theft with a prior. This is a"wobbler" offense, meaning that it can becharged as either a misdemeanor or afelony, at the discretion of the prosecutor.The trial court may also review the chargeduring sentencing.]

* * *

In Andrade's case, the prosecutor electedto charge his two petty thefts with a prioras felonies, thereby implicating the ThreeStrikes law. Andrade's three 1983 burglaryconvictions were charged as his first twostrikes. His petty thefts were charged ashis third and fourth strikes.

[The trial court found Andrade guilty oftwo counts of petty theft and sentencedhim two to consecutive terms of 25 yearsto life. He will not be eligible for paroleuntil 2046, after serving 50 years; he willbe 87 years old. The California Court ofAppeal affirmed his conviction. TheCalifornia Supreme Court denied hispetition for review.

II. JURISDICTION

[Although Andrade did not file his noticeof appeal until 50 days after the districtcourt entered judgment, instead of the 30

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days prescribed by law, the court agreedthe motion for extension of time was thefunctional equivalent of a notice ofappeal. The court discussed how itdistinguishes this case from a previouscontrary holding in Selph u Camd of City ofLos Angd, 593 F.2d 881, 883 (9th Cir.1979), and examined the issue in light ofrecent Supreme Court and Court ofAppeals decisions.]

III. STANDARD OF REVIEW

[The court reviewed de novo the districtcourt's decision to grant or deny a habeaspetition under the provisions of theAntiterrorism and Effective Death PenaltyAct ("AEDPA"). Under AEDPA, onlystate court decisions that are contrary tofederal law may be reversed. Suchdecisions may be contrary to federal law if(1) it fails to apply correct controllingauthority or (2) it incorrectly appliescontrolling authority.]

IV. EIGHTH AMENDMENT

The Eighth Amendment to the UnitedStates Constitution provides that there"shall not be ... cruel and unusualpunishments inflicted." At issue here iswhether this amendment proscribes asentence of 50 years to life for twoshoplifting offenses involving ninevideotapes worth a total of $ 153.54 by adefendant with several previousconvictions for non-violent offenses. TheCalifornia Court of Appeal, in its 1997decision affirming Andrade's conviction,concluded that it did not.

The constitutionality of life sentences fornon-violent recidivists is controlled byseveral decisions rendered by the Supreme

Court in the two decades prior to the statecourt's decision. In Runrl u Estelle, 445U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct.1133 (1980), the Court upheld a sentenceof life in prison with the possibility ofparole for a three-time non-violent felonyrecidivist. Three years later, in Sd/em uHdn, 463 U.S. 277, 77 L. Ed. 2d 637, 103S. Ct. 3001 (1983), the Court reversed asentence of life in prison without thepossibility of parole for a seven-time non-violent felony recidivist. Finally, inHamrdin u Mihigrn, 501 U.S. 957, 115 L.Ed. 2d 836, 111 S. Ct. 2680 (1991), adecision without a majority opinion,Justice Kennedy, writing for himself andtwo other justices, reconciled the Court'sprior decisions in Rwrd and Sd/em andarticulated a revised test. Under this test,the "Eighth Amendment does not requirestrict proportionality between crime andsentence. Rather, it forbids only extremesentences that are 'grosslydisproportionate' to the crime." Hamrrin,501 U.S. at 1001 (Kennedy, J., concurring)(quoting Sac/e, 463 U.S. at 288, 303). Ourcircuit and others regard JusticeKennedy's test as" the rule of Hamrin"because it is the "position taken by thoseMembers who concurred in thejudgement [sic] on the narrowest grounds...." Unitel State u Bland, 961 F.2d 123,128-29 (9th Cir. 1992) (internal citationand quotation marks omitted) ["see also"citation onitted.] [...]

A. Review of Supreme Court Case Law

Justice Kennedy's concurrence did notchallenge the central holding of Sdem thata grossly disproportionate sentence ofimprisonment violates the EighthAmendment. Harrin, 501 U.S. at 1001(citing Sc/em, 463 U.S. at 288, 303). Nordid Justice Kennedy question the Sdemmajority's conclusion that Sderris sentence

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of life imprisonment without thepossibility of parole for uttering a noaccount check was grosslydisproportionate, given the "'relativelyminor' "nature of Sdem's offenses. 501U.S. at 1002 (quoting So/A 463 U.S. at296-97). Rather, Justice Kennedyemphasized several points also made bythe Sdemmajority. 501 U.S. at 998 (statingthat "close analysis of our decisions [inRuwlnr and Sdem] yields some commonprinciples that give content to the usesand limits of proportionality review").These principles include the following: (1)courts should accord "substantialdeference" to legislative determinations ofappropriate punishments, Id at 998-99(citing Sdem 463 U.S. at 290); (2) theEighth Amendment does not require thatlegislatures adopt any particularpenological theory, 501 U.S. at 999, apoint implicit in the Sdem Court'sconclusion that legislatures are entitled to"substantial deference;" (3) divergences intheories of sentencing and the length ofprison terms are "inevitable" in ourfederalist system, IJ at 999 (citing Sdiem,463 U.S. at 291 n.17); (4) proportionalityreviews should be informed by objectivefactors, 501 U.S. at 1000 (citing Sdem, 463U.S. at 290); and (5) "the EighthAmendment does not require strictproportionality between cnime andsentence" but "rather, it forbids onlyextreme sentences that are 'grosslydisproportionate' to the crime," 501 U.S.at 1001 (citing Sdem, 463 U.S. at 288, 303).

Relying on these "common principles,"Justice Kennedy concluded that courtsneed not examine the second and thirdfactors specified in Sdem --themtrajurisdictional and inter-jurisdictionalreviews --unless a "threshold comparisonof the crime committed and the sentenceimposed leads to an inference of grossdisproportionality." 501 U.S. at 1005.While Justice White in his Harmdin dissent

considered this "an abandonment of thesecond and third factors set forth inSa/n," Id at 1020, Justice Kennedy arguedthat it was consistent with the SamCourt's "admonition that 'a reviewingcourt rarely will be required to engage inextended analysis to determine that asentence is not constitutionallydisproportionate, "'Id. at 1004 (citingSo/em 463 U.S. at 290 n.16).The means by which Justice Kennedydecided that Hamdin's sentence did notviolate the Eighth Amendmentdemonstrates the conformity between hisproportionality analysis and thatarticulated by the San Court. Rather thanemphasizing a different analyticalframework, Justice Kennedy based hisanalysis on the more serious nature ofHarlin's offense. * * * Thus, inconcluding that Harrlin's sentence didnot raise an inference of grossdisproportionality, Justice Kennedy didnot suggest, implicitly or explicitly, that hisanalysis would have led to a differentoutcome in SCem Accordingly, weconclude that Sdem remains good lawafter Harrlin, recognizing that we neednot consider Sdemis second and thirdfactors if we conclude under the firstfactor that a defendant's sentence doesnot raise an inference of grossdisproportionality to the crime. Id. at 1005[further citations omitted].

B. Application of Supreme Court CaseLaw

Following the revised three-factor test, wefirst compare Andrade's punishment tohis crimes. Because this comparison leadsto an "inference of grossdisproportionality," we then proceed tocompare Andrade's sentence to sentencesimposed for other crimes in Californiaand then to sentences imposed for similarcrimes in other jurisdictions.

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1. Comparison of Punishment and Crime

a. Harshness of the Penalty

Andrade was sentenced to twoconsecutive indeterminate sentences of 25years to life in prison. Because of a uniquefeature of the Three Strikes law, thesentencing judge had no discretion toimpose the sentences concurrently. Cal.Penal Code 55 667(c)(6), 1170.12(a)(6);Ingram, 48 Cal. Rptr. 2d at 264. Unlikemost sentences imposed underCalifornia's sentencing laws, Andrade'sminimum three-strikes term may not bereduced by credit for good behavior orworking while in prison. Cerwra, 16 P.3dat 181. Andrade therefore must serve aminimum of 50 years in prison before heis eligible for parole.

The unavailability of parole for a halfcentury makes Andrade's sentencesubstantially more severe than the lifesentence at issue in Runtrl. There,Rummel was eligible for parole in as fewas 12 years. In contrast, Andrade mustserve more than four times the length ofRuwrrl's sentence before he becomeseligible for parole [citation omitted].

Indeed, Andrade's sentence is thefunctional equivalent of the sentences atissue in Sa&m and Hamrlin --life in prisonwithout the possibility of parole. A "lifesentence without parole is the secondmost severe penalty permitted by law,"Harrrelin, 501 U.S. at 1001, and is the samesentence that the Supreme Court heldunconstitutional when imposed on aseven-time felony recidivist in Sder.Andrade was 37 years old at the time ofhis sentencing and will be 87 years oldwhen he is first eligible for parole. The lifeexpectancy of a 37-year-old Americanmale is 77 years. National Center forHealth Statistics, Center for DiseaseControl and Prevention, National Vital

Statics Reports at Table 2, Vol. 47, No. 28

(Dec. 13, 1999). It is thus more likely thannot that Andrade will spend the remainderof his life in prison without everbecoming eligible for parole.

b. Gravity of the Offense

As Harnrmlin makes clear, simply because asentence is harsh does not mean that it isdisproportionate to the crime. Weexamine the punishment in light of thegravity of the offense. We also recognizethat a "State is justified in punishing arecidivist more severely than it punishes afirst offender." Sdem, 463 U.S. at 296. Butthe enhanced punishment imposed for

the [present] offense 'is not to be viewedas ... [an] additional penalty for the earliercrimes, 'but instead as 'a stiffened penaltyfor the latest crime, which is considered tobe an aggravated offense because arepetitive one. "' Witte v United State, 515U.S. 389, 400, 132 L. Ed. 2d 351, 115 S.Ct. 2199 (1995) [further citations omitted].

[... ] Petty theft is similar in many respectsto the defendant's crime of "uttering a noaccount check" in Saln Both "involveneither violence nor [the] threat ofviolence to any person "and a relativelysmall amount of money. Id. at 296.Additionally, both are easily distinguishedfrom the defendant's crime in Hamrin,where Justice Kennedy emphasized theserious and often violent consequences ofdrug use and distribution and noted thatHamlin possessed enough cocaine forbetween 32,500 and 65,000 doses.Hamrlin, 501 U.S. at 1002. JusticeKennedy distinguished Hamelin's offensefrom the "relatively minor, nonviolentcrime at issue in Sc&em" concluding thatHarmlin's crime was "as serious andviolent as the crime of felony murderwithout specific intent to kill ...." Id. at1002, 1004. Andrade's crimes did not posea "grave harm to society," Id. at 1002, and

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the nine videotapes he stole wererecovered by store personnel as he exitedthe stores.

Moreover, petty theft is usuallyprosecuted as a misdemeanor. Byclassifying such conduct as amisdemeanor, the California legislaturehas indicated that petty theft is regardedas a relatively rmior offense [... ]

It is significant that the core conduct forwhich Andrade was sentenced is, in thefirst instance, classified as a misdemeanorrather than a felony. While the SupremeCourt frequently defers to legislative

judgments regarding the proper length ofimprisonment for felony offenses, it is lessclear that the same degree of deference isappropriate when extreme sentences are

imposed for misdemeanor conduct.[citations omitted]

Of course, Andrade was sentenced as arecidivist, and the gravity of his offensecannot be assessed independently of hisprevious criminal conduct. According tothe State, Andrade's criminal recordwarrants the enhanced punishment andtherefore justifies its severity. Not allenhanced sentences imposed on repeatoffenders are constitutional, however, asdemonstrated by the Sdem Court'sdecision to vacate the life sentence of aseven-time felony recidivist.

California's Three Strikes law imposes a25-year-to-life sentence on defendantspreviously convicted of two or more"serious" or "violent" felonies. Cal. PenalCode 55 667(e)(2)(A), 1170.12(c)(2)(A).Andrade's predicate "serious" felonieswere three counts of residential burglaryadjudicated in a single proceeding morethan a decade earlier. This contrasts withthe defendant in Runrl, who served timein prison for his first felony before beingconvicted and serving time for his second

felony --a fact the Court found significant.Rwrl, 445 U.S. at 278.

Even if we consider Andrade's entirecriminal history record --five felonies, twomisdemeanors, and one parole violation --it is still comparable, quantitatively andqualitatively, to that of the defendant inSdem Both defendants had three burglaryconvictions, although only Andrade wasconvicted of all three in a singleproceeding. All of the offenses were non-violent. Given that Andrade's sentence of50 years to life is a sentence of life withouta realistic possibility of parole, his case ismost analogous to Sd/em

c. Inference of Gross Disproportionality

A threshold comparison of the harshnessof the penalty and the gravity of thecrimes leads to an inference thatAndrade's sentence was grosslydisproportionate. Andrade will likely servethe remainder of his life in prison forshoplifting nine videotapes.

This inference of disproportionality is notdissipated by Andrade's prior criminalrecord. His prior "strikes" were non-violent burglaries, prosecuted in a singlejudicial proceeding, more than a decadebefore he was sentenced under the ThreeStrikes law. His other offenses, althoughnot considered at sentencing, were alsonon-violent. Moreover, due to a uniquequirk in California law, his recidivism wasdouble-counted by first enhancing hismisdemeanor petty theft offenses tofelonies and then enhancing them to thirdand fourth strikes.

2. Intrajurisdictional Comparison

An intrajurisdictional comparison is onlyrequired when a sentence presents an

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"inference of gross disproportionality."Hamrlin, 501 U.S. at 1005 [... I

Where, as here, the harshness of thesentence appears grossly disproportionateto the gravity of the offense and theculpability of the offender, we must assesswhether the disputed sentence is excessivewhen compared to "sentences imposed onother criminals in the same jurisdiction. "Sen, 463 U.S. at 292. See also Harlin,501 U.S. at 1005 (Kennedy, J., concurring)[further citations omitted]. [... ]

[The court found Andrade's sentence tobe grossly disproportionate because hissentence is exceeded only by firstdegree-murder a few violent crimes suchas some types of kidnapping, trainwrecking or derailing, and unlawfulexplosions. Other violent crimes, such assecond-degree murder, manslaughter,rape, or sexual assault, are punishedsignificantly less severely than Andrade.]

The State argues that, because Andrade isa recidivist, we must compare his sentenceto those of other non-violent recidivists inCalifornia. [... ]

Although we agree that comparisons tosentences for other recidivists are relevant,the problem with the State's argument isthat it attempts to justify theconstitutionally-suspect application of astatute by pointing to other applicationsof the same statute. We find this approachless than convincing.

That said, Andrade's sentence is unusualeven when compared to other sentencesfor non-violent recidivists under theThree Strikes law. [... ]

Our intrajurisdictional comparison ofsentences in California supports theconclusion that Andrade's sentence wasgrossly disproportionate to his crimes and

therefore proscribed by the EighthAmendment. [... ]

3. Interjurisdictional Comparison

[At least 40 states have some for ofrecidivist sentencing statute.] Ofthose jurisdictions with some form ofrecidivist sentencing statute, the Statesuggests only four where Andrade'striggering offense (petty theft with a prior)could qualify for recidivist sentencing:Rhode Island, West Virginia, Texas, andLouisiana. Even in these four states,however, Andrade could not receive asentence nearly as severe as he did underCalifornia's Three Strikes law on the basisof his two prior strikes for residentialburglary. If we also consider Andrade's

prior convictions not included in thecalculation of his sentence underCalifornia's Three Strikes law --his 1982misdemeanor theft offense and his twofederal convictions for transportation ofmarijuana --only in Louisiana is it possiblefor Andrade to receive a comparablesentence. Even then, the sentence wouldbe vulnerable to a challenge under theLouisiana state constitution.

The possibility that Andrade might havereceived a comparable sentence in oneother jurisdiction does not render hissentence constitutional under the EighthAmendment. SeN 463 U.S. at 299-300[citations omitted]. Indeed, that Andradecould receive a comparable sentence inonly one other state --and, even then, onlyif that state considered prior convictionsnot necessary for application ofCalifornia's Three Strikes law --supportsour conclusion that Andrade's sentencewas grossly disproportionate to his crimes.HarLin, 501 U.S. at 1005 ("The properrole for comparative analysis of sentences,then, is to validate an initial judgment that

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a sentence is grossly disproportionate to acrime.").

We thus conclude, following the revisedthree-factor test articulated by JusticeKennedy in Hanrdin, that: (1) Andrade'spunishment of 50 years to life raises aninference of gross disproportionality whencompared to his two petty thefts of ninevideotapes worth $ 153.54, even in light ofhis prior felony and misdemeanorconvictions; (2) Andrade's sentence issubstantially more severe than sentencesfor most violent crimes in California andis unusual even when compared to otherapplications of California's Three Strikeslaw; and (3) Andrade could not havereceived such a severe sentence anywhereelse, with the possible exception ofLouisiana. Accordingly, we disagree withthe California Court of Appeal andconclude that Andrade's sentence is sogrossly disproportionate to his crime thatit violates the Eighth Amendment to theUnited States Constitution.

C. Decision of the California Court ofAppeal

Of course, under AEDPA, meredisagreement is not enough. We may grantrelief only if the state court's decision is"contrary to, or involves an unreasonableapplication of, clearly established Federallaw, as determined by the Supreme Courtof the United States." 28 U.S.C.2254(d)(1).

[The court reviewed the state court'sanalysis and found its decision wasirreconcilable with the Saem decision, andthus in error.]

V. CONCLUSION

Our decision does not invalidateCalifornia's Three Strikes law. Rather, ourholding is limited to the application of the

Three Strikes law to the unusualcircumstances of Andrade's case. [...

Accordingly, we REVERSE the judgmentof the district court [with instructions onremand to issue the writ of habeas corpusif resentencing does not occur within 60days.]

SNEED, Circuit Judge, concurring in partand dissenting in part:

[The dissent disagreed only with themajority's holding that the punishmentviolates the Eighth Amendment.

The dissent argued that the test inHarndin favors upholding Andrade'ssentence, because (1) courts should grantbroad deference to the legislature in fixingpunishments for crimes, which in this casewas affirmed by a large portion of theelectorate; (2) no penological goal carriesmore Constitutional weight than anyother, so rehabilitation is not to bepreferred over incapacitation, especiallywhen it is the will of the electorate; (3) it isnot for federal courts to determine theappropriate length of sentences, asexperimentation with varied sentencing isa benefit of the federal system; and (4)review should be conducted in light ofobjective standards, which are noticeablylacking in comparing lengths of sentencesin terms of years.

The dissent found it persuasive that noother federal court had overturned theconviction of a habitual offender as beinggrossly disproportional to the crime forthe purposes being cruel and unusualpunishment.

Because the appellant was a repeatoffender, and a rational basis exists for thestate's sentencing structure, the dissentwould uphold the conviction.]

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01-6978 Ewing v. California(Note: Although the moot court will focus on the A ndrade case, the Court is also considering elements of the

Three Strikes law in Eing v dGonrni-- a distinct case raising related issues.)

Ruling Below (People v. Ewing, Cal.Ct. App., 2001 WL 1840666)

The court held that the trial court acted within the discretion given it by the Three Strikes

Law and that a sentence of 25 years to life for a defendant caught stealing golf clubs after

several prior convictions for non-violent crimes was not cruel and unusual punishment.

Questions Presented: (1) Did the trial court fail to exercise or abuse its discretion to strike

prior convictions in the sentencing of the defendant 25 years to life in prison for stealinggolf clubs?(2)Is such a sentence in violation of the 8th Amendment prohibition against cruel andunusual punishment?

THE PEOPLE, Plaintiff and Respondent,V.

Gary Albert EWING, Defendant and Appellant

Court of AppealsFor the Second District, California

Decided April 25, 2001

COFFEE, Associate Justice:

FACTS

In March of 2000, an employee of the progolf shop at the El Segundo Golf Courseobserved appellant enter the shop, look atgolf clubs for 10 to 15 minutes, andpurchase a small bucket of balls to use onthe driving range. Appellant asked fordirections to the driving range and walkedback to the golf clubs. There were othercustomers in the shop during this time.The employee observed that appellant was"noticeably limping" when he walked outof the shop and, instead of walking in thedirection of the driving range, he walkedtoward the parking lot. Realizing that

appellant looked "totally out of place," theemployee called 911.

Officer Richard Haney of the El SegundoPolice Department arrived and sawappellant walking stiff legged between twoparked vehicles. He saw appellant pullthree golf clubs out of his pants andarrested him. The employee testified theclubs were Calloway golf clubs priced at$399 each, they had the shop'sidentification number on them, appellanthad not paid for them, and he did nothave permission to take them out of thestore.

The Motion to Reduce the WobblerOffense to a Felony

In a bifurcated proceeding,prosecution presented evidence

thethat

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appellant had previously been convicted in1993 of first degree robbery and threeseparate residential burglaries, all seriousor violent felonies under the Three Strikeslaw.

At sentencing, defense counsel orallymoved the court to reduce the currentgrand theft conviction to a misdemeanorpursuant to section 17(b) and to strike "anappropriate number" of his priorconvictions. His counsel observed that, ofhis four prior serious felony convictions,two were nonviolent, appellant was 38years old, and his health problems wouldminimize the chance of future criminalactivity (he was ill with AIDS and blind inone eye). Defense counsel argued histheft-related offenses were drug relatedand he had not received assistance for hisdrug problem. The prosecution counteredthat appellant had suffered 10 convictionsand had repeatedly failed at probation andparole.

[The court dismissed Ewing's argumentthat the lack of an express ruling by thetrial court on the application of his priorconvictions to the current charges underthe Three Strikes law indicated a failure ofthe court to exercise its discretion.]

Alternatively, appellant argues the courtabused its discretion in denying thesection 17(b) motion by focusing solely onappellant's criminal history and failing toconsider other relevant factors [furthercitations omitted]. We reject thiscontention.

[The court found (1) that the appellantwaived his right to challenge the 17(b)ruling on the abuse of discretion grounds;(2) that the trial court was presumed tohave considered all relevant criteria unlessthe record showed otherwise; and (3) thatthe trial court acted well within its

discretionary powers to reduce a wobblerto a misdemeanor.]

Refusal to Strike the Prior Convictions

Appellant next contends the trial courtabused its discretion by refusing to strikeone or more of his prior serious felonyconvictions. We disagree.

Trial courts have limited discretion undersection 1385 to strike prior convictionallegations in Three Strikes cases. (People vSuenor Court (Rawm) (1996) 13 Cal.4th497, 529-530.) The trial court mustconsider "whether, in light of the natureand circumstances of his present feloniesand prior serious and/or violent felonyconvictions, and the particulars of hisbackground, character, and prospects, thedefendant may be deemed outside the[Three Strikes sentencing] scheme's spirit,in whole or in part, and hence should betreated as though he had not previouslybeen convicted of one or more seriousand/or violent felonies." (People u Willian(1998) 17 Cal.4th 148, 161.) The trialcourt should also consider the generalsentencing objectives under CaliforniaRules of Court, rule 410. (Alvze, supra,14 Cal.4th at p. 978.)

Trial court rulings on Ronrr motions arereviewed under the deferential abuse ofdiscretion standard. (A l2e, spra, 14Cal.4th at pp. 976-978.) Under thatstandard, a defendant who seeks reversalmust demonstrate the trial court's decisionwas irrational or arbitrary. It is not enoughto show that reasonable people mightdisagree about whether to strike one ormore of the prior convictions. (Ibid; PeopleSMers (1999) 69 Cal.App.4th 305, 309-310.)

Here, the trial court's sentencing decisionwas not irrational or arbitrary. Appellanthas a lengthy criminal record dating back

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to 1984, with numerous misdemeanor andfelony convictions. The record includesconvictions for theft, battery, possessionof a firearm, robbery, and burglary. Twoof his prior strike convictions were violentand involved the use of a weapon.Appellant's rehabilitative prospects arebleak He has continuously been on eitherprobation or parole since 1988 andcominitted the current offense after beingreleased for only nine months. Theprobation report found no circumstancesin mitigation. Given appellant's priorconvictions, background, andrehabilitative prospects, the trial court didnot abuse its discretion in concluding thatappellant was within the spirit of theThree Strikes law and denying his motion.

Cruel and Unusual Punishment

We also reject appellant's contention thathis sentence constitutes cruel and unusualpunishment in violation of both thefederal and state constitutions. He argueshis sentence is grossly disproportionate tothe offense of "stealing golf clubs." Wedisagree.

Under our state Constitution, the issue iswhether the 25-years-to-life sentence is sodisproportionate to the crime for which itwas imposed that it "shocks theconscience and offends fundamentalnotions of human dignity." (In re Lynch(1972) 8 Cal.3d 410, 424; People v Dilan(1983) 34 Cal.3d 441.) Under Lynh, threefactors are critical: (1) the nature of theoffense and offender, (2) the sentencecompared to sentences for more seriousoffenses in California, and (3) thesentence compared to sentences for thesame offense in other states. (Lynch, at pp.425-427.)

Appellant's sentence is constitutionalunder Lynh. As discussed above, thesentence is reasonably proportional to the

offense and offender. The severity of thesentence was properly affected by hisprior convictions under the Three Strikeslaw, a general recidivist history, and dimprospects for the future. Also, hissentence conforms to sentences for repeatoffenders under the Three Strikes law and,although he does not address the issue, itis also constitutionally proportional tosentences for repeat offenders in otherstates. (People u Martinez (1999) 71Cal.App.4th 1502, 1509-1516.) Numerouscases have held that severe sentencesunder the Three Strikes law do notconstitute cruel and unusual punishmentunder the federal or state constitutions.Cases upholding 25-years-to-life (or more)sentences for arguably minor offensescommitted after two or three prior strikeconvictions include Martine, stpra, Peopleu Goduin (1997) 59 Cal.App.4th 1084 andPeople u Cooper (1996) 43 Cal.App.4th 815.

Nor does his sentence violate the EighthAmendment. The United States SupremeCourt has "repeatedly upheld recidivismstatutes" against contentions that theyconstitute cruel and unusual punishment.(Paree v Raley (1992) 506 U.S. 20, 27.) InRunnwl v Estelle (1980) 445 U.S. 263, forexample, the Supreme Court upheld themandatory life sentence, under a Texasrecidivist statute, of a defendant convictedof obtaining $120.75 by false pretenseswith two prior felony convictionsinvolving nonviolent petty thefts. Thecourt observed that the sentence under arecidivist statute is "based not merely onthat person's most recent offense but alsoon the propensities he has demonstratedover a period of time during which he hasbeen convicted of and sentenced for othercrimes." (Id at p. 284.) Such a statuteserves the legitimate goal of deterringrepeat offenders" and of segregating the

recidivist "from the rest of society for anextended period of time." (ILbid) Just asthere was no Eighth Amendment

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violation in the mandatory life sentenceimposed for the nonviolent petty offensesin Rur4 by analogy appellant's 25-years-to-life sentence is not cruel and unusual.Appellant's sentence was justified becauseof his recidivism.

Evidence of the Prior Convictions

[The court found without merit Ewing'sargument that the prosecution did notprovide enough evidence that he had beenconvicted previously, despite theproduction of a packet containing "a

certification letter from the Departmentof Corrections, a copy of appellant'schronological movement history, anabstract of judgment from case No.NA018343, a fingerprint card withappellant's physical description andidentifying information, and a smallbooking photograph of 'Ewing, G.,''J15228,' dated April 18, 1998. All of thepages in the packet had appellant's nameon them, as well as the identical CDC No.'J15228.1

The judgment is affirmed.

13

Supreme Court to Hear Three-Strikes Challenge

Los Angeles Times

April 2, 2002

David G. Savage

The Supreme Court took up California'sdefense of its three-strikes law Monday,saying it will rule on whether it is crueland unusual punishment to send acriminal to prison for 50 years for stealing$153 worth of videotapes.

The case, to be heard in the fall, does notthreaten the state's authority to lock upfor life those who commit several violentcnmes. However, the court could rejectthe state's use of a minor theft or drugpossession as a "third strike" that triggersa long prison term. It is the first time thehigh court will rule on a direct challengeto a three-strikes law.

California Atty. Gen. Bill Lockyer calledthe justices' decision "welcome news."

Twice in recent months, the U.S. 9thCircuit Court of Appeals has overturnedthe convictions of repeat criminals whowere given a prison term of at least 25years for a third strike that was a pettytheft.

A Supreme Court ruling will "provideclarification to judges, prosecutors anddefense attorneys on how the U.S.Constitution's ban on cruel and unusualpunishment applies to California's three-strikes law," Lockyer said.

USC law professor Erwin Chemeninsky,who was asked by the 9th Circuit torepresent the two defendants, said it iscruel and unusual punishment to impose alife term for a minor theft. "California is

the only state where a misdemeanorshoplifting charge can be the basis for alife prison term," Chemerinsky said.

California's voters approved the three-strikes law in 1994 after the kidnappingand murder of 12-year-old Polly Klaas byRichard Allen Davis, a repeat criminalwho was on parole from an earlierkidnapping.

Most states impose extra, longer prisonterms on repeat offenders, and 26 stateshave a version of the three-strikes law.But California's law is considered the mostsevere because it can lead to a lifesentence for a criminal who hascommitted nonviolent offenses, such asshoplifting.

Among the nearly 7,000 Californiainmates who are serving life terms underthe law, 331 are there for a third strikethat was a petty theft, according to theCalifornia Department of Corrections. Anadditional 603 were charged with a thirdstrike for drug possession.

The state's judges have consistentlyrejected challenges to these stiff sentencesbased on the 8th Amendment.

But in November, the 9th Circuit Courtoverturned the 50-year sentence given toLeandro Andrade, a heroin addict fromSan Bernardino County.

In 1983, he was convicted for two homeburglaries. He was arrested later on

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suspicion of several thefts and convictedof a federal charge for carrying a smallamount of marijuana.

Then in 1995, after the state law tookeffect, he was stopped twice forshoplifting. On Nov. 4, he walked into aKmart in Ontario, stuffed severalvideotapes into his pants and walked out.He was arrested in the parking lot andcharged with stealing $84.70 worth ofmerchandise, but he was freed on bail.

Two weeks later, he tried again at a Kmartin Montclair. He stuffed severalvideotapes in his pants and walked out.Again, he was stopped by store personneland charged with stealing merchandise,this time worth $68.84.

A jury convicted him of the two pettythefts. Normally, California law treatssuch thefts as misdemeanors, punishableby six months in jail.

Prosecutors cited his two prior burglaryconvictions and, because of his record, thenew petty thefts were considered felonies.They also made for the third and fourthstrikes against him. The judge gaveAndrade 25 years to life in prison for eachtheft. Because Andrade was then 37 yearsold, his first chance for release wouldcome in 2046, when he is 87.

The state courts rejected his appeals, buthe filed a writ of habeas corpus thatchallenged his imprisonment asunconstitutional.

In its 2-1 decision, the 9th Circuit agreedand ruled that his sentence was "grosslydisproportionate" to his offense.

The decision turned on a 1991 SupremeCourt case, Harrdin vs. Michigan. In a 5-4vote, the justices upheld a life sentence for

Ronald Harrrlin, a former Air Forceofficer and honor guard at the funeral ofPresident Kennedy. Harndin foundhimself in trouble by the mid- 1980s, whenhe was stopped by police who found aone-pound block of cocaine in his cartrunk.

Under a Michigan law, Haradin wassentenced to life in prison. The highcourt's ruling in the case carried a mixedmessage. A punishment cannot be"grossly disproportionate" to the crime,the justices said, but they nonethelessupheld Harndin's life sentence as notexcessive for his drug crime.

Recently, the Harndin case has emerged asthe key precedent in the dispute overCalifornia's three-strikes law, and notsurprisingly, the two sides differ on whatit means. State prosecutors say thedecision shows that even extraordinarilystiff sentences are constitutional. Defenselawyers point to its statement that a"grossly disproportionate" sentenceviolates the 8th Amendment.

In citing the Handin case, the 9thCircuit's Judge Richard Paez of LosAngeles wrote: "Our decision does notinvalidate California's three-strikes law.Rather, our holding is limited to theapplication of the . . . law to the unusualcircumstances of Andrade's case. ... [His]sentence of life in prison with nopossibility of parole for 50 years is grosslydisproportionate to his two misdemeanorthefts of nine videotapes, even when weconsider his history of nonviolentoffenses."

Paez did not say what other cases mightbe affected by the Andrade ruling.

In February, however, another 9th Circuitpanel went further and overturned the life

15

sentences of two men who hadcommitted several violent offenses in thepast. Richard Napoleon Brown had fivefelony convictions on his record,including robbery and assault with adeadly weapon, when he was arrested forstealing a $25 car alarm from a Walgreen'sstore in Long Beach. This third strike senthim to prison for at least 25 years, asentence the 9th Circuit also called"grossly disproportionate."

Lockyer's office wasted no time in askingthe Supreme Court to take up the issueand to sweep aside the constitutionalchallenges to the California law.

The justices voted to hear the case ofLockyer vs. Andrade, 01-1127. They alsoagreed to hear a similar case that has adifferent legal posture.

Two years ago, Gary Ewing was seenwalking with an unusual stiff-legged limp

as he left the pro shop at the El SegundoGolf Course. As it turned out, he hadthree Calloway golf clubs in his pants leg--clubs that sold for $399 each. He had nineprior convictions on his record, and theattempted theft of the golf clubs sent himto prison for at least 25 years.

But unlike Andrade, Ewing's was a newappeal to the Supreme Court, not a habeaspetition on behalf of a longtime inmate.Congress has tightened the federal habeascorpus law and made it harder for U.S.judges to intervene in state cases.

By taking up Ewing vs. California, 01-6978, the Supreme Court gave itself theoption of ruling that a third strike for apetty theft is unconstitutional for currentand future cases, but not for prisoninmates who are challenging pastconvictions.

Copyright © 2002 Los Angeles Times

16

Drive to Keep Repeat Felons in Prison Gains in California

The New York Times

December 26, 1993

Jane Gross

When Mike Reynolds vowed a year and ahalf ago to find a way to keep repeatoffenders locked up for life, it seemed justa howl of pain by a grieving father whoseteen-age daughter had been shot in thehead at point-blank range by a man with along criminal record.

But Mr. Reynolds's personal crusade totighten sentencing for career criminals hasbecome a political juggernaut here inCalifornia, the scene in recent weeks ofseveral high-profile crimes, including theabduction and slaying of 12-year-old PollyKlaas at the hands of a twice-convictedkidnapper. Until Polly's body was foundearly this month, few outside this CentralValley city knew anything about the 1992slaying of Kimber Reynolds, 18, who wasleaving a restaurant with a friend when aman tried to steal her purse and insteadshot her with a .357 Magnum revolver.

Aimed at Chronic Criminals

And fewer still knew that her father, awedding photographer, had responded bywriting a ballot measure that woulddouble and triple sentences and limitparole opportunities for chronic criminalslike the one who killed his daughter, whodreamed of a career in fashion and wasburied in a silver lame prom dress of herown design.

But in recent weeks Mr. Reynolds's ballotmeasure has become a rallying cry.Frightened by the spread of randomviolence in their neighborhoods, struck by

how often those crimes are committed byrepeat offenders and frustrated by whatthey consider legislative inaction,California voters are signing petitions forthe Reynolds measure at the rate of 15,000a day.

Patterned on a Washington State initiative,although stricter in many ways, themeasure, known as Three Strikes andYou're Out, is expected to qualify easilyfor next November's ballot and, if currentpublic opinion holds, win by a landslide.And 30 other states are looking into suchinitiatives, which experts say could be thehot issue of next year's campaign, as termlimits were for a sour electorate in 1992.

The popularity of such measures can beunderstood by skimming the morningnewspaper or watching the evening news.Despite statistics that show a drop inviolent crime nationwide, each day offersa roster of victims who have been setupon in relatively safe places by assailantswith long criminal records.

That was the case with Uwe-WilhelmRakebrand, a honeymooning Germantourist killed in a rental car as he left theMiami airport. Or Luke Sheehan and hiswife, Mary, gunned down outside a Wal-mart in Oklahoma. Or James Jordan, thefather of the basketball star MichaelJordan, shot in the chest while napping inhis luxury sedan beside a road in NorthCarolina.

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Slain on Weekend Visit

It was also the case with Polly, snatchedfrom her bedroom during a slumber partyin rural Petaluma while her mother sleptnearby. And Kimber, who was slain noton the mean streets of Los Angeles, whereshe was studying fashion design, butduring a weekend visit here to be abridesmaid in a friend's wedding.

"What these crimes have done is showpeople that you can do all the right thingsand it doesn't matter," Mr. Reynolds said."You can lock your door, stay in the rightneighborhoods. But when you come upagainst one of these creeps, the rules don'tmatter. They're hunting you."

"When bad guys are killing bad guys,that's one thing," he added. "But whenthey start killing regular people, that'swhere you draw a line in the sand. That'swhat's driving people crazy."

From Trickle to Tidal Wave

That moment of collective horror camehere in California with the killing of PollyKlaas, a case that riveted the nation formonths and turned a trickle of support forMr. Reynolds's initiative into a tidal wave.

Until then, Mr. Reynolds's campaign was arelatively lonely one. On a shoestringbudget -- the money he and his wife,Sharon, were saving for a mountain cabin-- a small group of volunteers hadgathered 35,000 signatures, less than atenth of what was needed to put themeasure on the state ballot.

Around Thanksgiving, Mr. Reynolds wasinvited to appear on a San Francisco talkradio show, which inspired about 40,000people in the Bay Area to sign petitions.But still, the measure lagged far behind

the 385,000 signatures needed to put itbefore the voters.

Then, on the first weekend in December,Pollys body was found at an abandonedlumber mill. A San Francisco radiostation, KGO-AM, suggested thatlisteners vent their grief and frustration bycalling Mr. Reynolds and offering help inhis campaign.

By Monday morning, the voice mailsystem in the Three Strikes and You'reOut storefront headquarters had crashedunder the onslaught of calls. Within a fewweeks, more than 300,000 signatures weregathered. And these days, the letter carrierstaggers into the campaign office bowedunder the weight of his mail bag.

Angry Letter -Writers

The mail is angry, more punitive than themeasure itself, which mandates double theusual sentence for a second serious felonyand triple the usual sentence or 25 years tolife, whichever is longer, for a third. Bycontrast, the Washington State measure,which passed last fall with 76 percent ofthe vote, does not enhance sentences untilthe third felony.

One typical letter writer was not satisfied."What is needed is three strikes and you'redead," he said. "We can't afford towarehouse this load of human debris!"

Unlike the Washington State initiative, theCalifornia measure also restricts time offfor good behavior so that a felon mustserve 80 percent of any sentence ratherthan half, as is often the case now. It alsoincludes violent crimes committed byjuveniles 16 years and older, which theWashington measure does not.

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But repeat felons deserve worse than that,the volunteers at the Three Strikesheadquarters said, echoing the letterwriters. "I'm for stricter things, like noconjugal visits and shut down the prisonlibraries," said Carl Lastella, a retiredbanker.

Supporters of Mr. Reynolds's measure,including Gov. Pete Wilson and the StateAttorney General, Dan Lundgren, bothRepublicans, are confident that it will havea sweeping effect if it is passed. But that is

impossible to judge at this point.

No Estimate of Costs

In Washington, 40 to 70 felons a yearwere expected to meet the criteria of thatstate's initiative, corrections officialsprojected, but none have been chargedunder the statute in its first month. Nosimilar projections have been made inCalifornia, although there is widespreadagreement that more people would beaffected because of the stringency of themeasure and the size of the criminalpopulation here.

Nor has anyone predicted how much themeasure would cost if it went into effect, acalculation normally made after aninitiative has qualified for the ballot. It isassumed that extending the sentences ofso many felons would cost the statebillions of dollars in increased prisoncosts, while saving cities and countiessome money because there would befewer repeat prosecutions.

Measures like the one in Washington andthe one proposed here in California areexpected to be more effective than the so-called habitual offender laws on the booksin 17 states because they are broader andtheir application is mandatory. The 17state laws, by contrast, generally give

prosecutors and judges wide discretion

about whether to charge felons as habitual

offenders, and tend to be narrower aboutwhich criminals qualify for the longersentences.

There is broad consensus amongcriminologists that a small percentage ofrepeat offenders are responsible for thevast majority of violent crime. But expertsare divided about whether targeting repeatoffenders for life sentences is an effectiveremedy.

William J. Bennett, the former Secretaryof Education who is now the director ofEmpower America, a conservativeadvocacy group, said such measures are aworthy way to reduce the "frustrationlevel of Americans who see peopleengaging in violent acts and not doingtheir time."

A similar view is held by JosephMcNamara, the former police chief in San

Jose, who is known for his generallyliberal views about law-enforcementissues. Mr. McNamara said that he doubtsthe measure's effectiveness. Nevertheless,he said, its passage would "signal a changein the national philosophy," and "showthat our society does in fact condemnviolence."

'Expensive Old-Age Homes'

But opponents say the measure, howeversatisfying to frustrated voters, is badpublic policy because it would crowd theprison system with aging felons withouthaving much impact on the rate of violentcrime.

"It'll stop a few guys, and that could addup to big numbers in California, butmainly it will just create the mostexpensive old-age homes in the world,"

19

said Peter Greenwood, the acting directorof the criminal justice program at theRand Corporation, a Southern Californiaresearch center.

But stopping a few guys would be enoughfor Mr. Reynolds, who said his campaignfor new sentencing standards is what haskept him sane since that summer eveninga year and a half ago, when the youngestof his three children joined her twobrothers in a softball game and then wentout for coffee and cake with a friend.

As the couple left the Daily Planetrestaurant at 10:40 P.M., two young menon stolen motorcycles wheeled up to thecurb. One of them grabbed Kimber'spurse. When she struggled, the assailantstuck the barrel of his gun in her ear andpulled the trigger. She was unconsciousbefore she hit the pavement, and died 26hours later.

Shortly after Kimber's death, Mr.Reynolds went on the radio here, beggingfor a witness or an informer to help findhis daughter's killer. A friend of thegunman did just that, leading the police to25-year-old Joe Davis, a methampetamineuser who had been convicted and jailedrepeatedly for armed robbery, auto theftand drug use.

Nine Years for Accomplice

Mr. Davis died in a gun battle with thepolice. His accomplice, Douglas Walker,27, also a drug user with a long criminalrecord, pleaded guilty to armed robberyand accessory to murder. He wassentenced to nine years in prison. Undercurrent law, he will serve half that time.

Mr. Reynolds said that he is haunted byfeelings that he was not able to protectKimber in the final months and minutesof her life.

Once she called him from Los Angelesbecause her car would not start, and hewas struck by the realization that "therecomes a time you can't be there for achild." He later bought her a cellulartelephone so she could call for help incase of a highway emergency. But thephone was stolen.

And these were but precursors to Mr.Reynolds's ultimate helplessness. "Younever stop reliving the last moment's ofyour child's life and wondering what youcould have done to prevent it," he said."If I was standing there with a gun I don'tthink I could have stopped hin But Imight have shot him before he got downthe street."

Copyright © 1993 The New York TimesCompany

20

Crimes and Punitives

Legal Times

April 19, 2002

Evan P. Schultz

I don't know much about Dr. Ira Gore Jr.What I do know comes courtesy of theU.S. Supreme Court: He used to drive aBMW, he sued when he learned that theautomaker repainted his new car beforeselling it to him, and his lawyer persuadeda jury to award him $4 million in punitivedamages. I also don't know how muchhelp Gore has ever given to homelesspeople or heroin addicts. But I'm sure hewould be glad to know that his Alabamacase might help free some of California'ssomest pnsoners.

This happy occasion comes courtesy ofCalifornia's "three strikes" law. That's theone, now mimicked widely, that putspeople in prison for 25 years to life oncethey've pulled off a hat trick of crime.Problem is, while the law was aimed attaking our most dangerous and deadly offthe streets, it's also apt to punish society'smost poor and pathetic.

Consider a sample of those sentenced to25 years to life: Leandro Andrade, aheroin addict who stole nine videotapesfrom Kmart. Gary Ewing, an AIDSpatient who stole three golf clubs. (TheU.S. Supreme Court has granted certiorariin both cases.) Earnest Bray Jr., who stolethree videotapes from a shopping mall.Richard Brown, who stole a steering-wheel alarm from a drugstore. (The 9thU.S. Circuit Court of Appeals overturnedthe sentence in both cases.) And thenthere's Michael Riggs, a man whom theCalifornia Court of Appeal described as"motivated by homelessness and hunger"

when he stole a bottle of vitamins. (Thehigh court denied cert in 1999.)

The Supreme Court agreed to reviewEving u Gdfornma (the golf clubs) andLodJer v Andrade (the nine videotapes)next term. And although Dr. Gore lost hisown case before the Court six years ago,the result in the three-strikes cases shouldmake him a decent consolation prize.

THE PAINT JOB

In Gore's case, the U.S. Supreme Courtdecided to get tough -- on juries. Theythought that juries had gotten too toughon corporations, exacting from them whatthe Court saw as overly punitive damages.The undisclosed paint job in BMW ofNorth A nlm*ca v Gore cost the carmaker$601.37. An Alabama jury found in Gore'sfavor and assessed "actual" damages of$4,000 (presumably the amount the carlost in value as a result of beingrepainted). And then it hit BMW with $4million in punitives, which the AlabamaSupreme Court later reduced to $2million.

The Supreme Court, by a 5-4 vote,reversed and remanded the punitivesaward. (In the end, BMW had to pay$50,000 in punitives.) But that's not theinteresting part of the story. What'sinteresting is how the justices split on theissue, the reasoning they used, and howthe case might come back to help thethree-strikes inmates in California.

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Justice John Paul Stevens wrote themajority decision, joined by JusticesSandra Day O'Connor, AnthonyKennedy, David Souter and StephenBreyer. Justices Ruth Bader Ginsburg andAntonin Scalia wrote dissents, joinedrespectively by Chief Justice WilliamRehnquist and Justice Clarence Thomas.

All three of the most conservative justices-- Rehnquist, Scalia, and Thomas -- votedin favor of the high punitives. And threeof the liberals -- Stevens, Souter, andBreyer -- voted against them. They hadtheir reasons, of course. The conservativeshad good conservative principles,asserting that the majority was making upnew substantive rights under the dueprocess clause and impermissiblycurtailing states' rights. The liberals hadgood liberal reasons, asserting that theiropinion ensured procedural due processand limited the ability of states to burdeninterstate commerce.

More interesting is how Ginsburg voted.She acted as most people might expect aliberal to act, siding with the individualagainst the corporation. She argued that astate jury could consider similar acts by adefendant even if they had occurred outof state. And that there is no bright line todetermine when awards are excessive.And that the case was idiosyncratic anddid not require the Court's attention.

As for the "moderates" -- O'Connor andKennedy -- they apparently didn't thinkthat $2 million for failure to disclose apaint job was very moderate.

THAT'S EXCESSIVE TOO

Why bother marching through all this (acase about civil punitive damages that'sbased on the due process clause of the14th Amendment) to make a point about

two challenges to a three-strikes law (casesthat address criminal sentencing based onthe Eighth Amendment's guaranteeagainst cruel and unusual punishment)?Because, when it comes to punishment,the Court should try to be consistent --even across the line dividing criminal lawfrom civil law and the line dividing theEighth Amendment from the due processclause. This isn't just my opinion; it's theCourt's.

In Gore, Stevens made multiple referencesto the law of criminal sentencing. He citedSakm u Helm (1983) for the propositionthat "[t]he principle that punishmentshould fit the crime 'is deeply rooted andfrequently repeated in common lawjurisprudence."' He also referred tocriminal statutes of Alabama, California,Illinois, New York and Texas. Similarly,Scalia in his dissent referred to the mannerin which "criminal sentences can becomputed."

Also, look at the scheme that Stevensdevised in Gore to determine whenpunitive damages are excessive. TheCourt, he wrote, must look at the "degreeof reprehensibility of the defendant'sconduct," at the "ratio [between] theactual harm inflicted" and the punitivesassessed, and at "sanctions for comparablemisconduct" in either the civil or criminalrealm. Now, look at the standards that theCourt laid out in Sdlem for determiningwhen a criminal sentence is excessive. Themajority wrote that an analysis of whethera sentence is cruel and unusual shouldinclude "(i) the gravity of the offense andthe harshness of the penalty, (ii) thesentences imposed on other criminals inthe same jurisdiction; and (iii) thesentences imposed for commission of thesame crime in other jurisdictions."

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The Gow and Sdem tests are very similar.Both look at how bad the underlyingconduct was, how that compares to thepenalty, and whether the penalty is similarto penalties for similar actions. Thoughthe analysis of punitive damages takesplace under the due process clause, andthe analysis of criminal sentences takesplace under the Eighth Amendment, thetests are functionally equivalent.

(The Supreme Court pulled back a bitfrom its Sdem holding in its 1991 decisionHanrrlin u MiAbgn While Sdem issomewhat in limbo now, the Court will nodoubt try to clarify its staying power in thethree-strikes cases.)

STAYING THE SAME

So what happens now when the justicestry to decide the new California cases inlight of the Goe precedent? Here's whereconsistency gets important -- and wheremost of the justices should come outwhere you would expect. Theconservatives will no doubt be consistentby favoring limitless punitives and years ofimprisonment. And so will the threeliberals in the BMW majority by favoringlimits on both types of punishment.

Then there are Kennedy and O'Connor,who are often accused of knowing a legalviolation only when their unpredictableeyes see one. They seem bound for

consistency this time. In Gome, they votedin favor of limiting civil penalties. And inHarmin, they voted in favor of theprinciple of limiting criminal sentences.They didn't actually limit the sentence in

that case because the defendant wasconvicted of possessing enough cocainefor tens of thousands of doses. For lessdangerous offenders -- like those in the

three-strikes cases -- they're likely to

follow through with the constitutional rulethey've already supported.

That leaves Ginsburg. If she's consistentwith her reasoning and conclusion in Gore,she'll find herself with the conservativesagain, opposing limits on excessivepunishment. Let's hope the justice lookselsewhere for personal precedent. In the1999 three-strikes case of the hungry,homeless man who stole vitamins,Ginsburg joined Stevens' publishedopinion that denied cert but that alsoexpressed doubt about theconstitutionality of how California appliesits three-strikes law to petty crimes.

So the Court is likely to free these latter-day Jean Valjeans. That's good news forthe prisoners. And it's good news forconsistency. The good Dr. Gore mighteven agree that it's worth $3,950,000.

Copyright @ 2002 Law.com

23

Perhaps a Court Ruling in a 'Three Strikes' Case Will Lead to Reform of theDraconian Law

The Orange County Register

November 11, 2001

Erwin Chemerinsky

Punishing a person with a life sentence fora trivial offense is unconstitutional andinhumane. Yet, it occurs all the time inCalifornia as the "three strikes" law isapplied to people who never havecommitted a violent crime and whose lastoffense can be as minor as petty theft.Recently, the California Court of Appealupheld a sentence of 25 to life in prisonfor stealing a few cookies.

In earlier cases, such sentences wereupheld as to a person whose third strikewas stealing a slice of pizza and as to ahomeless person who stole a bottle ofvitamins. Twice in the last year, I haverepresented individuals on appeal whowere sentenced to ridiculously longsentences for very minor crimes.

One case involved a homeless man,Stanley Durden, who stole an umbrellaand two bottles of liquor from asupermarket on a cold, rainy night. Henever had committed any violent crime.Nonetheless, the trial court imposed asentence of 25 years to life in prison.

The California Court of Appeal upheldthe sentence and the Califomia SupremeCourt denied review. I represented theman in seeking review by the UnitedStates Supreme Court, but unfortunately itwas denied and he is in prison for the nextquarter of a century for shoplifting.

More recently, I represented LeandroAndrade in the federal court of appeals.Andrade was challenging a sentence of 50years to life in prison for stealing $153worth of videotapes from a departmentstore. He never had been convicted of anyviolent crime. He committed threeburglaries on the same day in 1986 andserved a prison sentence for these crimes.

He also had a marijuana conviction thatwas not considered as a prior strike. In1996, he was caught twice within a weekstealing videotapes from Kmartdepartment stores. Both times he wasseen doing this on store cameras and thetapes were confiscated; their total valuewas $153. Under California law, stealingless than $400 is a misdemeanor offense,"petty theft," that carries a sentence of nomore than six months in prison.

The maximum sentence for two counts ofpetty theft is a year in prison. ButCalifornia also has a law that says that thesame offense becomes a felony called"petty theft with a prior" if the individualhas a prior felony conviction. The statethus "double counts" the prior conviction.

First, it is used to convert a misdemeanorinto a felony. Then the enhanced felony isused as a third strike. The judge inAndrade's case imposed two sentences of25 years to life to run consecutively, or 50years to life altogether. Only first degreemurder and a few other violent crimes in

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California are punishable by a sentence of50 years to life.

Durden and Andrade are not atypical.According to California Bureau of Prisonstatistics about 350 people are servingsentences of 25 years to life in prison, ormore, when their third strike was pettytheft. There are people who are serving 25to life when their third strike wastrespassing, or possessing a small amountof drugs, or getting into a fight.

What can and should be done about this?First, courts should find that suchsentences are cruel and unusualpunishment in violation of the EighthAmendment.

For at least a century, the Supreme Courthas held that grossly disproportionatesentences are "cruel and unusualpunishment" in violation of the EighthAmendment. Surely, putting a person inprison for 50 years to life for stealing $153worth of videotapes is cruel and unusualpunishment. On Nov. 2, for the first timea court found that the three strikes law asapplied constitutes cruel and unusualpunishment.

The Ninth Circuit, in a 2-1 decision, ruledthat the sentence imposed on LeandroAndrade violates the Eighth Amendment.The United States Court of Appeals wrotea very careful and very narrow opiniondeclaring only that Andrade's sentencewas unconstitutional; the court did notinvalidate the three strikes law or indicatehow other sentences should be treated.

The Ninth Circuit's decision will inspire aflurry of challenges by prisoners who havebeen given very long sentences for trivialoffenses. The federal courts should followthe court's reasoning in the Andrade caseand hold that it is unconstitutional to

impose a sentence of 25 years to life, ormore, when the third strike is petty theft,or other minor non-violent conduct.

Second, California Attorney General BillLockyer should change his office's policyof defending such sentences on appeal.Lockyer's office is responsible for criminalappeals in the state. Fis oath of officeobligates him to follow the Constitutionand he could decide not to defend suchlong sentences for petty offenses.

Frankly, I cannot understand why Lockyerwants to fight to keep a person in prisonfor 50 years who never has committed aviolent crime and whose last offense wasstealing $153 worth of videotapes.Nothing in the law requires that Lockyerdefend sentences that he believes to beunconstitutional; indeed, his constitutionalduty is not to defend such punishments.

Finally, the California Legislature shouldact to amend the three-strikes law so thatit is not used to put people in prison forlong periods of time for minor non-violent offenses. The three strikes law wasintended to take violent criminals off thestreets for a very long time.

There is no indication that the Legislature,which enacted it, or the voters, whoratified it by initiative, ever wanted it toextend to non-violent crimes. It isirrational to impose such sentences; thecosts of incarceration vastly outweigh thebenefits to society in, at best, preventingsome future instances of petty theft.

Amending the three-strikes law so that itapplies only to those who have committedviolent crimes would save the state'staxpayers a large amount of money. Theissue is not whether to continue the three-strikes law. Rather, it is whether it makesany sense to put a person who never has

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committed a violent crime in prison for 50years for stealing $153 worth of videotapes.

This seems a sentence from anothercountry, in another century; it is inhumaneand indecent. Through the courts, theCalifornia attorney general and theLegislature relief should be given to thoseserving long sentences for minor crimes.The law must be changed so that no

longer are people put in prison for life for

minor cnmes.

Mr. Chemerinsky is a professor ofconstitutional law and political science atUSC.

Copyright © 2002 The Orange CountyRegister

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The Missing Piece in the Three-Strikes Puzzle

Orange CountyLawyer

February 2002

The Honorable Clay M. Smith

In 1994, both the legislature and theelectorate enacted substantially identicalstatutory schemes which were intended torespond to the human misery andeconomic loss caused by habitual criminaloffenders. See Penal Code 5 667(b)-(i) (thelegislative version) and Penal Code §1170.12 (the initiative version). Thesestatutory provisions, commonly known asthe "Three Strikes law," have been asource of increasing public debate sincetheir initial proposal. In general,proponents of the law perceive it to be ameasured and justifiable means ofreducing recidivism and its effects.Conversely, opponents see the law asunnecessarily and unfairly draconian.Regrettably, however, this debate almostinvariably omits what may be the mostvital piece of the three-strikes puzzle: thepower of the sentencing court to "strikeprior felony conviction allegations infurtherance of justice ...." People v.Superior Court (Romero), 13 Cal.App.4superth 497, 530 (1996).

An overview of the statute is helpful.Simply stated, the Three Strikes lawcategorizes a number of criminal offensesas "serious" (Penal Code 5 1192.7(c)) and"violent" (Penal Code § 667.5(c)). The twocategories are similar, but not identical,and include such crimes as murder, rapeand first- degree burglary. A convictionfor a first serious or violent felony (i.e., a"strike") is punishable by the sentencenominally prescribed for such offense. Asubsequent conviction for any felony,regardless of whether or not it iscategorized as serious or violent, where

the defendant has one prior strike, ispunishable by "twice the term otherwiseprovided as punishment for the currentfelony conviction." Penal Code 5667(e)(1). A conviction for anysubsequent felony, where the defendanthas two prior strikes, results in aminimum sentence of 25 years to lifeimprisonment. Penal Code § 667(e)(2)(A).See People v. Superior Court (Romero),supra, 13 Cal.App.4 superth at 505-06.

The bone of contention in the publicdebate is often that the third felonyconviction need not be serious or violent;any felony conviction will trigger thethird-strike sentence. Thus, for example, adefendant with two strike priors (i.e., two

prior convictions for serious or violentfelonies) who is subsequently convicted ofa relatively low-grade felony, such as pettytheft with a prior theft conviction orpossession of a small quantity of drugs forpersonal use, is subject to a minimum 25years to life sentence.

In recent months, the level of publicdiscourse pertaining to the Three Strikeslaw has intensified and it appears thatthose advocating a significant change inthe law may be gathering momentum.This momentum has been fueled by atleast three factors.

First, critics of the Three Strikes law haveidentified and brought to public attentiona growing number of cases in which arelatively minor felony conviction hasbeen the triggering event for a verylengthy sentence. For example, in a recent

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article, Professor Erwin Chemerinskydescribed a case in which his client was

given a sentence of 25 years to life inprison for stealing "an umbrella and twobottles of liquor worth $43 from asupermarket on a cold, rainy night."Chemerinsky, "Behind Bars," Los AngelesDaily Journal, November 16, 2001, at 6.Professor Chemerinsky's assertion is, ofcourse, an oversimplification. A more faircharacterization is that his client, like allincarcerated third-strike defendants, waspunished not for the third felony alone,but rather for continuing to engage infelonious conduct after two or more priorconvictions for serious or violent crimes.In any event, Professor Chemerinsky andother advocates for change are making astrong case that the Three Strikes law hasresulted in some unjustifiably longsentences.

Earlier this year, Justice Souter, in adissent from the denial of a petition forcertioran in a case which would havepresented an Eighth Amendmentchallenge to the Three Strikes law, statedthat "some 319 California prisoners arenow serving sentences of 25 years to lifefor what would otherwise bemisdemeanor theft under the Californiascheme." Durden v. California, 531 U.S.1184-85 (2001). Although this fact alonemakes the Three Strikes law neitherunwise nor unconstitutional, it doesdemonstrate that the law is being regularlyimposed in cases in which the triggeringoffense would under other circumstancesconstitute a misdemeanor punishable bynot more than six months.

Second, the Ninth Circuit recently struckdown a third-strike sentence as violativeof the Eighth Amendment's prohibitionagainst cruel and unusual punishment. InAndrade v. Attorney General, 2001 U.S.App.Lexis 23720 (9 superth Cir. 2001), thecourt held that a 50 year to life sentence

imposed upon a defendant whosetriggering felony conviction was pettytheft with a prior theft conviction was "sogrossly disproportionate to his crime thatit violate [d] the Eight Amendment to theUnited States Constitution." Id. at 61. Inthat case, the defendant's prior criminalconduct included three residentialburglaries, transportation of marijuana,escape from federal prison, and pettytheft; in all, five prior felonies and twomisdemeanors. Although it may seem thatMr. Andrade was the type of careercriminal for which the law was intended, amajority of the Ninth Circuit panel waspersuaded that the imposition of a three-strikes sentence was unconstitutional. TheAndrade case may bolster the critics'contention that many three-strikesentences are not just long, they areunconstitutionally long.

Third, at least four justices of the UnitedStates Supreme Court have opined thatthe application of the Three Strikes law incases in which the triggering conviction ispetty theft with a prior theft conviction"raises a serious question" under the EightAmendment. Riggs v. California, 525 U.S.1114 (1999). Although this denial of apetition for certiorari did not constitute aruling on the merits, it does signal that atleast a significant plurality of the justiceshave constitutional reservations regardingthe Three Strikes law.

As the debate intensifies, the body politicwill ultimately make a judgment about theThree Strikes law. The legislature, or thevoters via the initiative process, maydetermine to amend the law, perhaps torequire that the third felony convictionmust also be a serious or violent felony.Conversely, our collective judgment maybe that the law is appropriately structuredand that the positive aspects of itsconsequences outweigh the negative.

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Remarkably, to date the debate hasvirtually omitted a crucial factor--thepower of a sentencing court to apply theThree Strikes law in a manner whichavoids an unfairly harsh or evenunconstitutional result. In People v.Romero, supra, 13 Cal.App.4 superth 497,the California Supreme Court held that asentencing judge has the authority todisregard a prior strike for purposes ofsentencing. This principle entrusts to thesound discretion of a trial judge the powerto sentence a third-strike defendant as ifhe or she had one or even no prior strikes.

Of course, this discretion is notunfettered. A trial judge may only exercisethis power upon a determination that todo so would be in the interests of justice.Such a determination requires acomprehensive analysis of the defendant'scriminal history, background, character,and other relevant information and afinding, based on supporting factors,which must be articulated for the record,that the defendant "may be deemedoutside the schemes's spirit, in whole or inpart, and hence should be treated asthough he had not previously beenconvicted of one or more serious and/orviolent felonies." People v. Williams, 17Cal.App.4 superth 148, 161 (1998). Seealso, People v. Strong, 87 Cal.App.4superth 328, 335 (2001), hearing denied,2001 Cal.LEXIS 3966.

As a neutral observer of this debate, Isuggest that the Romero rule should bebrought to the forefront of the discourseover the future of the Three Strikes law.To those who support the preservation ofthe current structure of the law, Romeromay be an effective rebuttal to the call forchange. After all, Romero, at least in

theory, provides a clear and existing legalbasis for a trial court to avoid an unfairlyharsh sentencing result or, as was foundto be the case in Andrade, one whichviolates the Eight Amendment.

At the same time, to those who advocate a

change in the law, the underlying conceptof Romero may represent the seed of amore appropriate and easily achievableremedy. In other words, rather thanamending the law to eliminate thepossibility of imposing a third-strikesentence following a triggering convictionfor a non-senous or violent felony, anamendment codifying and perhapsrelaxing the principles of Romero and itsprogeny would encourage the exercise ofsuch discretion in appropriate cases whilepreserving for trial courts the ability toimpose a third-strike sentence followingconviction for a non-senious or violentfelony when the totality of thecircumstances so dictate.

As the debate continues, both sides andparticularly the decision-making body,must be aware of the impact of Romeroand its progeny. To date, the followingquestion has not been asked, but it mustbe: Can Romero (or perhaps a refinementthereof) adequately address the concernsof both sides? Stated another way, canRomero be adapted to prevent futureAndrade results while at the same timepreserving the power of trial courts toimpose a third-strike sentence wheredeserved, even though the triggeringfelony conviction, standing alone, isneither serious nor violent? Unless thesequestions are adequately considered, afully informed decision on the future ofthe Three Strikes law is not possible.

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The Insanity of the Three Strikes and You're Out Law

FrictionMagazine.corn

January 30, 2002

Charles Fannan

Even in his wildest dreams, LeandroAndrade probably never imagined thevideotapes, valued at $153, he stole fromtwo K-Mart stores would garner him a 50-year-to-life prison sentence. Andrade, a37-year-old heroin addict, is one of themany California criminals who were givenlife sentences which resulted from non-violent, low-level felony convictions.

Although Andrade received this sentenceunder California's Three Strikes Law, hiscase was monumentally different fromother Three Strikes cases because it wasdeclared unconstitutional by the 9th USCircuit Court of Appeals. The courtconcluded that Andrade's life sentenceviolated the Eighth Amendment banningcruel and unusual punishment. In its firstdecision against the Three Strikes Law,the appelate court has potentially openedthe door for legal challenges by manyother California prison inmates alsoserving time under this rigid measure --especially since more than half of the thirdstrike cases as of march 2001 involvednon-violent offenses.

Spawned by the brutal and highlypublicized murders of two young girls andthe growing demand to "get tough oncrime," the Three Strikes law, passed inCalifornia in 1994, requires that offendersconvicted of certain crimes who commitfurhter felony offenses serve fixedmnumum prison terms. Any adult whohas two or more prior serious or violentfelony convictions and is subsequentlyconvicted of any new felony faces life inprison, and any adult who has one prior

serious or violent felony conviction and isconvicted of another felony of anymagnitude will face a sentence that istwice that normally prescribed.

"Strikes" are "violent" and "serious"felonies and include: murder, attemptedmurder, rape, arson, robbery, kidnapping,and any felony in which the perpetratorpersonally inflicts great bodily injury onany person. For example, residentialburglary of an unoccupied house isconsidered a strike. There is no statute oflimitations on strikes -- any violent orserious felony conviction, even if it wasreceived 30 or 50 years ago, is stillconsidered a strike for purposes of thissentencing scheme. Even qualifyingconvictions incurred while a person was ajuvenile can be considered strikes when heor she reaches adulthood.

While half of the states in the US haveThree Strikes laws, only California andfive other states (Georgia, South Carolina,Nevada, Washington, and Florida) havebeen applying this directive withjurisprudential force. California, like manyother states, is taking an aggressive stancetoward violent, habitual criminals byinitiating this law which was initiallydesigned to remove violent criminals fromthe streets. It is becoming more evident,however, that this law is not as efficaciousas its supporters assert. Research hasshown the Three Strikes law isinconsistently applied, costly, and targetsmore non-violent, low-level felons thanviolent career criminals, resulting in lifesentences for offenses that would

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otherwise be billed as short-term countyjail time.

One of the key issues surrounding thethree strikes measure is its overall impacton crime. Ex-Attorney General DanLungren, one of the most ardentsupporters of this strict measure, states,"There is just no way to ignore thepositive impact of the Three Strikes Law.California's drop in crime isoutperforming similar downward trends inother parts of the nation."

True, but most likely not because of theThree Strikes law.

In fact, the overall crime rate in Californiaand the US has been declining since 1990-- four years before the Three Strikes lawwas implemented. A statistical analysis ofcrime indexes in the ten largest cities ofCalifornia, recently completed by theSentencing Project, indicates the ThreeStrikes measure doesn't significantlyreduce serious or minor crime beyond thealready existing downward spiral. Forexample, in 1995, murder rates declinedby 25 percent in New York City, whichhad no Three Strikes law while in thesame year murder rates increased by 42percent in Tennessee which hasimplemented a three strikes measure

(source: Coratiors TaLay, 1996).

While crime in California did decrease by41 percent (as opposed to the nationalaverage decline of 22 percent) it's likelyCalifornia's increased reduction in crime isa result of other factors such as changingdemographics, economic improvements,and better policing methods. California'seconomy has improved drastically sincethe early 1990s and there are significantlyfewer young males in this state.

The Three Strikes measure has resulted inprison overcrowding and wastes money

by giving males in their mid-30s and -40slife sentences. The average third strikerenters prison at age 36 and will serveabout 21 years. The average cost ofincarcerating an inmate in California isabout $25,600 per year, a figure thattriples when an inmate becomes elderlyand requires more health care. When itadds up, thats about $1.5 million toincarcerate a third-strike prisoner for 25years.

Prior to the Three Strikes law, more than90 percent of all criminal cases wereresolved by plea bargains. Now manysecond and third-strike candidates are notplea-bargaining because they are facinglengthy prison terms; many of thesedefendants are opting for costly jury trialsthat waste even more taxpayer money.

Perhaps the most egregious consequencesof this strict measure are the draconiansentences that are given to many third-strikers. One hapless victim of this harshlaw received a 25-year-to-life sentence forstealing a package of meat worth $5.62.Another man received a life term forshoplifting a pack of cigarettes, andanother unlucky third-striker was given a30-year-to-life sentence for stealing avideo recorder and a coin collection.These examples of judicial absurdity arenot exceptions to the rule, many third-strikers are serving life sentences becausethey were convicted of petty offensespunishable under the Three Strikes law.

The Eight Amendment explicitly bans theuse of cruel and unusual punishment andrequires the courts to dispense sentencescommensurate with each criminalconviction. Judge Richard A. Paez, one ofthe two judges who ruled that LeandroAndrade's sentence was unconsitutionalwrote: "The harshness of the sentenceappears grossly disproportionate to thegravity of the offense and the culpability

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of the offender." The court also notedthat kidnappers and murderers couldreceive less time than Andrade, who had aprior record of petty offenses.

Judge Joseph Sneed dissented and stated,"We have before us the clearest indicationpossible that severe, mandatory sentencesfor recidivist offenders is the expressedpenal philosophy of the citizens ofCalifornia."

But while the three Strikes law was passedby 71 percent of california voters, a recentsurvey has indicated Californians areunclear on the scope of the law. Though93 percent of those surveyed agreedpeople convicted of three violent orserious felonies should be sentenced to25-years-to-life, only 65 percent of thosesurveyed believed that a person convictedof three serious drug crimes shouldreceive a life sentence. Narrowing it downfurther, 47 percent concurred that aperson who commits three seriousproperty crimes should be given a lifesentence and only 13 percent agreed that aperson convicted of three "less serious"property crimes should receive a lifesentence.

Even though public support for thisstringent measure is steadily losingground, the proponents of this lawcontinue to fervently defend it. Secretaryof State Bill Jones, who initially sponsoredthis measure, referred to the Ninth Circuitcourt's decision as a "get-out-of-jail-freecard" that could potentially reverseCalifornia's diminishing crime rate.

A spokeswoman for Attorney General BillLockyer's office, which supportedLeandro Andrade's sentence, stated theoffice may ask the Ninth Circuit court toreconsider their decision. Although theSupreme Court has not made any rulingswith respect to the Three Strikes measure,

four of the Justices indicated that theywere bothered by a "unique quirk" in the

strict law -- the law allows shoplifting,which is a misdemeanor, to be raisedtwice to a felony and then to a ThreeStrike felony if the offender had a priorconviction of petty theft. Under othercircumstances, a misdemeanor petty theftresults in a maximum sentence of one yearin a county jail, but as a felony third strike,it yields a life sentence for each count witheach count served consecutively.

While it is apparent that there are violent,predatory career criminals who should beincarcerated for life, there is anoverwhelming amount of evidenceindicating there is major disparity withinthis sentencing scheme. With judges anddistrict attorneys able to decide if priorstrikes are able to be nullified or if anoffender should be charged under thethree strikes law, there is discrepancy inhow the law is applied from court to courtand county to county.

Additionally, there is no evidence thatsuggests this stern measure deters crime.A study regarding the deterrent effects ofthe Three Strikes law examined the crimerates of three major cities in California in1993, 1994, and 1995, and determined thatless than 11 percent of all felonies wereperpetrated by two or three-strike eligibleoffenders. Further, many violent feloniesare committed by people who are underthe influence of drugs, alcohol, or rage.These altered states of emotional andmental consciousness will have adetrimental effect on a person'sjudgement and will most likely render thedeterrent effects of any fixed mandatorysentencing law useless.

The financial impact of the Three Strikeslaw is enormous. The 1996/1997Governor's Budget proposed $3.4 millionto establish a judicial "Three Strikes relief

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team" of retired judges to hear thebacklog of cases. Los Angeles submitted atest claim with the Commission on StateMandates, seeking reimbursement of $169million from the state for the costs ofThree Strikes to the county in 1994/1995and 1995/1996. These expenditures arejust a fraction of the total annual cost ofthis measure and only pertain to the firstthree years in which the law wasimplemented. The cost of incarceratingnon-violent felons for life is clearly muchmore.

The taxpayer money that is spent on theThree Strikes measure and the

construction of new prisons could bediverted to California's educationalsystem. A Correctional Officer employedwithin the California Department ofCorrections receives a significantly higherannual income than the average teacher inCalifornia. Philip Zimbardo, an eminentsocial psychologist, asserts that educationis our "best insurance against crime" andhe makes reference to the fact that, for thefirst time in history, the state budget forcorrections has just equaled that forhigher education and will soon surpass it.

Copyright @ 2002 frictionmagazine.comand/or Charles Fannan

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'Three Strikes' Works -- Don't Start Tinkering

The Firsno Bee

February 22, 2002

Mike Reynolds

This month we saw the introduction of alegislative bill and a state initiative tochange California's "Three Strikes" law. Itis puzzling why anyone would want tochange a law that has been so graphicallyeffective in stopping crime. Still, thereremains a determined few who have andwill continue to do everything in theirpower to undo the very tool that has

improved the quality of life for us all.

After Sept. 11, our political leaders spokeof our government's primary directive "toprotect our citizens from all enemies, bothforeign and domestic," and to doeverything possible to create anatmosphere that was conducive forchildren to learn, for families to live andfor business to grow. This must first andforemost be an atmosphere free fromfear.

When there is fear on our streets --children can't learn, families won't stay,and stores won't remain open when theyare being robbed every night.

Simple reasoning

Those who question Three Strikes ask notthat it be abolished but ask only for a fewchanges to make it more "fair."

"Let's make all three of the strikes violentas do other states and the federalgovernment," they say.

Well, nearly eight years have passed sinceThree Strikes was enacted, so let's look atother states and their Three Strikes laws

and compare them with California's law.While it's clear to almost everyone that aperson with three violent priorconvictions should be locked up, howmany actually have been incarcerated inother states under their various laws? Theanswer is only a handful. Also noteworthyis that those states have not seen anygreater drop in crime than states withoutThree Strikes laws. There is a simpleexplanation.

When we drafted Three Strikes, our firstidea was to make violent feloniesnecessary on all three strikes. But in ourresearch, we found California had passedsuch a law in 1982 and called it thehabitual felon law. The question was,"Why was it not working?" The CaliforniaDepartment of Justice did a search on itsuse and found that only 41 criminals hadbeen incarcerated in 10 years under thehabitual felon law. That is only 4.1criminals per year in a state with 33million people, not what one would calltaking a bite out of crime.

We were torn between making a law thatwas "politically correct" and one thatwould actually make our streets safer. Weknew that if we made all Three Strikesviolent, with no other mandatoryconditions, we wouldn't have any greatereffect on the crime rate than did the 1982habitual felon law.

Of course, if nobody was being locked up,then no one would complain and wecould have passed Three Strikes veryeasily. But this law was never about

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understanding criminals; it has alwaysbeen about stopping them.

Earning strikes

Criminals, their attorneys and theirfamilies want to change Three Strikes. Butit is important to remember that thesepeople got to prison under Three Strikesthe old fashioned way- They earned it.That is how the Three Strikes law works.You have to earn those strikes, nobody isgoing to just give them to you. When westart making laws that criminals, defenseattorneys, newspaper editors and bleedingheart politicians approve of, well, that'show we got in this mess to begin with.

California crime rates have dropped attwice the national average since ThreeStrikes was enacted. Note also thatCalifornia prison populations have

dropped since the passage of ThreeStrikes.

Ten years before Three Strikes, Californiaadded 19 new prisons. Now, nearly 10years after Three Strikes, California will beclosing five prisons.

Three Strikes gives criminals three clearchoices: Leave California; get their livestogether and stop doing crime; or go toprison. A testimony to the effectiveness ofThree Strikes is that the most-askedquestion on our Web site is, "What statesdon't have Three Strikes laws?"

When we have a law that saves lives andtaxpayer money, we have a winner.

Copyright a 2002 McClatchyNewspapers, Inc., The Fresno Bee

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