U.S. Supreme Court Affirms Megan’s Laws, Three-Strikes

By David G. Savage
Times Staff Writer

March 6, 2003

WASHINGTON — The Supreme Court on Wednesday upheld two of the most popular tough-on-crime laws of the 1990s: California’s three-strikes law that sends repeat offenders to prison for life and Megan’s laws, which alert the public to sex offenders who have been released from prison.

Career criminals and sex offenders pose special dangers, the high court said, and the government is entitled to take extraordinary measures to protect the public from them.

The highly publicized murders of two young girls — Polly Klaas in California and Megan Kanka in New Jersey — outraged the public and triggered the wave of new state laws.

The notion that criminals could be rehabilitated, and past crimes forgiven, was swept aside in favor of harsher measures.

The Klaas murder led to the much-copied California law that denies parole to repeat offenders, while the Kanka slaying gave parents and the general public a new right to learn of sex offenders who may have moved into their neighborhoods.

In their rulings Wednesday, the court rejected constitutional challenges from those who said the laws go too far in some instances.

It is not unduly harsh to send thieves and petty criminals to prison for the rest of their lives, the justices said in a pair of 5-4 rulings that upheld the three-strikes law.

And states may require former sex criminals to have their names, addresses and photographs posted on the Internet, even if they are no longer dangerous and their crimes took place long ago, the court said in another pair of rulings that upheld Megan’s laws.

Those who believe these laws are unfair should take their complaints to the Legislatures that passed them, not to the federal courts, said Justice Sandra Day O’Connor, a former Arizona legislator.

“We do not sit as a ‘superlegislature’ to second-guess these policy choices,” she said, speaking for a 5-4 majority.

Three of the decisions overturned liberal rulings by federal judges in California and New York that had put limits on the laws. The fourth affirmed a ruling by a California state court that brushed aside a challenge to the three-strikes law as cruel and unusual punishment.

The 1993 murder of 12-year-old Klaas by Richard Allen Davis, a paroled kidnapper, galvanized public support to scrap a policy of leniency toward repeat offenders, the court noted.

Davis served only half of a 16-year sentence. Had he served the full sentence, “he would still have been in prison on the day that Polly Klaas was kidnapped,” O’Connor said.

A year later, California voters and the Legislature passed versions of the three-strikes law with the intent of keeping “serious” and “violent” criminals behind bars. Since then, 25 states and the federal government adopted similar measures.

These laws “effected a sea change in criminal sentencing through the nation (and) targeted the class of offenders who pose the greatest threat to public safety: career criminals,” O’Connor said.

But California’s law had an unusual quirk. It allowed prosecutors to charge a minor offense as a serious felony if the criminal had other convictions on his record.

In 1995, Leandro Andrade, an Army veteran and a heroin addict, was arrested for shoplifting five videotapes valued at $84.70 from a Kmart in Ontario. Two weeks later, he went to a different Kmart in Montclair, Calif., and stole four videotapes. And again, he was caught before leaving the parking lot.

He pleaded guilty to the petty thefts. But prosecutors in San Bernardino County noted that he had two burglary convictions in 1982 and convictions for selling marijuana in 1988 and 1990.

Under California’s law, the two petty thefts could be charged as a third and fourth strike against Andrade, and the 37-year-old was sentenced to 50 years in prison.

Last year, the 9th U.S. Circuit Court of Appeals in San Francisco said the sentence — life in prison for petty theft — was grossly disproportionate to the crime and was therefore cruel and unusual punishment.

Judge Richard Paez, a President Clinton appointee to the 9th Circuit, said the decision did not strike down the three-strikes law but only limited its use in the “unusual circumstances” of a petty theft that triggered the life term.

State officials say 344 inmates are serving long prison terms for a third strike that was a petty theft.

California Atty. Gen. Bill Lockyer appealed, and the high court reversed the 9th Circuit’s decision in Lockyer vs. Andrade.

O’Connor stressed that a criminal’s entire record should be weighed, not just the third strike that sent him away.

Regarding Andrade, she said this is not “the extraordinary case” of a punishment that is grossly disproportionate. Indeed, the 9th Circuit should not even have taken up Andrade’s federal appeal since the California courts properly rejected it, she said.

Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy agreed.

Justices Antonin Scalia and Clarence Thomas took an even more rigid stand, saying they could not imagine a prison sentence that would be cruel and unusual punishment.

Scalia said the 8th Amendment limits only “modes” of punishment, such as burning at the stake. It does not limit the length of a prison term, he said. Thomas agreed.

In dissent, Justice David H. Souter said, “If Andrade’s sentence is not grossly disproportionate, the principle has no meaning.” Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer agreed.

In the second ruling upholding the three-strikes law, the justices, by the same 5-4 vote, agreed with a California state court that affirmed a 25-year prison term for a repeat offender who tried to steal three expensive Callaway golf clubs from a pro shop at El Segundo Golf Course.

Gary Ewing, the defendant, had a series of convictions for stealing cars, thefts, burglaries and drug offenses. In 1993, he was convicted of burglary and robbery.

“His sentence is a long one, but so is his criminal record,” O’Connor said in delivering her opinion.

Breyer followed by reading a long dissent from the bench. He said he could find no other examples of such sentences for thefts. “Outside of California, such sentences are truly unusual,” he said.

Wednesday’s ruling leaves it to county prosecutors to decide when to invoke the three-strikes law.

Los Angeles Dist. Atty. Steve Cooley said he will not seek a third strike in petty-theft cases, and prosecutors from Orange County and San Francisco have said the same.

USC law professor Erwin Chemerinsky, who represented Andrade, said the ruling closes the door to further challenges in court.

“I think this makes it virtually impossible for any prisoner to challenge any sentence under three strikes,” he said. “If life in prison for shoplifting is not unconstitutional, I can’t imagine what would be.”

Taking the other side, lawyers for the Criminal Justice Legal Foundation in Sacramento praised the court for upholding the California law and for rebuking the 9th Circuit.

“Once again, the 9th Circuit has been caught bending the rules in order to undermine enforcement of a law it disagrees with,” said Charles Hobson, a lawyer for the group.

While Klaas’ murder triggered the three-strikes law, the 1994 murder of a 7-year-old New Jersey girl triggered the laws named in honor of Megan Kanka. She was killed by a paroled sex offender who had moved into her neighborhood.

Now all states have a version of Megan’s law, although they have chosen different means to alert the public to sex criminals who have been released from prison. Former offenders are required to register with the state and to supply their name, address and a current photo. In many states, this information is posted on Web sites.

Such requirements were challenged by several former offenders, identified as John Does, who said the postings had cost them their jobs and their friends.

In a Connecticut case, a federal judge and a U.S. court of appeals in New York ruled that the former offenders are entitled to a hearing to show they are not dangerous. It is unfair to post their faces on a state Web site with a list of dangerous sex criminals without giving them a chance to clear themselves, the 2nd U.S. Circuit Court of Appeals said.

But the Supreme Court unanimously reversed that ruling Wednesday.

In another decision, the court said the registration requirements may be imposed on offenders whose crimes took place in the 1970s and 1980s, long before Megan’s laws were enacted.

The 9th Circuit had said Alaska could not impose its registration requirement on people whose crimes were committed before 1994, when the law was enacted.

This extra, after-the-fact punishment violated the Constitution’s ban on ex poste facto laws, said Judge Stephen Reinhardt of Los Angeles.

In a 6-3 decision, the high court reversed that ruling and described the requirement to register as a “civil regulatory” measure to inform the public, not an extra criminal punishment.

Kennedy wrote the opinion in Smith vs. Doe. Stevens, Ginsburg and Breyer dissented.


Justices’ arguments:

Three-strikes law

The court upheld California’s three-strikes law aimed at keeping repeat criminals behind bars.

Majority opinion:

“When the California Legislature enacted the three-strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the 8th Amendment prohibits California from making that choice.”

Justice Sandra Day O’Connor


“I believe that the case before us is a rare case — one in which a court can say with reasonable confidence that the punishment is grossly disproportionate to the crime.”

Justice Stephen G. Breyer

Megan’s Laws

The court upheld Megan’s laws — versions of which are on the books in all states — which alert the public to sex criminals who have been released from prison.

Majority opinion:

“Sex offenders are a serious threat in this nation…. And when convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sex assault.”

Chief Justice William H. Rehnquist


The court’s opinion “will never persuade me that the registration and reporting requirements that are imposed on convicted sex offenders and on no one else … are not part of their punishment…. This constitutes a flagrant violation of the protections afforded by the Double Jeopardy and ExPost Facto Clauses of the Constitution.”

Justice John Paul Stevens


Source: U.S. Supreme Court

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