The US Supreme Court has voted to hear a US Ninth Circuit Court of Appeals decision ruling that 3-Strikes is unconstitutional and violates the Eighth Amendment relating to cruel and unusual punishment. That US Ninth court decision is available on this website and makes for good reading.

The 3-Strikes review is set for October 2002 and a decision is not expected until approximately July 2003.

While I won’t speculate the outcome, I will make a few comments to the merit of the decision by the US Ninth that sent this issue to the US Supreme Court.

The US Ninth ruling is the first of its kind and overturns over 200 appellate decisions that 3-Strikes is not cruel and unusual. Nineteen of these decisions have been published. It also overturns the California Supreme Court.

In my opinion, the US Ninth in its decision made a major mistake in concluding the law gave no leeway to judges by forcing them to sentence consecutively (one after the other) in handing down a 50 year term to a man who had stolen some video tapes, been caught, cited and released only to go back and do exactly the same crime over and be caught again, who also had at least 2 prior serious or violent convictions.

While they are correct in that statement, they totally ignore a judge’s ability to strike one or more strikes in the interest of justice. This would have reduced the sentence to a far lower level. Thus the law provides the flexibility to evaluate each case under its own merit. In this case that was the judge’s choice.

There is also an overall question as to whether the US Supreme Court’s should regulate or set punishment in state laws.

This is best expressed by the US Ninth’s own words from their dissenting opinion (cf. US Ninth Opinion section, p. 8; PDF format).

While the question of 3-Strikes effectiveness in stopping crime and saving tax dollars by reducing prison populations is a matter of record, the only place to attack is on the question of fairness and the question of whether it is constitutional?

If this ruling is overturned and thus keeps 3-Strikes in place, my guess is there will be future challenges on other issues.

So goes the struggle for softer laws by criminals, their families, and their attorneys and tougher laws by the rest of us. 041702

The Fresno Bee article