Posted on Thu, Mar. 06, 2003

‘Three Strikes’ Upheld by Court

STATE SENTENCING LAW RULED CONSTITUTIONAL

By Howard Mintz
Mercury News

Upholding California’s “three strikes, you’re out” law, a divided U.S. Supreme Court on Wednesday concluded that locking up criminals for decades or even life for petty crimes such as stealing videos, bicycles or golf clubs does not amount to cruel and unusual punishment.

In a pair of 5-4 decisions, the high court left intact the nation’s toughest sentencing law and most likely guaranteed the survival of laws in dozens of other states that followed California’s lead by imposing harsh prison terms for repeat offenders. California’s law goes further than any other state in the country because it allows potential life terms for a minor, non-violent “third strike,” such as shoplifting, if the defendant already has two prior serious or violent felony convictions.

For all practical purposes, the ruling slams the door on thousands of California prison inmates who may have been eligible for lesser sentences if the Supreme Court ruled that the state’s 9-year-old initiative went too far. Critics of “three strikes” vowed to mount a political fight to soften the law, but, at least for now, the Supreme Court ruling is the last word on the subject.

The justices determined that California’s tough approach does not violate the constitution’s ban on cruel and unusual punishment.

Dissenters’ examples

Four of the justices strongly disagreed, arguing that two California cases were clear examples of excessive, unconstitutional punishment disproportionate to the crimes.

In one case, Leandro Andrade, a San Bernardino County man, received a 50-years-to-life sentence for a third strike of stealing videos from a Kmart store. In the other case, Gary Ewing was sentenced to 25-years-to-life when he was convicted on a third strike in Los Angeles of grand theft for attempting to steal $1,200 worth of Calloway golf clubs from a pro shop.

The dissenters noted that Ewing and Andrade would receive dramatically lower sentences in other states or in the federal system. “If Andrade’s sentence is not grossly disproportionate, the principle has no meaning,” Justice David Souter wrote in one dissent.

The Supreme Court ruling was the biggest test of a law approved by voters in 1994 amid a public backlash over the murder of young Polly Klaas of Petaluma by parolee Richard Allen Davis. Backers of the law credit it with reducing California’s crime rate and removing violent, career criminals from the streets, while critics maintain it has cast an overly broad net that has put people in prison for life for petty crimes.

The Supreme Court ruling was the biggest test of a law approved by voters in 1994 amid a public backlash over the murder of young Polly Klaas of Petaluma by parolee Richard Allen Davis. Backers of the law credit it with reducing California’s crime rate and removing violent, career criminals from the streets, while critics maintain it has cast an overly broad net that has put people in prison for life for petty crimes.

The Supreme Court ruling was the biggest test of a law approved by voters in 1994 amid a public backlash over the murder of young Polly Klaas of Petaluma by parolee Richard Allen Davis. Backers of the law credit it with reducing California’s crime rate and removing violent, career criminals from the streets, while critics maintain it has cast an overly broad net that has put people in prison for life for petty crimes.

“What a difference a vote makes,” said Quin Denvir, Sacramento’s chief federal public defender and Ewing’s lawyer. “I thought we were going to win this thing because I thought we were right.”

Added Erwin Chemerinsky, a University of Southern California law professor who represented Andrade, “If this isn’t unconstitutional, it’s hard to imagine what would be. All the hope they had, there is nothing left — they are going to spend the rest of their lives in prison.”

Ruling overturned

The Supreme Court overturned an earlier ruling by the 9th U.S. Circuit Court of Appeals, which last year called Andrade’s sentence “grossly disproportionate.” The state appeals courts had upheld Ewing’s sentence, but the Supreme Court also agreed to review his case to address the overall issues posed by California’s three strikes law.

Andrade, before being sentenced for stealing videos, had a string of prior serious felonies on his record for home burglaries and marijuana possession, but no violent crimes. Ewing had a rap sheet of burglaries and robberies. Both Andrade’s and Ewing’s third strikes were so-called “wobblers,” potential misdemeanor offenses that frequently are bumped up to felonies under the three strikes sentencing scheme.

Nevertheless, the Supreme Court majority found that California was well within its power to adopt stricter sentences for repeat offenders like Andrade and Ewing.

“California’s justification is no pretext,” O’Connor wrote, joined by Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. “Recidivism is a serious public safety concern in California and nationwide.”

Overall, nearly half of California’s 7,200 “three strikers” have been sentenced to 25-years-to-life for non-violent crimes of some sort, from property theft to drug possession. The Supreme Court ruling cuts off any hope of challenging the constitutionality of those sentences, but opponents of three strikes have vowed to press a ballot initiative to change the law so that only serious, violent third strikes can produce the harsher sentences.

California is the only state that does not require that the third strike be a serious or violent felony.

Geri Silva, executive director of Families to Amend California’s Three Strikes, said opponents hope to get the issue on the ballot next year. But such efforts have failed, and critics of three strikes expressed concern that the Supreme Court may have dealt a fatal blow.

“They legislated away the concept of cruel and unusual punishment,” said Joe Klaas, Polly Klaas’ grandfather who has opposed three strikes sentences for non-violent offenses. “This is terrible news.”

Mike Reynolds, one of the original drafters of three strikes, applauded the ruling. Reynolds is the father of a murdered teen who once stood with the Klaas family in pushing for passage of the three strikes law.

“I’m sorry it’s a bad day for criminals, but it’s a good day for the citizens of this state,” Reynolds said.

Now that the Supreme Court has erased any doubt about the constitutionality of three strikes, the law’s application on non-violent third strikers may often depend largely on where a defendant is sentenced. Prosecutors vary from county to county on how aggressively they pursue a non-violent third strike, taking a less aggressive posture in Santa Clara County, for example, than in the Central Valley or counties such as San Bernardino.

Under a 1996 California Supreme Court ruling, judges also have discretion to bump a third strike in the interests of justice, and that likewise varies from case to case.

“That’s one of the ways three strikes plays out in this state,” said Franklin Zimring, a law professor at Boalt Hall School of Law and author of a study that questioned the fairness of three strikes. “Now what you need to do is avoid committing a crime in Bakersfield.”

Return to the SCOTUS decision index