Published March 6, 2003

The Washington Times

Court upholds ‘three strikes’ law

Frank J. Murray

The Supreme Court yesterday upheld California’s toughest-in-the-nation “three strikes” sentencing law, which “incapacitates” career criminals by imprisoning them for at least 25 years upon a third conviction, even if it is for a comparatively minor offense.

And in a second round of decisions that strengthens the hand of law enforcement, justices approved “Megan’s Law” registries of convicted sex offenders, and ruled that states need not hold hearings before posting an ex-convict’s photo and whereabouts on the Internet.

The 5-4 ruling on California’s sentencing law cleared the way for legislatures to decide whether their prisons seek “incapacitation, deterrence, retribution or rehabilitation,” said the ruling written by Justice Sandra Day O’Connor.

“Legislatures enacting three-strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety,” she said in announcing the decision from the bench.

The court explicitly upheld the sentence of Gary Albert Ewing, 38, a convict in poor health who got 25 years to life for grand theft of three golf clubs worth $1,197. He was previously imprisoned nine times for robbery, burglary and violating conditions of release.

“Petitioner’s sentence is a long one, but so is his criminal history,” Justice O’Connor said.

Justice O’Connor’s opinion was joined only by Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy. Justice Antonin Scalia and Clarence Thomas agreed with the judgment, but each wrote separately to say the Eighth Amendment does not govern disproportionate sentencing and cannot affect the three-strikes law.

The chief justice did not join that view as he did in 1991, when he sided with Justice Scalia in rejecting a challenge to a cocaine dealer’s sentence of life without parole.

California law authorizes severe sentences upon a third conviction, even for minor offenses, for persons previously convicted of two or more serious or violent crimes. The law was enacted by 1994 ballot initiative after the kidnap-murder of Polly Klaas, 12, by parolee Richard Davis.

Dissenter Stephen G. Breyer scoffed at the idea that the Constitution governs disproportionate bail and fines, but not prison terms. He delivered a long and impassioned denunciation of the ruling in the courtroom yesterday for himself and the three others: Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, attacked the court’s decisions, which he said reinforced “the unhealthy abandonment of rehabilitation” as a criminal justice goal.

“If we are going to discard the hope for rehabilitation, we should do so explicitly and rename every state “Department of Corrections” the “Department of Punishment,” said Mr. Goldman, a New York lawyer.

California Deputy Attorney General Donald De Nicola called the ruling “a categorical endorsement of the constitutionality of the California three-strikes sentence.”

In a related appeal, the court declined to decide whether 50 years to life was an unconstitutionally harsh prison sentence for Leandro Andrade, 43, another multiple offender who shoplifted nine videotapes worth $153.54. Instead the justices reversed on procedural grounds a 9th U.S. Circuit Court of appeals ruling that threw out that sentence.

At the Nov. 5 hearing on the sentencing appeals, state lawyers told the justices it would be constitutional for California to impose a third-strike sentence on violent felons who, once freed, steal so much as a gum ball or pose a public threat by chronic speeding.

“This case does represent the rare case where sentencing is grossly disproportionate,” Justice Breyer said from the bench. He said federal sentencing guidelines on a case such as Ewing’s would yield 18 months, and terms exceeding 10 years would not be possible in 33 states.

Sacramento public defender Quin Denvir, said the two rulings essentially give states carte blanche to legislate unrestricted sentences for chronic offenders.

“By a 5-4 vote they’ve decided that Mr. Ewing is going to die in prison for stealing three golf clubs,” said Mr. Denvir, who was Ewing’s attorney. “That is cruel and unusual punishment.”

Currently 344 petty thieves are serving 25 years to life for a third-strike felony committed after two serious or violent felonies.

In the first high-court review of Megan’s Laws, a 6-3 majority rejected claims that information about a conviction is equivalent to Colonial-era shaming through branding or scarlet letters.

In a separate appeal, the court unanimously rejected demands that states consider the dangerousness of sex offenders at a hearing before posting their photos.

On both sex-offender issues, which involved review of Connecticut and Alaska cases, the court said public-safety concerns trump assertions that individual rights are infringed when neighbors may learn where predators live.

“Any hearing on current dangerousness is a bootless exercise,” Chief Justice Rehnquist wrote on a Connecticut case, calling irrelevant the prospects an offender will strike again. “The law’s requirements turn on an offender’s conviction alone.”

Justice Kennedy wrote the separate ruling that upheld the constitutionality of sex-offender registries, which every state has, and reinstated the Alaska Sex Offender Registration Act. The 9th U.S. Circuit Court of Appeals had struck down Alaska’s act, calling it retroactive punishment.

“Any initial resemblance to the shaming punishments of the Colonial period is misleading,” Justice Kennedy said from the bench in announcing the judgment. He was joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, Souter and Thomas.

Two Alaskan sex offenders, who already had served their time, had successfully argued in the 9th Circuit that they were punished a second time when placed on the state’s registry.

The majority opinion said: “The act’s stigma results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.

“The act has a rational connection to a legitimate nonpunitive purpose, public safety, which is advanced by alerting the public to the risk of sex offenders in their community.”

Justices Stevens, Ginsburg and Breyer dissented on the grounds that the law does impose retroactive punishment, in violation of the Constitution’s Article I ban on ex-post facto laws.

Justice Souter did not join the majority opinion and wrote separately to say he supported the outcome solely because he “gives the state the benefit of the doubt in close cases like this one.”

Connecticut Attorney General Richard Blumenthal, who argued his state’s case, said the registry will be put online as soon as possible.

“The court powerfully recognized how important this information is to parents, teachers and caregivers, so that they can make informed decisions about the care and protection of their children,” Mr. Blumenthal said.

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