on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Id. at pp. 284-285.)

It is appropriate to note that the defendant in Rummel had two prior convictions for similar theft offenses. lie was prosecuted as an habitual offender under a statute that required "whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary." (Codified at the time as article 63 of the Texas Penal Code.). California's Three Strikes Law, unlike the Texas statute, requires two prior "serious" or "violent" felonies to "trigger" its implementation. The issue, in my view is whether it is "cruel or unusual" punishment to sentence habitual criminals with serious and violent criminal records to 25 years to life in prison when they continue their criminal activity by committing a new felony?

As noted, what is often not mentioned when talking about the "triggering felony" that implements the law is the actual record of the offender. While the new felony may not be a "serious~~ or "violent" felony, it should not be looked at in isolation. In a study of 233 third strike felons (those with two prior "serious" or "violent" felonies who committed a new felony) the Sacramento Bee reported in April of 1996 that 84% of these offenders had at least one prior crime involving actual violence (including 17 homicides, 7 attempted murders, 81 sexual assaults and child molestations). In addition, these 233 offenders had an aggregate of 1,165 prior felony convictions including more than 300 robberies and more than 250 burglaries. In 25% of the 233 cases, the triggering offense was not just any felony but was indeed a violent felony. This means that each of these 233 felons who had committed a new felony not only had two prior "serious" or "violent" felony convictions but also had additional lengthy records - an average of five prior felony convictions in addition to the new "triggering" felony.

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