California’s Tough Sentencing of Repeat Offenders Called ‘Cruel and Unique’
By Charles Lane
Washington Post Staff Writer
Wednesday, November 6, 2002
In 1996, a California drug addict was sentenced to two terms of 25 years to life in prison for shoplifting $150 worth of videotapes after two previous felony convictions. Yesterday, his attorney told the Supreme Court that his client’s case shows that the state’s effort to crack down on repeat criminal offenders has gone too far.
Erwin Chemerinsky, a professor of law at the University of Southern California, said that Leandro Andrade’s punishment, which was mandatory under the state’s 1994 “three strikes and you’re out” law, was so disproportionate to his crime that it violated the Constitution’s ban on cruel and unusual punishment.
Noting that California would not have punished a first offense of rape or second-degree murder so harshly, Chemerinsky said, “The punishment here isn’t just cruel and unusual, it’s cruel and unique.”
Yet by the end of two one-hour argument sessions in which the court examined both Andrade’s case and the separate matter of Gary Ewing, another drug addict serving 25 years to life for theft, a majority of the justices seemed inclined to uphold the California law.
“Why can’t a state say that for a man with a string of offenses . . . it’s time to get him off the streets?” Chief Justice William H. Rehnquist asked.
“We’ve said [in past cases] we’ll give great latitude to states,” Justice Sandra Day O’Connor added.
Both Chemerinsky and Quin Denvir, Ewing’s lawyer, urged the court to look at the sentences in relation to the offense that triggered them, rather than their clients’ lengthy rap sheets.
But Justice David H. Souter chided Denvir for conceding that a defendant’s criminal record might be “relevant,” then noting that “the focus should be on the present offense.”
“You’re trying to have it both ways,” Souter said.
Three-strikes laws were enacted in California and 25 other states during the mid-1990s, in response to public outrage over such cases as the 1993 kidnapping and murder of 12-year-old Polly Klaas by a paroled repeat offender. Many state law enforcement officials — and voters — continue to credit such laws for reducing crime by taking career offenders off the streets.
Although organizations such as the National Association of Criminal Defense Lawyers and the American Civil Liberties Union back the opponents of the California law, the Bush administration has weighed in on California’s side.
Assistant Attorney General Michael Chertoff told the court yesterday that the state’s law was appropriate for “someone who is repetitively unable to conform his conduct to the law.”
California’s three-strikes law is considered the toughest in the country, because it can be invoked when a third felony conviction is for a nonviolent crime — even one that could have been charged as a misdemeanor if the prosecutor had wanted to.
About 57 percent of the 7,000 people serving sentences under the California law were convicted of nonviolent third felonies, including 644 convicted of drug possession and 340 convicted of theft, state officials say.
As a result, the law has come under fire from civil rights groups, defense lawyers and even some prosecutors.
In the most authoritative endorsement yet of the critics’ argument, a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit last year ruled 2 to 1 in Andrade’s case that the Constitution “does not permit the application of a law which results in a sentence grossly disproportionate to the crime.”
Andrade had been convicted of five felonies, including first-degree burglary and a drug charge, before 1995, when he was arrested for stealing the videos. Petty theft is usually treated as a misdemeanor in California, punishable by six months in jail and a $1,000 fine. But Andrade’s previous felony convictions permitted the prosecutor to treat his last offense as a felony, activating the three-strikes rule. Andrade would be eligible for parole in 2046, when he would be 87.
California appealed the 9th Circuit’s ruling to the Supreme Court, arguing that Andrade’s sentence was constitutional and that the 9th Circuit had improperly found that it had authority to intervene in the case.
This means that the justices could reject Andrade’s case, Lockyer v. Andrade, No. 01-1127, without deciding the issue of his punishment’s constitutionality, if a majority of the court agrees with California that the 9th Circuit had no jurisdiction.
But the Supreme Court must address the issue of Ewing’s punishment, because his case, Ewing v. California, No. 01-6978, came to the court by a different route, after he failed to win his appeals in the California state courts and asked the justices to review it.
This could make a subtle difference in the outcome of the case, because Ewing’s record is less sympathetic than Andrade’s; it includes a burglary in which he used a knife.
Also, his theft case was more serious. In March 2000, Ewing was spotted by a clerk at an El Segundo, Calif., pro shop walking stiff-legged from the store to the parking lot. Police discovered that Ewing had left the shop with three Calloway golf clubs worth $400 each stuffed down his pants.
In a moment of levity yesterday, Justice John Paul Stevens, an avid golfer, asked Ewing’s attorney, Denvir, how he had managed to fit the clubs into his trousers. “Was he a very tall man, or were these irons?” Stevens asked.
“I don’t know, your honor,” Denvir answered, barely audible over the audience’s laughter.
Ewing, who has AIDS, would be eligible for parole in 2025, when he would be 63. When Justice Ruth Bader Ginsburg asked if Ewing was even still alive, Denvir answered that his client had become blind in one eye since going to prison.
Some of the strongest questioning of the California law came from Justice Stephen G. Breyer, who repeatedly emphasized that the penalties meted out to Ewing and Andrade were, to his knowledge, almost unprecedented.
“Is this by a factor of two or three higher than anyone has ever gotten in the United States for this crime? And if so, why shouldn’t I say this is way too much?” Breyer observed.
Also yesterday, the court declined without comment to block the execution of James Colburn, a Texan convicted of murder, whose attorneys had sought a stay on the ground that he was so heavily sedated with antipsychotic drugs during his 1995 trial that he was incompetent to stand trial. Only Justices Ginsburg and Stevens voted for the stay. Colburn’s execution was scheduled for today.