Metropolitan News-Enterprise


Monday, November 5, 2001


Page 1


Ninth Circuit Holds Three-Strikes Term Cruel and Unusual


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals Friday struck down a long sentence imposed on a shoplifter under the Three-Strikes law, calling it cruel and unusual punishment.

“Our decision does not invalidate California’s Three Strikes law,” Judge Richard A. Paez wrote for a divided panel. “Rather, our holding is limited to the application of the Three Strikes law to the unusual circumstances of [Leandro] Andrade’s case.”

Andrade was convicted in 1995 of stealing nine videotapes from two K-Mart stores. The charges were tried as felonies because he had been previously convicted of petty theft.

“As a result, Andrade, a non-violent recidivist who twice shoplifted merchandise worth a total of $153.54, received a life sentence in prison with no possibility of parole for 50 years,” Paez explained. Andrade was subject to the three-strikes law as a result of a 1983 case in which he pled guilty to several residential burglaries, classified as serious felonies under the three-strikes law.

The law provides that a defendant with two prior convictions for crimes classified as serious or violent felonies shall, upon conviction of any new felony, be sentenced to 25 years to life in prison. Andrade was convicted of two new felonies and received consecutive terms.

Separation of Powers

As originally enacted, the harsh penalty could only be avoided if the prosecutor moved to dismiss “strike” allegations. The state Supreme Court’s 1996 Romero decision held that the limitation was a violation of the separation of powers and held that judges could, in the exercise of reasonable discretion, dismiss priors over prosecution objection.

In Los Angeles County, District Attorney Steve Cooley has implemented a policy under which the prosecution generally moves that cases like Andrade’s, where the crime is relatively minor, be treated as second-strike violations, punishable by a doubling of the usual sentence. A high-level deputy may authorize a departure from that principle if unusual factors are present.

Cooley’s approach has not won great favor among his fellow district attorneys around the state, however, and the Court of Appeal recently ruled that there was nothing in the law requiring that the policy be followed. That appeal was brought by a defendant sentenced before Cooley took office.

Friday, however, Ninth Circuit Chief Judge Mary M. Schroeder joined Paez in concluding that Andrade’s sentence was “grossly disproportionate” to his crime. The opinion noted that Andrade had never been convicted of a crime of violence, that his serious felony convictions all arose from a single plea entered a number of years ago, and that no other state appears to permit such harsh sentencing for what amounts to an enhanced misdemeanor.

Sneed Dissents

Senior Judge Joseph Sneed dissented from the ruling, which appears to be the first to find any application of the three-strikes law to violate the Eighth Amendment. Sneed argued that U.S. Supreme Court precedent didn’t clearly support Andrade’s position, and that habeas corpus relief was therefore inappropriate under the Antiterrorism and Effective Death Penalty Act of 1996.

The nation’s highest court, in 1999, declined to review an Eighth Amendment challenge, brought by direct appeal, to the law brought by a defendant who drew a 25-year-to-life sentence after stealing a bottle of vitamins from a supermarket. Three justices, however, joined in an opinion suggesting that a lower court might find the law unconstitutional as applied if the defendant sought a writ of habeas corpus, while a fourth said the appeal should have been heard.

Andrade’s attorney, USC law professor Erwin Chemerinsky, said that while the immediate impact of the decision only affects Andrade, “it certainly opens the door” for other defendants with third-strike convictions for non-violent, non-serious crimes to seek relief.

California Secretary of State Bill Jones, who authored the three-strikes legislation and is a Republican candidate for governor, issued a statement urging Attorney General Bill Lockyer to take the case to the U.S. Supreme Court if necessary to uphold the law.

“The get-out-of-jail free card offered by the 9th Circuit threatens to return the most serious and violent repeat felons back on our streets,” Jones said in a statement.

A spokeswoman for Lockyer, Hallye Jordan, said lawyers in the office were looking at the panel’s decision and would decide within a few days whether to seek en banc review.

A spokeswoman for the district attorney said Cooley would not comment on the decision. Sandi Gibbons did acknowledge, however, that the ruling could wind up affecting “a lot of people” serving three-strikes sentences for recidivist petty theft.

The case is Andrade v. Attorney General of the State of California, 99-55691.


Copyright 2001, Metropolitan News Company