Metropolitan News-Enterprise


Thursday, December 13, 2001


Page 3


Lawyer Urges Ninth Circuit to Trash Three-Strikes Law for Shoplifters


By a MetNews Staff Writer


Sentencing shoplifters to potential life terms under the three-strikes law is cruel and unusual punishment, a Ninth U.S. Circuit Court of Appeals panel was told yesterday.

The harsh punishment imposed on recidivists by the three-strikes law constitutes an Eighth Amendment violation if the current offense is punishable as a misdemeanor, USC law professor Erwin Chemerinsky told the judges.

Chemerinsky represents Richard Napoleon Brown, who is serving 25 years to life in prison for stealing a $25 car alarm from a drugstore in Northern California, and Earnest Bray Jr., who is serving a similar sentence for taking three videotapes from a mall store in Long Beach.

Both defendants were convicted of recidivist petty theft, and sentenced under the three-strikes law because of prior violent felonies.

Their habeas corpus petitions were denied by district judges. Their appeals were consolidated before the Ninth Circuit and heard in Pasadena before Judges Stephen Reinhardt, Marsha Berzon, and A. Wallace Tashima.

Chemerinsky told the panel that Brown and Bray’s appeals are governed by Andrade v. Attorney General, 99-55691, decided Nov. 2 by another Ninth Circuit panel. In that case, in which the petitioner was also represented by Chemerinsky, another panel ruled that a 50-year-to-life sentence for stealing videotapes from two different stores was cruel and unusual punishment.

All of the cases, the professor argued, involve “a very trivial offense...versus an enormous punishment.”

Deputy Attorney General Stephanie A. Myoshi urged the judges to deny relief, arguing that the Brown and Bray cases are distinct from Andrade in crucial aspects.

Andrade, she noted, received what amounted to a life-without-parole sentence, while Brown and Bray could be released within normal life expectancy.

She also pointed out that Brown and Bray had been convicted of multiple violent felonies, while Andrade’s prior offenses—three residential burglaries—were classified as serious, but not violent, felonies under California law.

Chemerinsky, however, argued that the cases heard yesterday, Brown v. Mayle, 99-17261, and Bray v. Ylst, 99-56197, were “exactly like Andrade.” The constitutional issue, he said, is the disproportionate nature of the sentence in comparison with the crime for which it is imposed.

Recidivist statutes are not inherently unconstitutional, he acknowledged. But he distinguished his clients’ cases from Rummel v. Estelle, 445 U.S. 263 (1980), which upheld a life sentence under Texas law for a recidivist convicted of obtaining $120 worth of auto parts by false pretenses.

The defendant in that case, Chemerinsky explained, was convicted of conduct decreed to be a felony by the Texas Legislature, without regard to the defendant’s status as a recidivist. It is the state’s characterization of the underlying conduct, rather than the facts of the case or the nature of the past crimes, that govern the disproportionality aspect of the Eighth Amendment, he argued.

That prompted Reinhardt to ask whether it made any difference whether the prior offenses were “40 murders or one peaceful but serious felony.” It doesn’t make a difference, Chemerinsky said.

In California petty theft is a misdemeanor, punishable by no more than six months in jail, on the first offense. On a subsequent offense, the crime is a “wobbler”—it may be punished by up to a year in jail as a misdemeanor or by up to three years in prison as a felony.

Under the three-strikes law, that three-year maximum can be doubled if the defendant has a prior conviction for a serious felony, or increased to 25 years to life if there are two such prior convictions.

Brown and Bray received harsher sentences than Rummel, Chemerinsky noted, because the Texas law didn’t require a long minimum term that had to be served without possibility of parole.

Deputy Attorney General Bryan Means, sharing the state’s time with Myoshi, conceded in response to a question by Berzon that there were some types of conduct that were so inconsequential they could not be punished with a three-strikes sentence. Jaywalking was cited as an example.

But the court should defer, he said, to the Legislature’s judgment that when the conduct is repeated, petty theft is a sufficiently serious offense to trigger the harsher penalties, just as the Supreme Court deferred to Texas lawmakers’ judgment in Rummel. 

Speaking to reporters after the argument, Chemerinsky said that Assemblywoman Jackie Goldberg, D-Los Angeles, would be introducing legislation to require that the third “strike” be a serious or violent felony. He also said that Attorney General Bill Lockyer should “reconsider his policy of defending these ridiculous sentences.”

Lockyer, who is currently seeking reelection, voted for the three-strikes law and has consistently defended its constitutionality. Gov. Gray Davis, who is also up for reelection, has given no indication he would sign a bill changing the law.


Copyright 2001, Metropolitan News Company