Metropolitan News-Enterprise


Friday, February 8, 2002


Page 1


Ninth Circuit Rules:

Three-Strikes Sentences for Shoplifting Violate Eighth Amendment


By KENNETH OFGANG, Staff Writer/Appellate Courts


Sentencing shoplifters to potential life terms under the three-strikes law is cruel and unusual punishment, the Ninth U.S. Circuit Court of Appeals ruled yesterday in a decision that could result in the release of hundreds of offenders from state prison. 

The panel ordered that Richard Napoleon Brown and Earnest Bray Jr. be resentenced within 60 days, although the state is likely to seek a stay pending further review.

Brown is serving 25 years to life in prison for stealing a $25 car alarm from a drugstore in Northern California. Bray is serving a similar sentence for taking three videotapes from a mall store in Long Beach.

Previous Case

Attorney General Bill Lockyer last week asked the U.S. Supreme Court to review Andrade v. Attorney General, 270 F.3d 743 (9th Cir. 2001), decided in November by another Ninth Circuit panel. In that case, the panel ruled that a 50-year-to-life sentence for stealing videotapes from two different stores was cruel and unusual punishment.

In each of the cases, the court ratcheted up the offense of petty theft from a misdemeanor to a felony because the defendant had a prior theft conviction, then treated the latest offense as a third “strike.” 

USC law professor Erwin Chemerinsky, who represented Brown and Bray, as well as Leandro Andrade, praised yesterday’s panel for a “good decision.” It goes beyond Andrade, he said, because it establishes that “the punishment has to be proportionate to the crime for which the person is being sentenced.”

The broad impact of the ruling, he said, depends on two factors—what the Supreme Court does and what other crimes, if any, are determined to be “so trivial” that the three-strikes law cannot be applied. Chemerinsky said he has been contacted by a number of lawyers anxious to challenge three-strikes sentences, particularly those whose clients were sentenced for possession of small amounts of drugs.

Any such efforts are likely to be opposed by Lockyer, a spokeswoman suggested. “The attorney general is a strong supporter of the current law,” Hallye Jordan told the MetNews.

Judge Marsha Berzon, writing yesterday for the panel, emphasized the limited scope of the panel ruling.

“Our decision does not hold the California Three Strikes Law unconstitutional, only its application to mandate a 25-year-to-life sentence for a petty theft offense such as those in these cases,” Berzon wrote. “Bray and Brown’s sentences of life imprisonment with no possibility of parole for 25 years are grossly disproportionate to their respective crimes—stealing three videotapes and a steering wheel alarm—even in light of their criminal records.”

Judges Stephen Reinhardt and A. Wallace Tashima concurred.

Single Terms

The state argued that the Brown and Bray cases were distinguishable from Andrade in that Brown and Bray each received a single three-strikes term rather than consecutive terms, and 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.

But Berzon said the cases were virtually indistinguishable. All three defendants, she emphasized, received sentences that could result in life behind bars for a relatively minor crime.

The issue “is one of proportionality—the relationship of the conviction to the crime,” she elaborated. “If Andrade’s 50-year-to-life sentence for two petty theft convictions was grossly disproportionate, it follows that a 25-year-to-life sentence is grossly disproportionate to one petty theft conviction. A combined sentence for two entirely separate offenses cannot be grossly disproportionate if each individual sentence is not grossly disproportionate.”

The sentences, Berzon went on to say, are cruel and unusual because they are disproportionate in comparison with sentences given for a number of serious crimes in California, and those given under recidivist laws in other states.

The judge, citing Andrade, said that only a few other states make petty theft a felony under a recidivist statute. And none of them appear to be as draconian as California, she 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, however, the sentence is 25 years to life if there are two prior convictions for violent or serious felonies.

Berzon contrasted that with such “three-strikes” states as Rhode Island, where the sentence can never be imposed for theft under $100; Texas, where Brown and Bray would have received no more than 20 years and been eligible for parole after five years or less; and West Virginia, where they would have been eligible for parole after 15 years at the most, and where the state Supreme Court has struck down three-strikes sentences where the crimes were non-violent felonies or the priors were dated.

Brown’s violent priors were 13 to 24 years old at the time of the offense, while had a violent prior offense eight years earlier, and three more violent priors that were at least 15 years old, Berzon noted.

The cases are Brown v. Mayle, 99-27261, and Bray v. Ylst, 99-56197.


Copyright 2002, Metropolitan News Company