Metropolitan News-Enterprise


Wednesday, November 6, 2002


Page 5


Justices Debate Constitutionality of California’s Three-Strikes Law


From Staff and Wire Service Reports


The U.S. Supreme Court struggled yesterday over the constitutionality of a California sentencing law that put a man who shoplifted children’s videocassettes in prison until 2046 and gave another man a life sentence for taking three golf clubs.

Their sentences are due to California’s Three Strikes law, which has been challenged as cruel and unusual punishment. The law requires tough sentences for repeat offenders.

“No other state in the country would impose a punishment like this,” said Erwin Chemerinsky, the attorney for the man who stole $153 worth of videotapes.

The three-strikes law was passed in 1994 after voters endorsed tougher sentences amid public furor over the kidnapping and murder of 12-year-old Polly Klaas. The law has been credited with lowering crime in California, and state officials said it gets career criminals off the streets.

“There comes a point when the state has a right to say enough is enough,” California Deputy Attorney General Douglas Danzig told the justices.

More than 7,100 inmates are serving third-strikes sentences, including about 350 who received life terms for petty offenses, officials said. The challenge was brought under the Eighth Amendment and asserts that the Three Strikes Law can result in cruel and unusual punishment when applied to non-violent felonies.

Both defendants had their sentences upheld on appeal in California state courts, lost their attempts to get habeas corpus relief in the federal district court, then won habeas corpus in the Ninth U.S. Circuit Court of Appeals.

The conservative U.S. Supreme Court has a penchant for overturning rulings by the left-leaning Ninth Circuit. On Monday, the high court overturned three Ninth Circuit decisions, including two grants of habeas corpus.

At yesterday’s high court hearing, Justice Antonin Scalia said the petty crimes may be more serious than they appear to be because of the potential for violence.

But Justice John Paul Stevens questioned if states could also give long prison sentences to people who repeatedly break traffic laws, because of public safety concerns.

Some justices seemed unsure how to handle the cases.

“We cannot convert this court into a sentencing commission,” noted Justice Stephen Breyer, who also said the crimes seemed minor.

Leandro Andrade, a heroin addict, had previous burglary convictions when he was caught shoplifting nine videotapes, including “Snow White” and Cinderella,” from a K-Mart. Under his Three Strikes sentence imposed by the San Bernardino Superior Court, he’ll be at least 87 when he gets out of prison.

Chemerinsky, his lawyer, has said the sentence amounted to the “death penalty” for his 37-year-old client.

The USC law professor and constitutional law scholar is currently on leave, teaching at Duke University’s law school.

Gary Ewing tried to steal three $400 golf clubs from the Lakes at El Segundo Golf Course and could have been tried on misdemeanor charges and faced a maximum of three years. But the crime was a wobbler, and the Los Angeles District Attorney’s Office filed felony charges and a Los Angeles Superior Court judge sentenced Ewing to life in prison with the possibility of parole after 25 years.

Grover Merritt, a deputy district attorney in San Bernardino County who handled the Andrade case, said the recidivist sentencing law had merit.

“These are not nice people, and they have been convicted of serious felonies,” Merritt said.

The California law requires a sentence of 25 years to life in prison for any felony conviction if the criminal was previously convicted of two serious or violent felonies. Andrade was convicted of two new felonies and received consecutive terms.

As originally enacted, only the prosecutor could prevent the harsh sentence by moving 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, too, could exercise reasonable discretion and dismiss priors over prosecution objection.

It is one of the toughest sentencing laws in the nation, although most states also impose longer terms for revolving-door criminals.

Michael O’Neill, a member of the U.S. Sentencing Commission, which sets federal sentencing policy, said the two cases elicit sympathy.

“The facts of these cases are easy from public policy standpoint. A father stealing videos for his kids? You don’t get better than that,” said O’Neill, who also teaches law at George Mason University. “It’s like stealing a loaf of bread to feed his family.”

But the Supreme Court is expected to be reluctant about interfering with states’ rights to set their own punishments.

“It’s one thing to strike down a mode of sentence, like the torture rack,” said Northwestern University law professor Ronald Allen.

He said it would be difficult for the court to spell out when a sentence is too harsh.

A ruling is not expected until next year. The court could narrowly address the way the law is applied in California, or it could look more broadly at how states may use similar laws to win very long prison terms for relatively minor crimes.

The cases are Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978.


Copyright 2002, Metropolitan News Company