Metropolitan News-Enterprise


Thursday, March 6, 2003


Page 1


Justices Uphold Application of Three Strikes Law to Theft Crimes


By KENNETH OFGANG, Staff Writer/Appellate Courts


The U.S. Supreme Court yesterday upheld long sentences meted out under the nation’s toughest three-time offender law, ruling that such terms are not excessive when imposed on defendants with histories of serious criminality even if the most recent offense is comparatively minor.

In a 5-4 decision, the justices affirmed Gary Ewing’s 25-year-to-life sentence for the theft of three golf clubs valued at less than $1,200 from the pro shop of the El Segundo Golf Course. Ewing’s prior record included three convictions for burglary and one for robbery, all based on offenses committed over a five-week period at a Long Beach apartment complex.

His sentence for those crimes was just under 10 years. He served under six years, was released on parole, and stole the golf clubs less than 10 months later.

Nine Terms Served

Before committing the offenses that sent him to prison, he served nine separate county jail terms, for battery, burglary, possession of drug paraphernalia, appropriating lost property, unlawfully possessing a firearm, and four separate thefts.

Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record,” Justice Sandra Day O’Connor wrote for the court. “Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole.”

The Legislature, O’Connor said, was entitled to make what Fifth District Court of Appeal Presiding Justice James Ardaiz, a principle architect of the law, called “a deliberate policy decision . . . that the gravity of the new felony should not be a determinative factor in triggering the application of the Three Strikes Law.”

Such legislative choices, the justice explained, are not inconsistent with the “narrow proportionality principle” that the court has followed in non-capital cases. That principle, the jurist said, allows states great leeway in determining how to balance the criminal justice goals of retribution, rehabilitation and punishment.

The Ewing appeal, and the companion case of Leandro Andrade, whose 50-year-to-life sentence for stealing videotapes from a store was thrown out by the Ninth U.S. Circuit Court of Appeals but reinstated yesterday by the same 5-4 majority, tested the application of past Eighth Amendment rulings to California’s unique 1994 law. O’Connor noted that voters approved Proposition 184 with 72 percent of the vote after the highly-publicized murder of young Polly Klaas by a recidivist felon who had been paroled after serving half of a 16-year-sentence for a prior kidnapping.

Sacramento attorney Quin Denvir, who represented Ewing, and USC law professor Erwin Chemerinsky, who argued for Andrade, both cited a 1983 ruling that threw out a life-without-parole sentence for a defendant convicted of bouncing a $100 check, his seventh non-violent felony.

Prosecutors, however, cited cases upholding a life sentence, with possible parole after a few years, where the defendant was convicted of three property crimes, and permitting a life-without-parole sentence for a first offender convicted of possessing nearly 700 grams of cocaine.

O’Connor, joined by Chief Justice William Rehnquist and Justice Anthony Kennedy, said the state’s interest in deterring commission of new crimes by persons with recidivist histories—sometimes referred to as “life [imprisonment] on the installment plan”—supports the conclusion that such sentences are not disproportionate to the crime committed.

Justices Antonin Scalia and Clarence Thomas went further, rejecting the concept of proportionality in non-capital sentencing altogether.

‘Rare’ Case

The dissenters—Justices Stephen Breyer, John Paul Stevens, David Souter, and Ruth Bader Ginsburg—acknowledged that state sentencing laws should generally be deferred to but argued that some crimes are so minor that they cannot trigger a life sentence without violating the Eighth Amendment, regardless of the defendant’s prior conduct.

“I believe that the case before us is a ‘rare’ case—one in which a court can say with reasonable confidence that the punishment is ‘grossly disproportionate’ to the crime,” Breyer wrote for the four.

In the Andrade case, the five-member majority held that the defendant’s sentence—consecutive 25-year-to-life terms for two separate thefts in which the total value of the merchandise stolen was $150—did not violate “clearly established law” and did not justify the narrow habeas corpus relief allowed by the Antiterrorism and Effective Death Penalty Act of 1996.

Charles Hobson, a Sacramento attorney who made that argument in an amicus brief for the Criminal Justice Legal Foundation, commented:

“Once again the Ninth Circuit has been caught bending the rules in order to undermine enforcement of a law it disagrees with.”

Chemerinsky saw it differently.

“The decision is very disturbing because for at least a century the Supreme Court has said that grossly disproportionate penalties violate the Eighth Amendment,” he told the MetNews. “If any sentence is grossly disproportionate, it’s putting a person in prison for life for stealing $160 worth of videotapes. I think the decision is going to make it difficult for anyone to challenge a sentence as being cruel or unusual punishment.”


Copyright 2003, Metropolitan News Company