The Supreme Court announced Monday that it will decide whether Leandro Andrade's 50-year minimum sentence for stealing $150 worth of videotapes is cruel and unusual punishment proscribed by the Constitution, and whether walking out of a golf-pro shop without paying for three golf clubs merits a sentence of 25-to-life for Gary Ewing. The court will rule jointly on the two cases, Lockyer v. Andrade and Ewing v. California, resulting from California's draconian three-strikes sentencing laws.
Under California's three-strikes law, judges must impose a sentence of 25-to-life for any felony conviction if the defendant has two previous "serious" or violent felonies. Serious felonies include most drug offenses, as well as crimes such as residential burglary. The California law also includes a "wobble" provision, under which crimes normally charged as misdemeanors can be charged as felonies if committed by a repeat offender -- thus results such as Andrade, where the defendant was caught stuffing videotapes down his pants at two Kmart stores in 1995. Prosecutors could have charged him with a misdemeanor with a maximum six-month jail sentence, but instead charged him with three new felony counts. Under three-strikes, a Southern California judge sentenced Andrade to three consecutive 25-to-life sentences. He would be eligible for parole after completing the first two, in 2046.
California voters and legislators approved the three-strikes law in the wake of the sensational murder of Polly Klaas by a multiple offender out on parole. Riding and manipulating a wave of public fear and revulsion, demagogic politicians such as then Gov. Pete Wilson and then Attorney General Dan Lungren, supported by the overflowing coffers of the California Correctional Peace Officers Association, the prison guards' union, trumpeted the measure as a vital blow against violent crime. (See the DRCNet interview with author Sasha Abramsky at drcnet.org/wol/226.html#hardtimeblues for more details on the genesis of three-strikes). Other states and the federal government followed in step. Now, 40 states have enhanced sentences for repeat offenders and 26 states and the federal government have three-strikes provisions. But only California allows for 25-to-life for any felony conviction, even for nonviolent or minor crimes if following two prior convictions.
While the California three-strikes law was portrayed as being aimed at violent criminals, it has instead swept into its nets thousands of hapless, small-time, nonviolent repeat offenders. Of the 7,072 inmates serving 25-to-life under the three-strikes law, fewer than half committed a violent offense as the third strike. More drug possessors -- 644 of them, according to state officials -- are serving decades-long sentences under three-strikes than rapists and murderers. And the laws have swept up even more drug offenders, such as Andrade and Ewing, who committed petty crimes to support their habits. At least 340 people are serving 25-to-life for petty theft convictions.
Andrade's sentence was overturned by a divided three-judge panel of the 9th US Circuit Court of Appeals in San Francisco, which called his sentence "grossly disproportionate" and said judges must consider whether the punishment fits the crime, but limited the ruling's scope to Andrade, writing that its decision "did not invalidate California's three-strikes law generally." California Secretary of State Bill Jones, who helped write the law, appealed to the Supreme Court. Ewing, having lost his appeal, applied to the Supreme Court for redress.
In deciding the pair of three-strikes cases, the Supreme Court is positioning itself to either rule on the constitutionality of the California law or make a more general statement on what constitutes cruel and unusual punishment. Although the Rehnquist court has typically produced a solid conservative majority on criminal law cases and has refused previous attempts to challenge the three-strikes laws, in 1999 three of the justices made a point of questioning the way California authorities applied the law.
Attorneys for the prisoners made a straightforward case. "Serving 25 years to life for stealing golf clubs is cruel and unusual punishment," Ewing's lawyer wrote in his brief.
"I think it is outrageous that someone could be sentenced to 50 years in prison for shoplifting $150 worth of videotapes, said University of Southern California constitutional scholar Erwin Chemerinsky, who is representing Andrade.
California Attorney General Bill Lockyer, who is representing the state, played to fear and to pragmatism in defending the law. "Nothing in the Constitution requires society to wait for another person to be victimized by another serious or violent crime before isolating [a repeat offender] for a substantial period of time," he wrote in his petition for review of the Andrade decision. Besides, he complained, redressing the law would just be too darned much work. "Unless repudiated," Lockyer wrote, the Andrade "decision will open the floodgates of litigation on nearly all three-strikes sentences."
The Supreme Court will hear oral arguments during its fall session and is expected to rule on the cases in the spring of 2003. But some California legislators and activists are not waiting for the Supreme Court and a possible negative ruling. Assemblywoman Jackie Goldberg (D-Los Angeles) last month introduced a bill, AB 1790, that would mandate that strikes be given only for serious or violent crimes.
"Change is going to come," Goldberg told a crowd of supporters led by Families to Amend California's Three-Strikes Law (FACTS) after a march to support the bill wound its way through LA's Westwood neighborhood. "It's going to come either at the hands of the people or the courts, and it should come from the people because they may not like what the courts come up with," she said.
Visit FACTS at http://www.facts1.com online.
Visit the Citizens Against Violent Crime California ballot initiative campaign at http://www.Amend3Strikes.org online.