A closely divided Supreme Court Wednesday upheld California's draconian three-strikes law, letting stand a 25-year sentence without parole for a man who stole golf clubs and a 50-year sentence without parole for a man convicting of stealing videotapes from a Kmart. In a 5-4 vote, the high court held that the sentences did not constitute "cruel and unusual punishment" or run afoul of its notion of "disproportionality."
Under the law, passed by voters in a 1994 referendum, persons with two previous felony convictions may be charged as recidivists and given lengthy prison sentences. According to the California Department of Corrections, as of last June 30, some 7,291 persons were serving three-strikes sentences. Of those cases, fewer than half involved crimes against persons as the third strike. Some 44% of three-strikes prisoners were sentenced for crimes against persons, 30% for property crimes, and almost 17% for drug crimes. In other words, more than 1,200 prisoners in California are doing decades-long sentences for drug offenses, including 34 people serving those sentences for marijuana convictions. Sentencing enhancements for recidivist offenders have spread across the country, but California's three-strikes law is among the harshest.
That didn't matter to the Supreme Court's majority. In an opinion written by Justice Sandra Day O'Connor, the court held that in neither of the two cases it heard were the sentences so grossly disproportionate as to conflict with the Eighth Amendment's proscription against cruel and unusual punishment. In a concurring opinion, Justices Antonin Scalia and Clarence Thomas went even further, rejecting the idea that the Eighth Amendment requires sentence length to be proportionate to the crime committed. The amendment's proscription of cruel and unusual punishment does not apply to length of sentence, they argued, only to types of punishment.
In her opinion, O'Connor also wrote that the court should be hesitant to overturn decisions made by the states. "Though three-strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding," she wrote. "California's three-strikes law has sparked controversy," she noted, but it was the legislature's place to make "the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a 'superlegislature' to second-guess these policy choices."
But four of the court's nine members were quite ready to second-guess decades-long sentences for minor crimes. In the case of Leandro Andrade, whose theft of nine videotapes worth $150 dollars netted him a 50-year sentence, Justice David Souter wrote: "If Andrade's sentence is not grossly disproportionate, the principle has no meaning."
And referring to the case of Gary Ewing, who got 25 years for stealing golf clubs, Justice Steven Breyer called his sentence "virtually unique in its harshness for his offense of conviction," adding that Ewing's was the "rare" case that met the test of gross disproportionality. Breyer noted that, outside California, the only similar case he knew of was a Nevada man with a prior armed robbery conviction sentenced to life for stealing a woman's purse. That was one sentence "out of a prison population now approaching two million individuals," he observed.
As part of his dissenting opinion, Breyer included an appendix analyzing how Ewing would have fared in other states. He would have received less than 10 years in at least 33 states, and 12 to 18 months in the federal system. Breyer added that most of those states offered an earlier possibility of parole. In nine states, Breyer conceded, Ewing could have received sentences of 25 years or more, but those states also had parole.
"This is really depressing," said attorney Kevin Zeese, director of Common Sense for Drug Policy (http://www.csdp.org). "It's like Les Miserables, throwing people in the dungeon for stealing bread. To say that it is not unusual or cruel to imprison someone for 25 or 50 years for these minor crimes, well, the words have then lost their common-sense meaning," he told DRCNet.
Depressing, but not surprising, said Zeese. "The Supreme Court has been weakening protections against cruel and unusual punishment for many years, and this is consistent with the security state in which we are now living. It's getting harder and harder to say that we live in the freest country on earth."
Neither, given the direction of the Rehnquist Supreme Court, did the decision surprise Families to Amend California's Three-Strikes (http://www.facts1.com), a statewide organization committed to amending the law. "We weren't surprised, but we couldn't help but be disappointed," said FACTS executive director Geri Silva. "This court has a strangely selective attitude toward states' rights," Silva told DRCNet. "After Californians voted to let seriously ill patients use marijuana, this court slapped us in the face by siding with federal drug agencies. But now, the court says that if California wants to imprison petty thieves for life, it can go right ahead. The court's priorities are deeply disturbing to many Californians."
That's right, said Zeese. "This court defers to the states, but only when it suits its needs. Just as the court has carved out the 'drug exception' to our constitutional protections against unlawful search and seizure, so it appears the court has created a 'drug exception' to its embrace of states' rights. This court could have created a federal medical necessity defense for Californians, but it chose not to. Where is the deferring to states' rights there?"
Still, said FACTS' Silva, a battle may have been lost, but the fight is not over. The group is raising funds and planning to bring a three-strikes reform initiative to the ballot in November 2004, she said. "It's clear today that the federal government will not come to our rescue. We must take this fight into our own hands here in California. This ruling reenergizes our campaign to bring three strikes reform to the ballot in 2004. A new ballot measure is our best hope for reform."
California voters didn't understand what they were getting into when they approved three-strikes nearly a decade ago, said Silva. "Almost 10 years ago, Californians were sold a bill of goods with the original three-strikes law. It is far broader than most voters understood it to be. Thousands of people who never committed an act of violence are now serving long prison terms under this unfair law. It is increasingly obvious that three-strikes is unjust and wasteful, and that will help us to change it at the ballot box."
According to recent polling down for FACTS, two-thirds of the California electorate supports reform of the three-strikes law. "We urge all Californians who are offended by today's decision to join this fight and help us put reform on the ballot next year."
An editorial in today's New York Times (Friday, 3/7), titled "Fairness Strikes Out," criticized the ruling. The editorial charged that "[s]uch wildly disproportionate sentencing clearly violates the Eighth Amendment's ban on cruel and unusual punishment," and intoned, "[t]hat the punishment must fit the crime is an elemental rule of justice and a core principle of the Constitution," lamenting, [with] its decision this week, the court turned its back on this principle, and on two men whose sentences are a clear miscarriage of justice."
Visit http://www.supremecourtus.gov/opinions/02pdf/01-1127.pdf to read the Supreme Court decision in Lockyer v. Andrade. Visit http://www.supremecourtus.gov/opinions/02pdf/01-6978.pdf to read the decision in California v. Ewing. Read the New York Times piece at http://www.nytimes.com/2003/03/07/opinion/07FRI2.html -- requires free registration.