California’s 3-Strikes Law Tested Again

from The New York Times

November 6, 2002

WASHINGTON, Nov. 5 — The shoplifting crimes that sent two California men to prison were not particularly shocking: $1,200 worth of golf clubs from a pro shop in one case, and children’s videotapes worth $153.54 in the other. In separate arguments before the Supreme Court today, the justices did not appear to find the life sentences the men received under California’s “three-strikes” law particularly shocking either.

Gary A. Ewing, who was caught moments after his theft with the three golf clubs hidden in his pants leg, “is precisely the kind of person you want to get off the streets,” Justice Antonin Scalia told Mr. Ewing’s lawyer, Quin Denvir, after surveying the defendant’s life of mostly petty crimes. “He’s going to do it again,” Justice Scalia added.

Chief Justice William H. Rehnquist challenged Mr. Denvir: “Why can’t California decide that enough is enough, that someone with a long string like that simply deserves to be put away?”

California’s law, adopted by referendum in 1994, is possibly the harshest in the country, permitting judges to treat as third felonies crimes that would ordinarily be considered misdemeanors. Most other states that impose extra-long sentences after a third offense require the third strike to be a violent or at least a serious crime. Leandro Andrade, the other man whose case was argued today, is one of 344 people in California serving life sentences whose third crime was petty theft, his lawyer, Erwin Chemerinsky, told the court.

Because Mr. Andrade stole videotapes from Kmart stores on two occasions, his third strike was counted as two offenses for sentencing purposes; he will be considered for parole in 50 years, compared with 25 years for Mr. Ewing and the others. “The punishment here is not just cruel and unusual, it is cruel and unique,” Mr. Chemerinsky told the court.

The Supreme Court’s precedents have established that a sentence can be so disproportionate to the offense as to violate the Eighth Amendment’s prohibition against cruel and unusual punishment. In 1983, for example, the court invalidated a life sentence for a man convicted of passing a bad $100 check, his seventh offense. But in 1991, the court upheld a life sentence for a first-time offender who was caught with a pound and a half of cocaine. Much of the debate today was centered on trying to define the current state of the law on the question of disproportionate sentences.

The underlying question in the two cases argued today, Ewing v. California, No. 01-6978, and Lockyer v. Andrade, No. 01-1127, was whether the life sentences meted out under the state’s three-strikes law violated the Eighth Amendment. Mr. Ewing’s case, an appeal from the California Court of Appeal, presented the question straightforwardly.

Mr. Denvir, the federal defender in Sacramento whom the justices appointed to argue the case, said that while the three-strikes law “could result in a constitutional sentence, it did not in this case.” Mr. Ewing’s prior felonies, a burglary and a robbery, could be the basis for a “reasonable enhancement” to what would ordinarily be at most a four-year sentence for stealing the golf clubs, he said. But he added that the focus had to remain on the current crime.

“This still remains shoplifting three golf clubs,” Mr. Denvir said. “That’s the crime he’s being punished for.” To impose added punishment for past crimes would raise a question of double jeopardy, he said.

Justice David H. Souter asked whether Mr. Ewing’s sentence would be justified if he had stolen golf clubs 100 times in the past, a question that provided a bit of unanticipated comic relief.

“Your honor, that would show a propensity for stealing golf clubs,” Mr. Denvir replied.

“I concede that,” Justice Souter said.

Justice Scalia added: “I would posit further that his score has not improved.”

The law was defended during the Ewing argument by Donald E. DeNicola, a deputy attorney general from California, and Michael Chertoff, the assistant attorney general in charge of the criminal division at the Department of Justice. Mr. DeNicola said the three-strikes law reflected California’s choice to move from a theory of punishment in which the goal was rehabilitating offenders to one in which the chief goal was their “incapacitation.” He said this policy shift was reasonable and that the court should not “second-guess” it.

The argument in Mr. Andrade’s case was procedurally more complex. Having lost his direct appeals in the California state courts, Mr. Andrade won a petition for a writ of habeas corpus in the United States Court of Appeals for the Ninth Circuit, in San Francisco, which found his sentence to violate the Eighth Amendment. A 1996 federal law sharply limited the federal courts’ discretion in granting habeas corpus to state prisoners, and California’s appeal to the Supreme Court argued that the Ninth Circuit had exceeded its authority.

Under the 1996 law, the Antiterrorism and Effective Death Penalty Act, a federal court can overturn only those state court judgments that are “contrary to” or an “unreasonable application of clearly established federal law.” Because the law on disproportionate sentences was not clearly established, the Ninth Circuit’s grant of habeas corpus did not meet that test, Douglas P. Danzig, a California deputy attorney general, told the court.

Turning to the merits of the case, Mr. Danzig described Mr. Andrade as “a hopeless heroin addict” and said, “There comes a point at which the state has the right to say, `Enough is enough.’ “

Mr. Chemerinsky, a law professor at the University of Southern California representing Mr. Andrade, said that Supreme Court’s cases going back nearly 100 years had established that “grossly disproportionate punishments violate the Eighth Amendment.” He said that with a misdemeanor as his third strike, Mr. Andrade received a longer sentence than California ordinarily imposes for rape or second-degree murder. “There is no limiting principle” to the state’s position, he said.

Among the justices, Justice Stephen G. Breyer appeared most troubled by the law but uncertain that he had a theoretical basis for ruling against the state. Musing aloud, Justice Breyer said several times that “there must be some way of showing when the state has gone too far,” adding at one point, “The problem I’m struggling with is whether there’s an objective standard.”