Court Tosses ‘Third Strike’

A federal court finds a California sentence unconstitutional

By Claire Cooper – Bee Legal Affairs Writer
Published November 3, 2001

SAN FRANCISCO — Tossing a repeat offender’s shoplifting sentence of 50 years to life, a federal appeals court ruled for the first time Friday that a “three strikes and you’re out” penalty was unconstitutional.

The decision was limited to a single case but could be used to tear a sizable hole in the “three- strikes” sentencing scheme that was adopted first by the California Legislature and then by the state’s voters in 1994.

Because Leandro Andrade’s sentence was “grossly disproportionate” to his crimes — shoplifting nine videotapes worth $153.54 from two San Bernardino convenience stores in 1995 — the state must either resentence or release him, said the 9th U.S. Circuit Court of Appeals.

The court’s 2-1 opinion was based on the U.S. Constitution’s Eighth Amendment prohibition of “cruel and unusual punishment.” The opinion took into consideration that Andrade’s first two strikes were for nonviolent burglaries 12 years earlier.

Of the almost 7,000 “three-strike” offenders in California prisons at the end of May, 333 were convicted of petty theft, almost three times as many as those convicted of first-degree murder, according to the latest state Department of Corrections records. Robbers formed the largest category.

No information on the nature of prior strikes was available, however.

Erwin Chemerinsky, a University of Southern California law professor who argued Andrade’s appeal in the 9th Circuit, noted that the court was careful to limit its ruling to the circumstances.

But Secretary of State Bill Jones, who sponsored the “three-strikes” law when he was a legislator, called the decision a “get-out-of-jail-free card” that could reverse recent declines in the state’s crime rates.

When the law was adopted by the Legislature in March 1994, crime was the state’s leading political issue. Since adoption of “three strikes,” said Jones, the 41 percent drop in California’s crime rate has been more than double the rate of decline in the rest of the nation.

The ballot initiative — Proposition 184 — was approved by 71 percent of the state’s voters in the November 1994 general election.

A spokeswoman for the state attorney general’s office said the 9th Circuit probably will be asked to reconsider the case.

She said the federal court had no authority to take up Andrade’s appeal because the state did not violate a “clearly established U.S. Supreme Court precedent” in sentencing him.

In 1999, however, four Supreme Court justices — enough to place a case on the high court’s docket — signaled that they were troubled by a “unique quirk” in the California law.

The law permits shoplifting, a misdemeanor, to be boosted twice — to a felony and then to a “three-strikes” felony — if the shoplifter was convicted of theft previously.

As a misdemeanor, shoplifting is punishable by up to a year in county jail. But as a felony and third strike, it brings down a mandatory 25 years to life for each count. Sentences on multiple counts must be served consecutively.

In the 1999 case, the four justices — Stephen Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsburg — said at the time they would weigh in after lower courts had considered the constitutionality of severe sentences in such cases.

Commenting on the 9th Circuit decision, Alex Ricciardulli, a defense expert on the “three- strikes” law, said, “I think there is a high probability that the U.S. Supreme Court will get involved.”

Earlier this year the justices passed up one opportunity, though, with only Breyer and Souter voting to consider the case of a man who received a “three-strikes” sentence for stealing an umbrella and two bottles of liquor. The state Court of Appeal had upheld his sentence.

The 9th Circuit’s majority opinion in Andrade’s case, written by Judge Richard Paez of Pasadena, was based on a 1991 Supreme Court opinion saying the Eighth Amendment’s prohibition of “cruel and unusual punishment” barred sentences that are “grossly disproportionate” to the crime.

With a 50-year sentence, Andrade, 37, “will likely spend the remainder of his life in prison for shoplifting nine videotapes,” Paez wrote.

The opinion also said Andrade’s sentence was disproportionate to other sentences imposed in California except for “a select few violent crimes” and to sentences imposed for similar crimes in all other states except maybe Louisiana.

While acknowledging Andrade’s long record — a total of five felonies and two misdemeanors — the court said none of the offenses was violent.

Chief 9th Circuit Judge Mary Schroeder of Phoenix signed Paez’s opinion.

Senior Circuit Judge Joseph Sneed of San Francisco dissented, saying federal court deference “should be at its apex” when both the Legislature and the voters adopt a sentencing policy.

“We have before us the clearest indication possible that severe, mandatory sentences for recidivist offenders is the expressed penal philosophy of the citizens of California,” he wrote. “The initiative process permits the electorate to speak for itself, and its voice should be heard, not ignored.”