Divided court upholds state’s 3-strikes law

San Diego Union-Tribune

By Dana Wilkie

March 6, 2003

WASHINGTON – A divided Supreme Court yesterday upheld California’s “three-strikes” law, rejecting constitutional challenges of lengthy sentences for two repeat criminals whose final strikes were minor crimes.

The court’s dual 5-4 decisions are likely to shield similar laws in two dozen other states and to inject California’s criminal-justice system with new confidence about the law that won overwhelming support from state lawmakers and voters nine years ago.

“When the California Legislature enacted the three-strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime,” Justice Sandra Day O’Connor wrote in an opinion backed by Chief Justice William Rehnquist and Justice Anthony Kennedy.

Justices Antonin Scalia and Clarence Thomas voted with them, but offered different reasons.

In a dissenting opinion, Justice David Souter said the Eighth Amendment banning cruel and unusual punishment “has no meaning” if criminals such as the two who appealed to the high court must serve the lengthy sentences imposed by California courts. The third strike for one was stealing golf clubs; the other stole videos.

Souter was joined by Justices Stephen Breyer, John Paul Stevens and Ruth Bader Ginsburg.

Today, 7,626 men and women are serving prison terms in California for their third strikes, according to the California Department of Corrections. For most, the third strike that landed them in jail involved robbery, first-degree burglary or drug possession. The final strike for about 300 criminals was petty theft.

California legislators enacted the law in 1994 – and voters overwhelmingly approved it later that year – after a repeat felon on parole abducted 12-year-old Polly Klaas of Petaluma from a slumber party and murdered her.

The law requires a prison term of 25 years to life for anyone convicted of a third felony after two previous convictions for serious or violent felonies. It calls for anyone convicted of a second serious or violent felony to receive twice the standard sentence for the second conviction.

More than 35,077 people are serving terms for their second strike.

In San Diego, 639 men and women have been sentenced for third strikes. An additional 3,722 were sentenced for second strikes.

Serious felonies that could trigger a third strike under California’s law include arson, robbery, assault with a deadly weapon and residential burglary. Violent felonies include murder and rape.

Gov. Gray Davis, who opposed the three-strikes law now in effect and supported a weaker version proposed by the California District Attorneys Association in 1994, said he was happy with yesterday’s ruling.

“People who are guilty of three strikes are generally guilty of many more crimes,” he said. “(The law) has led to a great increase in public safety over the past decade.”

Defense attorneys and civil-rights groups were dismayed that the court affirmed California’s right to lock up two men whose last crimes would otherwise be viewed as minor offenses.

“At the time this law passed, all of the political debate surrounded cases like that of Polly Klaas,” said Marc Mauer, assistant director of The Sentencing Project, a group trying to reduce the prison population. “None of the proponents ever said, ‘We need this law because we need to lock up videotape thieves for 50 years.’”

Although there is extensive case law in California upholding the three-strikes law, the cases of Leandro Andrade and Gary Albert Ewing were the first to reach the Supreme Court.

Of the two, Ewing’s was the case that best demonstrated the court’s thinking on whether punishments allowed under California’s law could be too harsh for the crime.

Ewing, a drug addict, walked into an El Segundo golf shop in March 2000 and limped out with three golf clubs – totaling $1,200 – stuffed down a leg of his pants. Ewing, a Los Angeles native who is now 40, had 10 convictions, including four for robbery. Ewing was sentenced to 25 years to life, and in July 2001 the California Supreme Court refused to hear his appeal.

Ewing’s attorneys argued that the sentence violated the constitutional ban against double jeopardy – punishing a person twice for the same crime. But the court paid close attention to the theory behind the California law: that people who continue to commit violent or serious crimes need to be deterred.

“The justices in the majority agreed that . . . as a constitutional matter, the courts must accept the judgment of the California Legislature,” said Donald DeNicola, the deputy state attorney general who argued against Ewing. “The opinion is a strong endorsement of the California system.”

The dissent among the court’s nine justices was sharp. Breyer read part of his dissent from the bench, a move typically reserved for when there is strong disagreement.

“Ewing’s sentence is, at a minimum, two to three times the length of sentences that other jurisdictions would impose in similar circumstances,” Breyer wrote.

David Porter, an assistant federal defender who helped represent Ewing, said “no one since World War II has had to spend more than 10 years in prison for doing what Gary did.”

In her ruling, O’Connor said any criticism of the law should be “directed at the legislature,” adding that the justices “do not sit as a ‘super-legislature’ to second-guess these policy choices.”

Andrade’s case tested the relationship between state and federal courts more than testing the constitutionality of Andrade’s sentence.

In November 1995, Andrade was arrested while attempting to walk out of an Ontario Kmart with $84.70 worth of videos stuffed in his pants. Two weeks later, he tried to walk out of a Montclair Kmart with videos worth $68.84.

Andrade, who is now 44, had served three prison terms for crimes that included residential burglary. A state court sentenced him to 50 years to life in prison. In November, a divided U.S. 9th Circuit Court of Appeals overturned the sentence on the grounds it was cruel and unusual. The Supreme Court reversed that ruling.

Douglas Danzig, a deputy state attorney general from San Diego who argued against Andrade, said the justices decided that the federal appeals court improperly intervened in a state court decision that “was neither contrary to U.S. Supreme Court precedent, nor an unreasonable application of Supreme Court precedent.”

In Andrade’s and Ewing’s cases, prosecutors pursued the thefts as felonies rather than misdemeanors, putting each case in the three-strikes arena. A key question before the court was whether the law should allow prosecutors and judges to upgrade misdemeanors to felonies so the crimes can qualify as “strikes” under California’s law.

Even in cases that involve relatively minor crimes, the court ruled, a defendant’s persistent record of felonies can be cause enough to impose the types of sentences handed down in California.

Other states have passed laws similar to California’s, although most require lengthy sentences after a third conviction only for violent felonies, not those classified as serious.

The two cases are Ewing v. California, No. 01-6978, and Lockyer v. Andrade, No. 01-1127.

Copyright 2003 Union-Tribune Publishing Co.

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