Jurists Take Up ‘Three Strikes’

By Michael Doyle
Bee Washington Bureau

WASHINGTON — The Supreme Court on Monday agreed to consider several challenges to California’s politically popular but legally controversial “Three Strikes and You’re Out” criminal-sentencing law.

In combined cases involving several small-time crooks, the court agreed to weigh whether certain long-term sentences might violate the Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.

Both cases to be taken up in the court’s term beginning in October illustrate what some consider the Draconian reach of the Three Strikes law. In one, a heroin addict named Leandro Andrade was sentenced to at least 50 years in prison for stealing $153.54 worth of videotapes. In the other, a repeat offender named Gary Albert Ewing received 25 years in prison for stealing three golf clubs worth $1,197 from El Segundo Golf Club.

“We’re not asking the court to strike down Three Strikes,” Southern California attorney Paul Hoffman said Monday, “but a victory would be for the court to find that the Eighth Amendment prevents someone from being given this kind of disproportionate sentence.”

The California cases mark the first time the Supreme Court has taken on any of the Three Strikes laws adopted by 26 states.

The cases also mark a remarkable legal journey for Andrade and Ewing, both of whom began by representing themselves with only a prison library to fall back upon.

Though they differ in severity and detail, the laws that flourished during the mid-1990s generally mirror what California adopted through both legislation and a ballot measure.

Championed by victim advocates such as Fresno wedding photographer Mike Reynolds, whose daughter was murdered by a repeat felon, California’s Three Strikes ballot measure was approved by a 3-to-1 margin in 1994. Anyone convicted of a felony after two prior strikes — that is, convictions on charges considered serious — must serve at least 25 years before becoming eligible for parole.

“Surely the California legislature is entitled to conclude that a person who demonstrates a willingness to commit serious or violent felonies on more than one occasion … poses a significant risk to society,” California Attorney General Bill Lockyer wrote in his brief.

California Secretary of State Bill Jones, who wrote the law while serving as a Fresno-area Assembly member, added in a statement Monday that the Supreme Court review could help sustain a useful crime-fighting tool.

“Since the passage of Three Strikes, we no longer have to wait for a third woman to be raped or a third child to be molested or killed before removing known repeat predators from our communities,” Jones said.

About 7,000 inmates are being held in California prisons under Three Strikes sentencing. Only some, however, might be covered by the court’s eventual ruling. That’s because the challenges involve not harsh sentences in general, but harsh sentences in particular for crimes that by themselves appear minor.

For instance, about 340 of these prisoners are doing at least 25 years for petty theft. Among them is Andrade, who in November 1995 was caught at two Southern California Kmarts with a total of nine videotapes stuffed into his pants. He’d previously served time on marijuana and burglary charges.

Normally, theft of the videotapes would have been a misdemeanor punishable by six months in county jail. But because of Andrade’s prior convictions, this misdemeanor was bumped up to a felony; then, conviction on the two felony counts subjected him to a total of 50 years in prison.

Andrade will be eligible for parole when he is 87 years old.

“Andrade’s sentence was grossly disproportionate to his crimes and therefore proscribed by the Eighth Amendment,” the San Francisco-based 9th U.S. Circuit Court of Appeals noted in overturning his sentence.

“His sentence is significantly greater than the sentences under California law for most violent crimes.”

Several justices, including Chief Justice William Rehnquist and Justice Antonin Scalia, have already made clear in prior cases that they don’t think the Eighth Amendment requires a proportional relationship between the crime committed and the sentence imposed.

But Justice Anthony Kennedy, writing in a 1991 case, wrote for other justices that while “the Eighth Amendment does not require strict proportionality between crime and sentence,” it does ban “extreme sentences that are grossly disproportionate to the crime.”

Four other justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — previously noted in another California case involving petty theft that the Three Strikes sentences could raise serious constitutional issues.

With the court so evidently divided, the California cases like many others before them could come down to the leanings of the relatively centrist duo of Kennedy and Justice Sandra Day O’Connor.