Justices cool to challenge of 3 strikes law

The Washington Times

Frank J. Murray
published 11/6/2002

Lawyers for two California shoplifters serving “three-strikes” sentences likely to last for life got rough receptions yesterday when they argued to the Supreme Court their clients were disproportionately punished for minor offenses.

Justices’ hypothetical questions elicited assertions from state lawyers that it would be constitutional for California to change its law to impose a “third-strike” sentence even on violent felons who steal so much as a gumball, or pose threats by chronic speeding.

“To treat stealing $153 worth of videotapes more seriously than second-degree murder is grossly disproportional,” argued Erwin Chemerinsky, lawyer for Leandro Andrade, who got 50 years to life for shoplifting Kmart videotapes like “Snow White” and “Free Willie” years after his convictions for serious felonies.

“This is a man who has never committed a violent crime. At worst, he might try to steal ‘Snow White’ again,” said Mr. Chemerinsky, who called the mandatory punishment irrational.

“They were not punishing him, but incapacitating a person who posed a threat,” countered Justice Ruth Bader Ginsburg, who sounded supportive of California’s right to abandon penal theories of punishment and rehabilitation, and focus on locking up career criminals.

“Why can’t California simply decide that enough is enough?” Chief Justice William H. Rehnquist asked Quin Denvir, representing Gary Ewing, who got 25 years to life for stealing three Callaway golf clubs worth $1,197, years after convictions for robbery and burglary.

“This still remains shoplifting three golf clubs, even if he was a triple murderer in the past,” replied Mr. Denvir, a federal defender from Sacramento appointed to represent Ewing, 41. He was appealing a so-called “wobbler” conviction, a case where prosecutors could charge either a misdemeanor or felony.

“I’d be with you there if it was a misdemeanor,” said Justice Antonin Scalia.

Andrade, who isn’t eligible for parole until 2046 when he would be 87, was convicted of felony grand theft in the Kmart case, the third strike for a man twice convicted for burglarizing homes.

Currently 344 prisoners convicted of petty theft are serving 25 years to life for felony third-strikes committed after two serious or violent felonies, said Deputy Attorney General Douglas Danzig, who seeks to restore Andrade’s sentence.

Mr. Danzig disputed Andrade’s claims that he stole children’s tapes as Christmas presents, an assertion that Michael O’Neill, a George Mason University law professor who serves on the U.S. Sentencing Commission, likened to “stealing a loaf of bread to feed his family.”

But Mr. Danzig said that was not Andrade’s story in court.

“He told the probation officer that he stole them in order to sell them and buy heroin, not to give them to his children,” Mr. Danzig told the court as he argued to reverse the U.S. 9th Circuit Court of Appeals ruling that Andrade’s sentence was unconstitutional.

“What is ‘grossly disproportional?’” Mr. Danzig said, echoing the justices. “This court has not answered that.”

At times the justices seemed to be asking that question in various ways to make a point.

“If any sentence is disproportionate it is the one given to Leandro Andrade,” said Mr. Chemerinsky, a University of Southern California Law School professor who often is quoted on Supreme Court issues but was arguing his first case there.

His attacks on the 50-year-to-life sentence came after a full hour devoted largely to whether Ewing’s 25-to-life sentence was “grossly disproportionate” and therefore unconstitutional under the Eighth Amendment ban on cruel or unusual punishment.

Mr. Denvir told the justices that Ewing is blind in one eye and has AIDS, so his term equals a death sentence.

The stern sentencing law was enacted in 1994 after a furor over the murder of Polly Klaas, 12, by parolee Richard Davis, a repeat offender. Polly’s grandfather opposes applying the law to nonviolent criminals.

Figures provided by professor Jennifer Walsh of California State at Los Angeles, show most of the 7,100 three-strike prisoners committed serious crimes to trigger the sentence. They include 294 for murder, 34 for manslaughter, 1,408 robbers, 241 child molesters, 136 rapists, and 83 kidnappers.