Justices Signal Support for 3-Strikes Law

Based on questions, a challenge to California repeat-offender statute faces long odds in the U.S. Supreme Court.

By David G. Savage
Los Angeles Times Staff Writer
November 6 2002

WASHINGTON — California’s three-strikes law, the nation’s harshest measure for repeat criminal offenders, came under challenge at the Supreme Court on Tuesday — but it appeared to have more defenders than critics among the justices.

At issue is whether the state can send petty thieves to prison for life or whether such an extreme penalty for a minor crime amounts to cruel and unusual punishment, which is banned by the 8th Amendment.

Eight years ago, California voters approved the three-strikes law in reaction to the murder of 12-year-old Polly Klaas by Richard Allen Davis, a twice-convicted kidnapper who was free on parole.

The ballot measure said those who commit three “serious” or “violent” felonies will be kept behind bars. In practice, however, the law allows prosecutors to win life terms for repeat criminals whose third offense is neither violent nor serious.

The high court debated two such cases Tuesday.

On Nov. 4, 1995, Leondro Andrade — an Army veteran, father of three and heroin addict — went to a Kmart store in Ontario and stuffed five children’s videotapes in his pants.

He was caught in the parking lot and charged with shoplifting. Two weeks later, he committed nearly the same offense at a different Kmart and was apprehended just as quickly.

At his sentencing hearing, San Bernardino County prosecutors noted that he had been convicted of three home burglaries a decade earlier. He also had drug possession charges on his record. Invoking the three-strikes law, the judge sent Andrade to prison for 50 years. He will be eligible for parole when he turns 87.

Two years ago, Gary Ewing, another repeat offender, walked out of the pro shop at an El Segundo golf course with three Callaway clubs tucked into his pants leg.

Not surprisingly, he was spotted in the parking lot, arrested, charged with grand theft and, under the three-strikes law, given a 25 years-to-life sentence.

Last year, the U.S. 9th Circuit Court of Appeals said a life prison term for a petty theft was unconstitutional; but most of the Supreme Court justices signaled Tuesday that they did not share that view.

“Why can’t California decide, ‘Enough is enough,’ that someone with a long history of crimes deserves to be put away?” said Chief Justice William H. Rehnquist, echoing the state’s argument.

In their brief, California prosecutors maintained that “6% of the criminal population commits 60% to 70% of all crime.” More than 7,000 criminals have been sent to prison for life under the three-strikes law. Of these, 344 were sent away for a petty theft, and they were the focus of Tuesday’s debate.

California Deputy Atty. Gen. Donald DeNicola said the state is reducing crime by locking up those who are crime-prone. “The state is moving away from rehabilitation and moving toward a tougher policy of incapacitation,” he said. “And the judiciary ought to defer to the states.”

But the two defense lawyers argued that the court should focus on whether the punishment fits the crime.

“We think this is a grossly disproportionate punishment, a life sentence for stealing three golf clubs,” said Quin Denvir, a public defender in Sacramento who represented Ewing.

In the past, the court has said the Constitution forbids punishments that are grossly disproportionate to the crime. But Rehnquist and Scalia, among others, dissented in those cases, and it is not clear that the current majority adheres to the earlier view.

“There has to be some limit,” Denvir said. Jaywalking cannot be the basis for sending someone to prison for life, he said.

“Jaywalking doesn’t hurt other people,” interjected Justice David H. Souter, unlike burglaries and shoplifting.

Souter said Ewing had nine convictions on his record before stealing the golf clubs. The 25-year term may seem unreasonable for the single theft, but not so if the entire record is taken into account.

USC law professor Erwin Chemerinsky, who represented Andrade, stressed that his client had no record of violence.

California calls for up to eight years in prison for a rape and up to 11 years for manslaughter, he said. Yet Andrade received 50 years for stealing the videotapes because he had the burglaries on his record.

“This is that rare case” that deserves to be reversed as unconstitutional, he said. “If there is any punishment that is cruel and unusual, this is it. It is cruel and unique.”

But he ran into trouble with Justices Ruth Bader Ginsburg and Souter, two of the court’s more liberal members.

They pointed to the 1996 law that made it harder for federal judges to reverse state convictions. Unless the state has violated “clearly established” federal law, judges should not intervene, the law says.

And Ginsburg said the Supreme Court’s past rulings have not set a clear rule. “There are lots of grand pronouncements [in past decisions], but most of them end up rejecting the claims,” she said.

Ginsburg said California’s state judges cannot be faulted for upholding Andrade’s 50-year prison term, since the constitutional rule in this area is not clearly established.

Only Justices John Paul Stevens and Stephen G. Breyer disagreed.

Breyer said that a life term is usually reserved for the most serious crimes, such as murder or an airplane hijacking.

“This is higher by a factor of two or three times” than the usual maximum for thefts, he said. “There must be a way of saying when the state has gone too far.”

Stevens wondered whether the state could impose a life prison term on someone who had several speeding tickets.

Yes, possibly so, DeNicola replied.

Does it matter that Andrade was not charged with a violent offense, Stevens asked.

No, said Douglas Danzig, a California deputy attorney. But Andrade had been convicted of home burglaries, and “there is a potential for danger and violence whenever someone breaks into a home,” he said.

The justices will vote behind closed doors this week and then begin work on opinions. Rulings in the two cases can be expected in several months.