Justices Uphold Long Prison Terms in Repeat Crimes

from The New York Times

March 6, 2003


WASHINGTON, March 5 — A deeply divided Supreme Court upheld California’s “three-strikes” law today, rejecting constitutional challenges to sentences of 25 years without parole for a man who stole three golf clubs from a pro shop and 50 years without parole for another for stealing children’s videotapes from a Kmart store.

Both men had previous convictions for a string of mostly minor property offenses that qualified as prior strikes under California’s recidivist sentencing law, adopted by the state’s voters in a 1994 referendum. More than 7,000 people are now in California prisons serving sentences of at least 25 years under the law, including more than 300 whose “third strike” was a “petty theft.”

Neither of the challenged sentences was so grossly disproportionate as to violate the Eighth Amendment’s prohibition against cruel and unusual punishment, Justice Sandra Day O’Connor wrote today, adding that any criticism of the law “is appropriately directed at the Legislature.”

While the court divided 5 to 4 in both cases, Justice O’Connor spoke only for herself and for Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy on the constitutional analysis.

Justices Antonin Scalia and Clarence Thomas provided a fourth and fifth vote for the result while refusing to sign the O’Connor opinion because they reject the principle, established by the court’s precedents, that the Eighth Amendment requires any proportionality in sentencing. In their view, the amendment is addressed only to types of punishment, not length of sentences.

The four dissenters in both cases — Justices Stephen G. Breyer, David H. Souter, John Paul Stevens and Ruth Bader Ginsburg — objected that the court’s test for disproportionality, established in a series of admittedly inconsistent precedents beginning in 1980, had been met.

Referring to Leandro Andrade, whose theft of nine videotapes worth about $150 earned him a 50-year sentence, Justice Souter said: “If Andrade’s sentence is not grossly disproportionate, the principle has no meaning.”

Justice Breyer called the 25-year sentence for the golf club thief, Gary A. Ewing, “virtually unique in its harshness for his offense of conviction” and said that this was the “rare” case that satisfied the court’s test of gross disproportionality. He said that outside California, only one similar sentence had been brought to the court’s attention, a life sentence imposed in Nevada on a man with a prior armed robbery conviction who stole a purse containing $476.

That was one sentence “out of a prison population now approaching two million individuals,” Justice Breyer observed.

While many other states have versions of three-strikes laws, most require that the third offense be a violent or at least serious felony. Justice Breyer included an appendix to his dissenting opinion that analyzed how a defendant with Mr. Ewing’s record would fare under the various state laws. He could have received no more than 10 years in 33 states, and 12 to 18 months in the federal system.

While in nine states Mr. Ewing could theoretically have received 25 years or more, Justice Breyer said that most of those states offered an earlier possibility of parole.

The California law is also unusual in permitting third strikes that would ordinarily be misdemeanors to be counted as felonies. And in Mr. Andrade’s case, his theft of the videotapes, which occurred on separate occasions two weeks apart, was counted as two offenses, doubling his 25-year sentence to 50 years, even though both thefts had been charged in a single indictment.

While the dissenters spoke with considerable passion, Justice O’Connor’s tone was dry and her emphasis was on the need for the court to defer to judgments made by the states.

“Though three-strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding,” she said.

She noted that “California’s justification is no pretext” because crime statistics showed that recidivism was a serious problem.

The California voters approved the three-strikes law as Proposition 184 shortly after Polly Klaas, 12, was kidnapped from her home in Petaluma and murdered by a man with a long criminal history who had been released from prison after serving only half of his most recent sentence.

Noting recent criticism of the law, Justice O’Connor said that “to be sure, California’s three-strikes law has sparked controversy.” But it was the State Legislature that had responsibility for “making the difficult policy choices that underlie any criminal sentencing scheme,” she said, adding: “We do not sit as a `superlegislature’ to second-guess these policy choices.”

The two cases, Ewing v. California, No. 01-6978, and Lockyer v. Andrade, No. 01-1127, had significant procedural differences. The Ewing case reached the court on a direct appeal from the California Court of Appeal, which rejected Mr. Ewing’s constitutional challenge to his sentence. The Supreme Court’s decision today was a clear affirmance of that judgment.

The Andrade case, by contrast, came up through the federal courts in California as a petition for a writ of habeas corpus, after Mr. Andrade lost his appeals in the California state courts. The United States Court of Appeals for the Ninth Circuit, in San Francisco, granted Mr. Andrade’s petition, declaring his sentence unconstitutional.

Bill Lockyer, the California attorney general, then took the case to the Supreme Court. Among his other arguments, Mr. Lockyer maintained that the Ninth Circuit had exceeded its jurisdiction under the federal habeas corpus statute, under which a federal court may not overturn a state court conviction without finding the conviction “contrary to, or an unreasonable application of, clearly established federal law” as determined by the Supreme Court.

The majority today found that the Ninth Circuit had exceeded its jurisdiction because the Supreme Court’s decisions on disproportionate sentencing were so muddled that there was no clearly established federal law. “We have not established a clear or consistent path for courts to follow,” Justice O’Connor said. Consequently, she said, the state courts’ rejection of Mr. Andrade’s attack on his sentence could not be considered “objectively unreasonable.”

Although a less direct discussion of the issue, the Andrade decision is likely to prove the more important of the court’s two rulings because it is a significant and broadly applicable interpretation of the current habeas corpus statute, a 1996 law called the Antiterrorism and Effective Death Penalty Act that has caused wide confusion in the federal courts.

Coming after several restrictive habeas corpus decisions, the ruling today is likely to further limit federal judges’ discretion to set aside state sentences in circumstances where the Supreme Court has not directly addressed an almost identical issue.

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