Three Strikes and You’re In

The Ninth Circuit loses again. This time because the Supreme Court says ‘arguably unfair’ is not a synonym for ‘unconstitutional’

By George F. Will

March 17 issue — If being dumb were a crime, Gary Ewing and Leandro Andrade would be Al Capone and Don Corleone. And if “possibly misguided” or “arguably unfair” were synonyms for “unconstitutional,” perhaps the Supreme Court should have struck down the sentences imposed on Ewing and Andrade under California’s “three strikes” law.

BUT THEY ARE not synonyms. So the Supreme Court last week rightly refused, in two 5-4 rulings, to prevent California from punishing Ewing and Andrade with the “three strikes and you’re out” law passed in 1994, under which someone convicted for any felony after two previous convictions for “serious” or “violent” felonies can be incarcerated for a long spell.

Someone like Ewing, who in 2000 was on parole from a nine-year prison term when he tried to walk out of the pro shop at a Los Angeles country club with three $399 golf clubs concealed in his pants leg. Or someone like Andrade, a heroin addict stealing to support his habit, who in 1995 was stopped by security personnel at a California Kmart as he tried to steal five videotapes worth $84.70, and who 14 days later was stopped by security personnel as he tried to walk out of another Kmart with four videotapes worth $68.84 tucked in the waistband of his pants.

Ewing has been convicted of battery, thefts, burglaries, and drug-related offenses in a series of crimes running back to 1984, when he was 22. Andrade, too, had a series of convictions, including some for residential burglaries, which count as “serious” felonies under the three-strikes law. Ewing’s golf-club theft earned him a sentence of 25 years to life. Andrade’s two videotape thefts earned him 50 years without possibility of parole.

Twenty-six states have some version of such a law. California acquired its nearly a decade ago. In 1993 the California Legislature considered a three-strikes bill, intended to deter or incapacitate repeat offenders by mandating “an indeterminate term of life imprisonment” for recidivists. When that bill was defeated, public anger fueled a drive to get such a law on the November 1994 ballot.

While petitions to achieve that were circulating, 12-year-old Polly Klaas was kidnapped and murdered by a man with a long criminal record that included two kidnapping convictions. Had he served his full 16-year sentence, rather than just half of it, for his most recent conviction (for kidnapping, assault and burglary), Polly would be alive. The three-strikes proposal qualified for the ballot faster than any initiative in California history. It won a 72 percent majority.

Under it, prosecutors can choose to treat a recidivist’s misdemeanor as a “third strike.” More than 7,000 persons are serving long three-strikes sentences in California. The third offenses committed by 344 of those inmates were petty thefts.

This is a story of discretion, and the restriction of it. The criminal-justice system is lubricated by prosecutorial discretion: without plea bargains, the system would collapse. But the three-strikes law, a product of understandable public fury about irresponsibly—in the Polly Klaas case, lethally—lenient sentencing, limits discretion in sentencing.

Whether three-strikes laws go too far in removing mind—case-by-case judgment—from certain criminal-justice cases is a matter of opinion about social policy. Which is why the Ewing and Andrade cases illuminate today’s fierce arguments about proper judging.

Ewing and Andrade said their sentences are unconstitutional because of the Eighth Amendment’s proscription of “cruel and unusual punishments.” The four most liberal Supreme Court justices—Breyer, Ginsburg, Stevens and Souter—agreed.

They argued that there can be such “gross” disproportionality between the pettiness of a crime and the severity of a sentence that the sentence is “cruel and unusual.” But this is inherently standardless, more a visceral reaction than a judicial judgment. Furthermore, they focused on the “triggering” crime, not on the preceding pattern of crimes. Given the fact of federalism, and the federalist ethic of broad respect for states’ differing policy choices, it is difficult to see the pertinence of the dissenters’ data showing that most other states would impose lesser punishments on criminals similar to Ewing and Andrade who commit similar crimes.

The five more conservative justices—Kennedy, O’Connor, Rehnquist, Scalia, Thomas—opted for a modest judicial role. O’Connor, a former Arizona state legislator who wrote the opinions in both cases, said California law reflects “a rational legislative judgment, entitled to deference.” And: “We do not sit as a ‘superlegislature’

By the way, in affirming the constitutionality of the Andrade sentence, the Supreme Court overruled the hyperliberal and frequently reversed Ninth Circuit. Yes, that is that merry band of jurisprudential improvisers who recently discovered that the words “under God” in the Pledge of Allegiance constitute an unconstitutional “establishment of religion.” That discovery also will be (and was) reversed.

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