Top Court Upholds ‘3 Strikes’

Justices allow 25-year-to-life terms for shoplifting

Bob Egelko, Chronicle Staff Writer
Thursday, March 6, 2003

A closely divided U.S. Supreme Court left California’s “three strikes” law on firm legal ground Tuesday, upholding sentences of up to life in prison for shoplifters and other small-time criminals with long records.

In a pair of 5-4 rulings, the court said the constitutional ban on cruel and unusual punishment is not violated by sentences at the outer limits of the 1994 law: 50 years to life for a shoplifter of $153.54 worth of videotapes, and 25 years to life for a man who stole three golf clubs.

Both men had extensive criminal records, including at least two serious or violent crimes — or “strikes” — that qualified them for life terms after a conviction for any new felony. The court said California is entitled to decide that such criminals can’t or won’t obey the law and should be separated from society.

“To be sure, (Gary) Ewing’s sentence is a long one,” wrote Justice Sandra Day O’Connor, referring to the golf club thief. “But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.”

Opponents of the law acknowledged that the court has virtually closed the door on future legal challenges. Supporters said the ruling should encourage other states to emulate California’s law, by far the toughest of the three- strikes measures adopted by the federal government and half the states in the early and mid-1990s.

The California law was passed by the Legislature, and later by the voters, largely in response to the kidnapping and murder of 12-year-old Polly Klaas of Petaluma by Richard Allen Davis, a repeat felon who was out on parole when he committed the crimes. He is now on Death Row.

The law makes life sentences mandatory for third strikes, with no parole possible for 25 years. The chief reason for its broad sweep is a unique rule counting any felony — a crime punishable by more than a year in prison — as a third strike.

Another unique California law, which dates from 1872, accounts for many of the three-strike cases regularly cited by opponents — prisoners serving life terms after stealing pizzas, bicycles, bottles of vitamins or videotapes, as in one of Wednesday’s cases.

The 131-year-old law converts petty theft, the shoplifting of less than $400 worth of goods, into a felony at the prosecutor’s request if the defendant has previously served time for a theft-related crime. Petty theft is normally a misdemeanor with a maximum term of six months in jail.

State prison records show that out of more than 7,600 inmates serving at least 25 years to life for third strikes, about half committed violent crimes as their third strike and 353 committed petty theft.

One was Leandro Andrade, arrested twice in San Bernardino County in November 1995 for stealing nine videos of children’s movies, including “Snow White” and “Cinderella.”

A heroin addict, he had seven previous convictions. None of the convictions were for violent crimes, but three were for residential burglaries that were classified as strikes. With that criminal history, he was given third-strike sentences of 25 years to life for each of the two video shoplifting convictions. He will not be eligible for parole until he is 87. He was 37 when he stole the videos.

Ewing, who has AIDS and is blind in one eye, was arrested in May 2000 while limping out of a pro shop in El Segundo (Los Angeles County) with three golf clubs worth $399 each stuffed down a pants leg.

He had nine previous convictions, including three burglaries and a robbery in which he brandished a knife. The grand theft conviction normally carried a maximum three-year sentence, but he was given a third-strike term of 25 to life. Thirty-eight years old at the time of the golf club theft, he won’t be eligible for parole until age 63.

In challenging their sentences, both men’s lawyers relied on Supreme Court rulings that have found prison terms to be cruel and unusual punishment when they are “grossly disproportionate” to the crime.

One 1983 ruling overturned South Dakota’s sentence of life without parole for a man who passed a $100 bad check and had six past convictions for nonviolent crimes. Citing that ruling, the U.S. Court of Appeals in San Francisco ruled Andrade’s sentence excessive in November 2001 and has since overturned two other three-strikes sentences.

But the Supreme Court majority, led by O’Connor, noted Wednesday that both Andrade and Ewing remain eligible for parole and said states have broad leeway to punish career criminals.

Leading the four dissenters in Ewing’s case, Justice Stephen Breyer said his sentence was longer than California imposes for many violent crimes and at least two to three times as long as the sentences other states would impose for Ewing’s crime and record. Justice David Souter struck a more indignant tone in his dissent in Andrade’s case, saying, “If Andrade’s sentence is not grossly disproportionate, the principle has no meaning.”

After the rulings, “it’s hard to imagine virtually any sentence being declared unconstitutional,” said Andrade’s lawyer, Erwin Chemerinsky, a University of Southern California law professor. “I don’t believe that the voters of California ever imagined that the law would be used to put shoplifters in prison for life.”

But former Secretary of State Bill Jones, who as a legislator authored the 1994 law, said it is working as intended and should be a model for other states.

“There is no reason to wait for another woman to be raped or another child to be molested before taking criminals with a history of serious and violent crime off the streets,” he said. “We are pleased the Supreme Court has upheld the law, and we encourage other states to follow California’s lead and adopt identical legislation as soon as possible.”

That’s not likely, said Franklin Zimring, a UC Berkeley law professor and author of a study critical of three strikes. He called such measures “a product of a different historical era” and noted that no state has passed one since the mid-1990s.

However, the law remains popular among residents and politicians. A bill to narrow the law by requiring that the third strike be a violent or serious crime, rather than any felony, cleared an Assembly committee last week but has little chance of becoming law in light of Gov. Gray Davis’ strong support for the current law.

“People who are guilty of three strikes are generally guilty of many more crimes, and it has led to a great increase in public safety over the past decade,” Davis told an interviewer on KNX Radio in Los Angeles after Wednesday’s rulings.

Opponents dispute the public safety claims, saying the crime rate has dropped just as fast in states without three strikes.

The cases are Ewing vs. California, No. 01-6978, and Lockyer vs. Andrade, No. 01-1127.


Out of more than 7,600 inmates serving at least 25 years to life for third- strike crimes, about half were sentenced for violent crimes, and 353 committed petty crimes. The following is a brief sampling of both categories:


Fred Cross

— Third strike: Murder of a rival drug dealer in Oakland in June.

— Previous strikes: Kidnapping and carjacking in the torture slaying of a 21-year-old man in 1995.

John Jeffrey Jones

— Third strike: Raping and beating a Marin County woman in 1994.

— Previous strikes: Assault with a deadly weapon convictions in 1977 and 1979.

Cleveland Scott

— Third strike: Second-degree murder for the 1995 shooting death of a man in San Mateo as the victim celebrated his 30th birthday.

— Previous strikes: Voluntary manslaughter in the 1985 killing of a ticket agent at the Burlingame train station and the killing of two men outside a Port Arthur, Texas, bar in 1972.


Gregory Taylor

— Third strike: Attempted burglary for trying to break into a Los Angeles church to steal food in 1997.

— Previous strikes: Two robberies.

Jerry Dewayne Williams

— Third strike: Petty theft for stealing a slice of pepperoni pizza in Redondo Beach in July 1994.

— Previous strikes: Robbery and attempted robbery.

Leandro Andrade

— Third strike: Theft of nine children’s videos in San Bernardino in 1995.

— Previous strikes: Residential burglaries.

Gary Ewing

— Third strike: Theft of three golf clubs from a Los Angeles County pro shop in 2000.

— Previous strikes: Nine previous convictions, including three burglaries and a robbery in which he brandished a knife.

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