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3-Strikes Sentence Is Ruled Cruel

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TIMES LEGAL AFFAIRS WRITER

A federal appeals court struck down a sentence imposed under California’s three-strikes law for the first time Friday, ruling that a 50-year prison term for petty theft constituted cruel and unusual punishment.

The ruling opens the door to hundreds of similar challenges to the tough sentencing law enacted in 1994.

In its 2-1 decision, the U.S. 9th Circuit Court of Appeals said the 50-year sentence, with no possibility of parole, imposed on Leandro Andrade for stealing videos worth $153.54 from two Kmarts in San Bernardino County was grossly disproportionate to the offense. Therefore, the court ruled, the sentence violated the 8th Amendment to the U.S. Constitution.

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Generally, California law treats petty theft offenses as misdemeanors, punishable by up to six months in county jail and up to a $1,000 fine. Because Andrade had been convicted of several prior offenses--all nonviolent--the two thefts were enhanced to felonies under the state penal code. They were then enhanced again under the three-strikes law, which mandates that an offender convicted of two serious or violent felonies faces a 25-years-to-life sentence if convicted of a third felony of any kind.

The majority decision, written by Judge Richard A. Paez, emphasized that the 9th Circuit, based in San Francisco, was not overturning the law. “Rather, we conclude that it is unconstitutional only as applied to Andrade because it imposes a sentence grossly disproportionate to his crimes,” Paez said.

Nonetheless, several legal experts said Friday’s decision, if upheld, is likely to have a broad impact because of the number of state prison inmates in similar circumstances.

According to Andrade’s lawyer, there were 350 people doing 25-to-life in California on third strike petty theft convictions as of May, when Andrade’s case was argued.

Moreover, a state appeals court in Orange County recently upheld a 25-years-to-life sentence imposed on a man whose third strike offense was stealing four cookies after breaking into a restaurant.

“Until now, people thought the sentences under the three-strikes law were unassailable,” said Loyola Law School professor Laurie Levenson.

Friday’s decision means “there is hope for people who get horrendous sentences for fairly minor crimes,” Levenson said.

State Deciding Whether to Appeal

Donald Danzig, the deputy state attorney general who argued that the sentence should be upheld, said he was disappointed by the ruling but declined to elaborate. He said the state would take a few days to decide whether to ask for a rehearing before a larger panel of 9th Circuit judges.

San Bernardino County Deputy Dist. Atty. Grover Merritt said his office would urge the attorney general to seek a rehearing from the larger panel.

California Secretary of State Bill Jones, who authored the three-strikes law in 1994 when he was a Republican state assemblyman from Fresno, urged the California attorney general’s office to pursue its other option--"to initiate a rapid and aggressive appeal to the U.S. Supreme Court” to overturn Friday’s decision.

“If this decision is not overturned, we risk returning to the revolving door prison prison system that caused California’s crime rate to go through the roof in the late 1980s and early 1990s,” Jones said.

The ruling was hailed by Andrade’s appellate counsel, USC constitutional law professor Erwin Chemerinsky, who represented Andrade before the 9th Circuit.

“I can’t believe that the people of California wanted to impose a sentence this harsh for this kind of offense,” Chemerinsky said.

Los Angeles County Public Defender Michael Judge also praised the opinion, saying it was “occasioned by the fact that some local prosecutors and judges have grotesquely perverted the intent of the voters who thought the three-strikes law would be focused on dangerous offenders rather than on minor offenders.”

The state law, enacted in the aftermath of several highly publicized violent killings by repeat offenders, has had a dramatic impact on the state’s criminal justice system.

By May 2001, more than 6,700 individuals had received 25-years-to-life terms, while 43,000 more had been handed significantly enhanced sentences for second strike offenses.

Although more than two dozen states enacted three-strikes-style repeat offender statutes since 1993, none of them has utilized their statute even remotely as often as California.

The law has been controversial since its passage, with even some of the original proponents saying it was being used improperly to impose draconian sentences on individuals for minor crimes.

In one highly publicized case, a man was sentenced to 25 years to life for stealing pizza in Redondo Beach. A judge later reduced the term to six years.

Judges have had some leeway in sentencing since a California Supreme Court ruling in 1996 granted them power to overlook prior convictions. Judges also have the option of rejecting earlier offenses prosecutors seek to use as first and second strikes.

Support for the law remains solid in the state Legislature. Earlier this year, Assemblywoman Jackie Goldberg (D-Los Angeles) introduced a bill that would have required the third strike to be a violent or otherwise “very serious” felony. “I was unable to get that bill out of the Assembly Judiciary Committee,” she said Friday.

Goldberg said she then amended the bill to make it a condition that the third strike offense could not be a simple drug possession conviction. That measure made it out of committee but failed to pass the Assembly. “No one wants to be accused of being soft on crime,”

Goldberg said. “But the punishment should fit the crime.”

The case that led to Friday’s ruling started on Nov. 4, 1995, when Andrade was caught leaving a Kmart in Ontario with five videotapes worth $84.70 stuffed in his pants. Two weeks later, Andrade was caught shoplifting four more videos, worth $68.84, from another Kmart in Montclair.

Subsequently, the San Bernardino County district attorney’s office charged Andrade under the three-strikes law. Andrade, then 37, is a longtime heroin addict with a history of convictions for nonviolent offenses, including petty theft, burglary and parole violation. All told, according to Friday’s decision, he had been convicted of five felonies and two misdemeanors before the video thefts.

Andrade was convicted of the two thefts--both charged under the three-strikes law with possible terms of 25 years to life. Under the state’s repeat-offender statute, the trial judge, Joan Borba of Rancho Cucamonga, was required to impose the terms consecutively, meaning that Andrade would be required to serve 50 years--with no possibility of parole. That meant he would be 87 when he was eligible for release.

Sentence Equated to a Life Term

In the opinion Friday, Judge Paez noted that a 37-year-old man had a life expectancy of another 40 years. That meant that Andrade was likely to die in prison and that the sentence was the equivalent of a life term.

“Andrade’s indeterminate sentence of 50 years to life is exceeded in California only by first-degree murder and a select few violent crimes,” Paez wrote in explaining why he thought the sentence was “grossly disproportionate” to the offense.

Paez, whose opinion was joined by Mary M. Schroeder, the circuit’s chief judge, said Andrade’s case was similar to to one in 1983 in which the U.S. Supreme Court ruled that a South Dakota court had violated the 8th Amendment for sentencing to life without the possibility of parole a seven-time nonviolent recidivist who had written a $100 check while having no funds in the bank.

On the other hand, Paez wrote, Andrade’s case was different from the last major cruel and unusual punishment ruling issued by the Supreme Court in 1991. In that instance, the high court held that it was not a violation of the 8th Amendment for Michigan courts to impose a life sentence on a man for possessing more than 650 grams of cocaine.

In the decade since that ruling was issued, there has been only one instance in which a federal court has struck down a sentence on 8th Amendment grounds, according to the dissent issued Friday by Judge Joseph T. Sneed, who said the majority had failed to apply the reasoning of the 1991 decision--Harmelin v. Michigan.

Sneed contended that the 9th Circuit had failed to give proper deference to the Legislature and California voters, who overwhelmingly enacted the three-strikes law in 1994. “We must accord great deference to state-mandated sentences,” Sneed wrote. “We should not employ our power to strike down a sentence as unduly harsh when its primary purpose is the incapacitation of a habitual criminal offender.”


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