Strike Out Three-Strikes Law

The California Legislature must immediately amend the three-strikes law so that it is not used to put people in prison for long periods of time for minor, nonviolent offenses.

On Friday, the U.S. 9th Circuit Court of Appeals found that it was cruel and unusual punishment to sentence a man to 50 years to life in prison when his third strike was stealing $153 worth of videotapes from a department store.

This is the first time that any court has cited cruel and unusual punishment in finding that the application of the three-strikes law is unconstitutional. Now there probably will be a flurry of litigation as others argue that their sentences also are grossly disproportionate to the offense committed. The California Legislature should revise the law so that nonviolent, minor crimes are not counted as strikes.

About 350 people are serving sentences of at least 25 years to life in prison, with their third strike being “petty theft.” Leandro Andrade, whom I represented in the 9th Circuit and whose case was decided Friday, is typical. He was never convicted of any violent crime. He committed three burglaries on the same day in 1983. He was convicted on three separate counts and served his sentence. He also had a marijuana conviction that was not considered a prior strike.

In 1996, he was caught twice within a week stealing videotapes from Kmart stores. Under California law, his crime is deemed petty theft. This is a misdemeanor carrying a sentence of no more than six months in prison. The maximum sentence for two counts of petty theft is a year in prison. But under California law, if the individual has a prior felony conviction, the misdemeanor petty theft count is considered a felony.

The state thus “double counts” the prior conviction. First, it is used to convert a misdemeanor into a felony. Then the enhanced felony is used as a third strike. The judge in Andrade’s case imposed two sentences of 25 years to life to run consecutively, or 50 years to life altogether. As the 9th Circuit pointed out, only first-degree murder and a few other violent crimes in California are punishable by a sentence of 50 years to life.

Andrade is not alone in serving a ridiculously long sentence for a minor offense.

Last year, I sought U.S. Supreme Court review for a defendant who was sentenced to 25 years to life for stealing an umbrella and two bottles of liquor worth $43 from a supermarket on a cold, rainy night. Unfortunately, review was denied, as it was two years earlier for a man who was sentenced to 25 years to life in prison for a third strike of stealing a bottle of vitamins. Recently, the same sentence was imposed on a man who stole several cookies; earlier there was a man who received that sentence for stealing a slice of pizza.

The three-strikes law was intended to take violent criminals off the streets for a long time. There is no indication that the Legislature--or the voters who ratified the law by initiative--ever wanted it to extend to nonviolent crimes. It is irrational to impose such sentences. The costs of incarceration vastly outweigh the benefits to society.

For at least a century, the U.S. Supreme Court has held that grossly disproportionate penalties constitute cruel and unusual punishment in violation of the 8th Amendment. If anything is “grossly disproportionate,” isn’t it a sentence of 50 years to life for stealing $153 worth of videotapes or 25 years to life for stealing a few cookies?

The appeals court wrote a very careful and narrow opinion declaring only that Andrade’s sentence was unconstitutional; the court did not invalidate the three-strikes law or indicate how other sentences should be treated. Also, the state probably will seek review of the court’s decision all the way to the U.S. Supreme Court.

Therefore, the Legislature should act immediately to clarify the law and make clear that nonviolent, minor crimes should not be considered as a strike or be the basis for imposing sentences of 25 years to life in prison.

California Atty. Gen. Bill Lockyer should change his office’s policy of defending such sentences on appeal. His oath of office obligates him to follow the Constitution, and he could decide not to defend such long sentences for petty offenses.

This is a matter of basic humanity and decency. The Legislature should not wait to see what the Supreme Court does or how the courts handle the hundreds of new petitions that are sure to be filed. The Legislature should amend the three-strikes law now.