Crying Foul on 3 Strikes

Should a middle-age man spend 50 years or more in prison for stealing nine videotapes from Kmart?

Since passage of California’s “three strikes and you’re out” law in 1994, district attorneys statewide have, one by one, concluded that putting people away for life for minor crimes is grossly unfair and a waste of taxpayer dollars--even when the criminals are, as the law requires, repeat offenders. One after another, the district attorneys have quietly stopped prosecuting many nonviolent crimes as third-strike offenses, instead using their discretion to seek convictions that carry tough but less draconian sentences.

Last week, a federal appeals court panel had the backbone to unequivocally declare the imposition of a life sentence for a petty crime to be unconstitutionally harsh. In its 2-1 decision, the U.S. 9th Circuit Court of Appeals said 43-year-old Leandro Andrade’s 50-year sentence for shoplifting videotapes was so “grossly disproportionate” to his crime as to constitute cruel and unusual punishment, a violation of the Constitution’s 8th Amendment.

Judge Richard A. Paez, the author of the ruling, pointed out that only first-degree murderers and a few other kinds of violent criminals can draw a longer sentence than Andrade. “Our decision does not invalidate California’s three-strikes law,” he said. “Rather our holding is limited to ... the unusual circumstances of Andrade’s case.”

Petty thefts are generally misdemeanor crimes. Had Andrade’s 1995 thefts of videotapes worth $153.54 been his first offense, he might have received a maximum penalty of six months in county jail and a $1,000 fine. But a quirk in California’s three-strikes law transforms petty thefts by repeat offenders into felonies punishable by life terms. Few of the other two dozen states that increase prison sentences for recidivists treat petty crimes so harshly. In California, 350 of the 6,700 people serving life terms for third strikes were convicted of petty thefts, according to Andrade’s lawyer.

Even those lawmakers who recognize this as injustice and see the absurdity of filling expensive prison cells with petty thieves have repeatedly failed to win support for sound measures limiting third strikes to violent crimes. The circuit court’s opinion, if it stands, will have succeeded where they have not. In the process, the decision opens the door for many of those 350 petty thieves to challenge their life sentences.

Prosecutors need the legal clout to lock repeat violent predators away for as long as possible. But justice must not only be swift and certain; it needs to fit the crime. Prosecutors now contemplating an appeal of the circuit court’s tempered and welcome ruling should keep that in mind.