Supreme Court to Hear Three-Strikes Challenge

The Supreme Court took up California’s defense of its three-strikes law Monday, saying it will rule on whether it is cruel and unusual punishment to send a criminal to prison for 50 years for stealing $153 worth of videotapes.

The case, to be heard in the fall, does not threaten the state’s authority to lock up for life those who commit several violent crimes. However, the court could reject the state’s use of a minor theft or drug possession as a “third strike” that triggers a long prison term. It is the first time the high court will rule on a direct challenge to a three-strikes law.

California Atty. Gen. Bill Lockyer called the justices’ decision “welcome news.”

Twice in recent months, the U.S. 9th Circuit Court of Appeals has overturned the convictions of repeat criminals who were given a prison term of at least 25 years for a third strike that was a petty theft.

A Supreme Court ruling will “provide clarification to judges, prosecutors and defense attorneys on how the U.S. Constitution’s ban on cruel and unusual punishment applies to California’s three-strikes law,” Lockyer said.

USC law professor Erwin Chemerinsky, who was asked by the 9th Circuit to represent the two defendants, said it is cruel and unusual punishment to impose a life term for a minor theft. “California is the only state where a misdemeanor shoplifting charge can be the basis for a life prison term,” Chemerinsky said.

California’s voters approved the three-strikes law in 1994 after the kidnapping and murder of 12-year-old Polly Klaas by Richard Allen Davis, a repeat criminal who was on parole from an earlier kidnapping.

Most states impose extra, longer prison terms on repeat offenders, and 26 states have a version of the three-strikes law. But California’s law is considered the most severe because it can lead to a life sentence for a criminal who has committed nonviolent offenses, such as shoplifting.

Among the nearly 7,000 California inmates who are serving life terms under the law, 331 are there for a third strike that was a petty theft, according to the California Department of Corrections. An additional 603 were charged with a third strike for drug possession.

The state’s judges have consistently rejected challenges to these stiff sentences based on the 8th Amendment.

But in November, the 9th Circuit Court overturned the 50-year sentence given to Leandro Andrade, a heroin addict from San Bernardino County.

In 1983, he was convicted for two home burglaries. He was arrested later on suspicion of several thefts and convicted of a federal charge for carrying a small amount of marijuana.

Then in 1995, after the state law took effect, he was stopped twice for shoplifting. On Nov. 4, he walked into a Kmart in Ontario, stuffed several videotapes into his pants and walked out. He was arrested in the parking lot and charged with stealing $84.70 worth of merchandise, but he was freed on bail.

Two weeks later, he tried again at a Kmart in Montclair. He stuffed several videotapes in his pants and walked out. Again, he was stopped by store personnel and charged with stealing merchandise, this time worth $68.84.

A jury convicted him of the two petty thefts. Normally, California law treats such thefts as misdemeanors, punishable by six months in jail.

Prosecutors cited his two prior burglary convictions and, because of his record, the new petty thefts were considered felonies. They also made for the third and fourth strikes against him. The judge gave Andrade 25 years to life in prison for each theft. Because Andrade was then 37 years old, his first chance for release would come in 2046, when he is 87.

The state courts rejected his appeals, but he filed a writ of habeas corpus that challenged his imprisonment as unconstitutional.

In its 2-1 decision, the 9th Circuit agreed and ruled that his sentence was “grossly disproportionate” to his offense.

The decision turned on a 1991 Supreme Court case, Harmelin vs. Michigan. In a 5-4 vote, the justices upheld a life sentence for Ronald Harmelin, a former Air Force officer and honor guard at the funeral of President Kennedy. Harmelin found himself in trouble by the mid-1980s, when he was stopped by police who found a one-pound block of cocaine in his car trunk.

Under a Michigan law, Harmelin was sentenced to life in prison. The high court’s ruling in the case carried a mixed message. A punishment cannot be “grossly disproportionate” to the crime, the justices said, but they nonetheless upheld Harmelin’s life sentence as not excessive for his drug crime.

Recently, the Harmelin case has emerged as the key precedent in the dispute over California’s three-strikes law, and not surprisingly, the two sides differ on what it means. State prosecutors say the decision shows that even extraordinarily stiff sentences are constitutional. Defense lawyers point to its statement that a “grossly disproportionate” sentence violates the 8th Amendment.

In citing the Harmelin case, the 9th Circuit’s Judge Richard Paez of Los Angeles wrote: “Our decision does not invalidate California’s three-strikes law. Rather, our holding is limited to the application of the . . . law to the unusual circumstances of Andrade’s case. . . . [His] sentence of life in prison with no possibility of parole for 50 years is grossly disproportionate to his two misdemeanor thefts of nine videotapes, even when we consider his history of nonviolent offenses.”

Paez did not say what other cases might be affected by the Andrade ruling.

In February, however, another 9th Circuit panel went further and overturned the life sentences of two men who had committed several violent offenses in the past. Richard Napoleon Brown had five felony convictions on his record, including robbery and assault with a deadly weapon, when he was arrested for stealing a $25 car alarm from a Walgreen’s store in Long Beach. This third strike sent him to prison for at least 25 years, a sentence the 9th Circuit also called “grossly disproportionate.”

Lockyer’s office wasted no time in asking the Supreme Court to take up the issue and to sweep aside the constitutional challenges to the California law.

The justices voted to hear the case of Lockyer vs. Andrade, 01-1127. They also agreed to hear a similar case that has a different legal posture.

Two years ago, Gary Ewing was seen walking with an unusual stiff-legged limp as he left the pro shop at the El Segundo Golf Course. As it turned out, he had three Calloway golf clubs in his pants leg--clubs that sold for $399 each. He had nine prior convictions on his record, and the attempted theft of the golf clubs sent him to prison for at least 25 years.

But unlike Andrade, Ewing’s was a new appeal to the Supreme Court, not a habeas petition on behalf of a longtime inmate. Congress has tightened the federal habeas corpus law and made it harder for U.S. judges to intervene in state cases.

By taking up Ewing vs. California, 01-6978, the Supreme Court gave itself the option of ruling that a third strike for a petty theft is unconstitutional for current and future cases, but not for prison inmates who are challenging past convictions.