By Charles Lane, The Washington Post
The Supreme Court strongly backed California’s authority to implement the nation’s toughest “three strikes and you’re out” law today, ruling in the case of a shoplifter sentenced to decades in prison that even a long sentence triggered by minor crime does not necessarily violate the constitutional prohibition on “cruel and unusual punishment.”
In deciding by a 5-4 vote that Gary Ewing’s sentence of 25 years to life for stealing three golf clubs was a defensible exercise of California’s right to fight crime as it sees fit, the court instructed opponents of the increasingly controversial law to seek change in the state legislature, not through the courts.
“To be sure, Ewing’s sentence is a long one,” Justice Sandra Day O’Connor wrote. “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.”
And the court’s ruling seems to close the door on future court challenges to harsh sentences in the 25 other states that have three-strikes provisions, legal analysts said.
“The fact that these sentences don’t violate the [Constitution] makes it harder to imagine any case in which the court is going to find a sentence grossly disproportionate,” said Erwin Chemerinsky, a law professor at the University of Southern California who helped oppose the California law in the Supreme Court.
The five votes in favor of the outcome came from O’Connor, Chief Justice William H. Rehnquist, and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented.
Breyer read his opinion from the bench, in a gesture dissenting justices usually reserve for cases in which they disagree especially strongly with the majority. In his opinion, which was co-signed by the other three dissenters, he noted that criminals guilty of murder and violent offenses in California have served much shorter prison sentences than Ewing will under the three-strikes law, and that Ewing’s sentence was two to three times longer than other states would have imposed in similar circumstances.
“The case before us is . . . one in which a court can say with reasonable confidence that the punishment is grossly disproportionate to the crime,” Breyer wrote.
California’s three-strikes law was passed in 1994 by both the state legislature and a popular referendum in the wake of 12-year-old Polly Klaas’s murder by a violent felon who was out on parole.
The case triggered a strong voter reaction not only in California but also across the country, where “three strikes” laws effected what O’Connor yesterday called “a sea change” in criminal justice.
Statistics in California show that taking “career criminals” off the streets has lowered crime; at the same time, concern is mounting in the state about the numbers of minor offenders being swept up by the law.
Currently, 344 people are serving 25 years to life for petty theft after prior felony convictions; some 650 are serving similar sentences for possession of small amounts of drugs.
Under its precedents, the court’s task today was to compare and contrast Ewing’s prison sentence with those it had previously evaluated to see if they qualified as so “grossly disproportionate” as to violate the Eighth Amendment prohibition on “cruel and unusual” punishment.
In two previous rulings involving nonviolent repeat offenders, the court had upheld a sentence of life with parole after 10 to12 years for a $120 fraud charge, and struck down a life sentence without parole for writing a $100 bad check. It had also upheld a life without parole sentence for a first offender convicted of possessing 672 grams of cocaine.
O’Connor, writing for herself, Rehnquist and Kennedy only, ruled that Ewing’s sentence was not grossly disproportionate in light of his “long history of felony recidivism,” which included three burglaries and a robbery.
But Scalia wrote separately to note that the Eighth Amendment is meant to ban only certain methods of punishment. He said there is no objective way to measure the proportionality of prison sentences, so the sentence should be affirmed simply in deference to the California legislature.
And Justice Clarence Thomas agreed with Scalia, but added that, even if the past Supreme Court cases did offer a clear way to measure proportionality, he would not apply them -- since in his view the Eighth Amendment contains no notion of proportionality at all.
Indeed, the very lack of a clear principle in its past cases was the basis for the court’s decision today to uphold a second California prisoner’s 50-years-to-life “three strikes” sentence in a companion case to Ewing’s.
Leandro Andrade, a heroin addict with a long criminal record, was sentenced to 25 years to life on each of two counts of shoplifting videotapes to finance his habit. Already 37 at the time of his conviction, Andrade will be behind bars until he is at least 87.
He lost his appeals in the California state courts, but the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, upheld his constitutional challenge to the sentence. The 9th Circuit ruled that it was contrary to “clearly established” Supreme Court precedent because Andrade’s case closely resembled the life sentence without parole for a $100 bad check that the court had previously struck down..
But in a 5-4 ruling also written by O’Connor, the Supreme Court ruled that the state courts had not been wrong to reach a different conclusion, since they had made a reasonable effort to parse Supreme Court decisions “that, in determining whether a particular sentence of a term of years can violate the Eighth Amendment . . . have not established a clear or consistent path for courts to follow.”
And O’Connor noted that “Andrade retains the possibility of parole.”
The cases are Ewing v. California, No. 01-6978 and Lockyer v. Andrade, No. 01127.