Fed-X
10-08-2002, 07:58 PM
High court to review 'three strikes'
By Claire Cooper -- Bee Legal Affairs Writer
Published 2:15 a.m. PDT Tuesday, October 8, 2002
California's "three strikes" law will be reviewed by the U.S. Supreme Court for the first time next month in a showdown over potential life sentences in two shoplifting cases.
The hearing, one of the most important on the docket as the high court opened its 2002-03 term Monday, puts the spotlight on the types of offenders who have become the poster children for reform of the law: the people serving three-strikes sentences after stealing a slice of pizza, for example, or four chocolate chip cookies.
The question: whether it's constitutional to apply three-strikes sentences -- at least 25 years to life -- when the third strike is relatively trivial, but the first and second strikes were more serious felonies.
The cases before the court raise broad constitutional issues about the scope of every state's power to remove repeat offenders from society, and about the boundaries of the Eighth Amendment ban on inflicting "cruel and unusual punishments." California is getting support from the attorneys general of nine other states and the U.S. solicitor general.
"Three strikes is considered the most aggressive anti-recidivist measure among the states," said Charles Hobson, who filed a brief for the Sacramento-based Criminal Justice Legal Foundation, a pro-prosecution group. "If the (three-strikes) sentences are upheld, then recidivist (repeat offender) laws in other states should be safe from constitutional attack."
For prosecutors, the cases challenge a law they say has provided a sure and measurable deterrent, giving them a tool to sweep from the streets thugs and felons with persistent criminal histories.
On the other side, defense lawyers argue that they're not challenging all recidivist sentencing or even the entire three-strikes law. The issue, they say, is that certain three-strikes sentences are so out of whack with the crimes for which they're imposed that the Eighth Amendment doesn't permit them.
"Shoplifting, regardless of the offender's prior record, is still only shoplifting, and a constitutional sentence must reflect that basic fact," says a brief filed by Quin Denvir, the federal public defender in Sacramento.
Under California's three-strikes law, the crimes that can qualify as strikes one and two must be "serious" or "violent," but any felony can count as strike three. Because of a combination of sentencing laws unique to California, that third felony can result from shoplifting or another petty crime.
Of the 7,291 inmates serving three-strikes sentences in California prisons as of midyear, 344 were convicted of petty theft, the category that includes most shoplifting, according to Department of Corrections records.
Denvir and University of Southern California law professor Erwin Chemerinsky will deliver oral arguments for the defense. Douglas Danzig and Donald De Nicola, both deputies in the California attorney general's office, will make the prosecution arguments.
Supreme Court decisions striking down criminal penalties as "cruel and unusual" have been rare. In June, the justices ruled that the Eighth Amendment clause prohibits execution of the mentally retarded.
The court has wrestled with applying the Eighth Amendment to recidivist sentencing laws for more than a century but has failed to issue clear guidelines. Most of the relevant precedents were handed down before passage of the three-strikes law.
In 1980, the court upheld a Texas life sentence for obtaining $120.75 by false pretenses. The defendant's prior crimes were passing a forged check for $28.36 and racking up $80 worth of fraudulent credit-card charges.
In 1983, in reversing a South Dakota life sentence for writing a $100 bad check, the justices said there are limits to what they'll tolerate, but didn't say where they would draw the line. That defendant's prior crimes ranged from driving while intoxicated to third-degree burglary.
Eight years later, a plurality of the justices articulated an Eighth Amendment standard, saying that no sentence may be "grossly disproportionate" to the crime. Recidivism was not an issue in the case, in which a Michigan life sentence for possessing 672.5 grams (nearly 1 1/2 pounds) of cocaine was upheld.
The Supreme Court has turned down several previous opportunities to review California's three-strikes law, but in doing so new justices have joined some of the veterans in expressing concern about the pettiness of the third-strike crimes that have earned potential life sentences -- in one case, the theft of a bottle of vitamins. Even so, no case received the four votes needed to get on the high court's docket until now.
The upcoming hearing centers on two cases of shoplifting: of nine videotapes from two San Bernardino County Kmart stores in one case; and three golf clubs from an El Segundo pro shop in the other. Both thieves were caught with their loot still stuffed down their pants.
The crimes were prosecuted as felonies under an old state law that allows prosecutors to boost shoplifting from a misdemeanor to a felony when the defendant has a record of prior property crimes. The shoplifting offenses then became third strikes.
The upshot was that Leandro Andrade, convicted of taking five children's videotapes and, two weeks later, taking four more, won't be eligible for parole until he serves two three-strikes sentences -- at least 50 years. He'll be 87.
For Gary Ewing, the 37-year-old golf club thief, the sentence is 25 years to life, requiring him to serve almost 20 years longer, according to Denvir's Supreme Court brief, than "a first-time offender who blew up the pro shop in an effort to kill the pro shop clerk or who kidnapped the clerk to rob him."
While the defense briefs concentrate mainly on third strikes -- the relatively innocuous thefts of golf clubs, "Snow White," cookies or pizza -- prosecutors say the real issue is the first and second strikes and all the earlier crimes.
Three-strikes defendants, says a brief filed by the California District Attorneys Association, "earned their long sentences because they are the most thick-skulled and predictably wicked of felons."
Andrade, for example, was convicted of theft, three burglaries and transporting marijuana in the 17 years before his third strike. Ewing had a similar record of property crimes, as well as convictions for gun possession and battery.
By incapacitating confirmed lawbreakers like these, say the prosecutors, the three-strikes law has sharply reduced crime in California -- by as much as 41 percent, according to some figures.
But there are problems with that picture, too, and much debate about which statistics are meaningful.
California crime rates began to decline before the three-strikes law. The dip accelerated afterward, exceeding the national downward trend.
In the past two years, however, crime rates have been rising again, and most academic studies conclude that the law has had little impact on violent crime.
For example, one survey found that some counties with the best results -- such as San Francisco, where violent crimes dropped 33 percent in the mid-1990s -- rarely used the three-strikes law. In Sacramento County, where prosecutors used the law seven times more frequently, the violent crime dropped only 10 percent.
The Supreme Court's review comes on the heels of several failed attempts to soften the statute.
A recent initiative drive to rewrite the types of crimes that can qualify as third strikes foundered for lack of financial support. It was spearheaded by Joe Klaas, whose murdered granddaughter, Polly, was the most potent symbol in the campaign to enact the law eight years ago.
"We want the three-strikes law to focus only on violent crime," said Klaas. "We don't think people ought to get 25 years to life for shoplifting. Economically, it's terrible for a state that's so much in debt. In addition, it's just obscene."
Relatives of other victims opposed Klaas' recent petition drive. Thanks to them, to prosecutors and to the natural reluctance of lawmakers to be branded "soft on crime," other efforts to amend the law also have stalled. Even a bill providing for a study of the costs and benefits of the statute was vetoed by Gov. Gray Davis.
Only occasionally have California courts stepped in to reduce three-strikes penalties, though they have ample authority to do so under state statutes and judicial precedents, said Michael Vitiello, a professor at McGeorge School of Law in Sacramento.
State judges reduced the pizza thief's sentence to six years, for example, but refused to do anything for the fellow who stole the cookies.
Vitiello, who has written extensively about three-strikes laws, said the state's political process is so heavily stacked against reform that federal "judicial activism may be California's best hope."
But three-strikes supporters say the failure of reform efforts shows Californians have the version of the law they want, and the federal courts should not interfere.
A decision is expected next year.
By Claire Cooper -- Bee Legal Affairs Writer
Published 2:15 a.m. PDT Tuesday, October 8, 2002
California's "three strikes" law will be reviewed by the U.S. Supreme Court for the first time next month in a showdown over potential life sentences in two shoplifting cases.
The hearing, one of the most important on the docket as the high court opened its 2002-03 term Monday, puts the spotlight on the types of offenders who have become the poster children for reform of the law: the people serving three-strikes sentences after stealing a slice of pizza, for example, or four chocolate chip cookies.
The question: whether it's constitutional to apply three-strikes sentences -- at least 25 years to life -- when the third strike is relatively trivial, but the first and second strikes were more serious felonies.
The cases before the court raise broad constitutional issues about the scope of every state's power to remove repeat offenders from society, and about the boundaries of the Eighth Amendment ban on inflicting "cruel and unusual punishments." California is getting support from the attorneys general of nine other states and the U.S. solicitor general.
"Three strikes is considered the most aggressive anti-recidivist measure among the states," said Charles Hobson, who filed a brief for the Sacramento-based Criminal Justice Legal Foundation, a pro-prosecution group. "If the (three-strikes) sentences are upheld, then recidivist (repeat offender) laws in other states should be safe from constitutional attack."
For prosecutors, the cases challenge a law they say has provided a sure and measurable deterrent, giving them a tool to sweep from the streets thugs and felons with persistent criminal histories.
On the other side, defense lawyers argue that they're not challenging all recidivist sentencing or even the entire three-strikes law. The issue, they say, is that certain three-strikes sentences are so out of whack with the crimes for which they're imposed that the Eighth Amendment doesn't permit them.
"Shoplifting, regardless of the offender's prior record, is still only shoplifting, and a constitutional sentence must reflect that basic fact," says a brief filed by Quin Denvir, the federal public defender in Sacramento.
Under California's three-strikes law, the crimes that can qualify as strikes one and two must be "serious" or "violent," but any felony can count as strike three. Because of a combination of sentencing laws unique to California, that third felony can result from shoplifting or another petty crime.
Of the 7,291 inmates serving three-strikes sentences in California prisons as of midyear, 344 were convicted of petty theft, the category that includes most shoplifting, according to Department of Corrections records.
Denvir and University of Southern California law professor Erwin Chemerinsky will deliver oral arguments for the defense. Douglas Danzig and Donald De Nicola, both deputies in the California attorney general's office, will make the prosecution arguments.
Supreme Court decisions striking down criminal penalties as "cruel and unusual" have been rare. In June, the justices ruled that the Eighth Amendment clause prohibits execution of the mentally retarded.
The court has wrestled with applying the Eighth Amendment to recidivist sentencing laws for more than a century but has failed to issue clear guidelines. Most of the relevant precedents were handed down before passage of the three-strikes law.
In 1980, the court upheld a Texas life sentence for obtaining $120.75 by false pretenses. The defendant's prior crimes were passing a forged check for $28.36 and racking up $80 worth of fraudulent credit-card charges.
In 1983, in reversing a South Dakota life sentence for writing a $100 bad check, the justices said there are limits to what they'll tolerate, but didn't say where they would draw the line. That defendant's prior crimes ranged from driving while intoxicated to third-degree burglary.
Eight years later, a plurality of the justices articulated an Eighth Amendment standard, saying that no sentence may be "grossly disproportionate" to the crime. Recidivism was not an issue in the case, in which a Michigan life sentence for possessing 672.5 grams (nearly 1 1/2 pounds) of cocaine was upheld.
The Supreme Court has turned down several previous opportunities to review California's three-strikes law, but in doing so new justices have joined some of the veterans in expressing concern about the pettiness of the third-strike crimes that have earned potential life sentences -- in one case, the theft of a bottle of vitamins. Even so, no case received the four votes needed to get on the high court's docket until now.
The upcoming hearing centers on two cases of shoplifting: of nine videotapes from two San Bernardino County Kmart stores in one case; and three golf clubs from an El Segundo pro shop in the other. Both thieves were caught with their loot still stuffed down their pants.
The crimes were prosecuted as felonies under an old state law that allows prosecutors to boost shoplifting from a misdemeanor to a felony when the defendant has a record of prior property crimes. The shoplifting offenses then became third strikes.
The upshot was that Leandro Andrade, convicted of taking five children's videotapes and, two weeks later, taking four more, won't be eligible for parole until he serves two three-strikes sentences -- at least 50 years. He'll be 87.
For Gary Ewing, the 37-year-old golf club thief, the sentence is 25 years to life, requiring him to serve almost 20 years longer, according to Denvir's Supreme Court brief, than "a first-time offender who blew up the pro shop in an effort to kill the pro shop clerk or who kidnapped the clerk to rob him."
While the defense briefs concentrate mainly on third strikes -- the relatively innocuous thefts of golf clubs, "Snow White," cookies or pizza -- prosecutors say the real issue is the first and second strikes and all the earlier crimes.
Three-strikes defendants, says a brief filed by the California District Attorneys Association, "earned their long sentences because they are the most thick-skulled and predictably wicked of felons."
Andrade, for example, was convicted of theft, three burglaries and transporting marijuana in the 17 years before his third strike. Ewing had a similar record of property crimes, as well as convictions for gun possession and battery.
By incapacitating confirmed lawbreakers like these, say the prosecutors, the three-strikes law has sharply reduced crime in California -- by as much as 41 percent, according to some figures.
But there are problems with that picture, too, and much debate about which statistics are meaningful.
California crime rates began to decline before the three-strikes law. The dip accelerated afterward, exceeding the national downward trend.
In the past two years, however, crime rates have been rising again, and most academic studies conclude that the law has had little impact on violent crime.
For example, one survey found that some counties with the best results -- such as San Francisco, where violent crimes dropped 33 percent in the mid-1990s -- rarely used the three-strikes law. In Sacramento County, where prosecutors used the law seven times more frequently, the violent crime dropped only 10 percent.
The Supreme Court's review comes on the heels of several failed attempts to soften the statute.
A recent initiative drive to rewrite the types of crimes that can qualify as third strikes foundered for lack of financial support. It was spearheaded by Joe Klaas, whose murdered granddaughter, Polly, was the most potent symbol in the campaign to enact the law eight years ago.
"We want the three-strikes law to focus only on violent crime," said Klaas. "We don't think people ought to get 25 years to life for shoplifting. Economically, it's terrible for a state that's so much in debt. In addition, it's just obscene."
Relatives of other victims opposed Klaas' recent petition drive. Thanks to them, to prosecutors and to the natural reluctance of lawmakers to be branded "soft on crime," other efforts to amend the law also have stalled. Even a bill providing for a study of the costs and benefits of the statute was vetoed by Gov. Gray Davis.
Only occasionally have California courts stepped in to reduce three-strikes penalties, though they have ample authority to do so under state statutes and judicial precedents, said Michael Vitiello, a professor at McGeorge School of Law in Sacramento.
State judges reduced the pizza thief's sentence to six years, for example, but refused to do anything for the fellow who stole the cookies.
Vitiello, who has written extensively about three-strikes laws, said the state's political process is so heavily stacked against reform that federal "judicial activism may be California's best hope."
But three-strikes supporters say the failure of reform efforts shows Californians have the version of the law they want, and the federal courts should not interfere.
A decision is expected next year.