Pubdate: Sun, 03 Nov 2002
Source: San Antonio Express-News (TX)
Copyright: 2002 San Antonio Express-News
Contact:  http://www.mysanantonio.com/expressnews/
Details: http://www.mapinc.org/media/384
Author: Mark Helm, Hearst Washington Bureau

COURT TO UMPIRE '3 STRIKES' DEBATE

WASHINGTON - Nearly a decade ago, the kidnapping and murder of 12-year-old 
Polly Klaas by a repeat offender so horrified Californians that voters 
approved the "three-strikes" law requiring a prison sentence of 25 years to 
life for a criminal's third felony conviction.

Now, the Supreme Court must decide if the California law went too far in 
the cases of one man who stole videocassettes and another who stole golf clubs.

For both men, the crimes were their "third strike," requiring the court to 
sentence each to a minimum of 25 years in prison.

On Tuesday, the justices will consider whether the law violates the Eighth 
Amendment's protection against cruel and unusual punishment when it's used 
against a defendant whose third-strike conviction is for a small-time theft.

The high court's decision - expected by next summer - could have 
ramifications for 340 prisoners who are serving up to life in prison in 
California on third-strike convictions involving petty theft.

"If the court rules in favor of these two men, it would open up floodgates 
of litigation in which hundreds if not thousands of defendants would 
challenge their sentence as cruel and unusual," says Lawrence Brown, 
executive director of the California District Attorneys Association.

The three-strikes law, known as ballot Proposition 184, was approved in 
1994 with 72 percent of the vote. The law requires that the first two 
offenses be of serious or violent nature.

Since then, 25 other states and Congress have enacted their own mandatory 
sentencing laws. But California's statute has remained the most severe.

Leandro Andrade discovered just how tough the law could be after his arrest 
in 1995.

Andrade went to a Kmart in Ontario, Calif., stuffed five videotapes worth 
$84.70 inside his pants and walked out of the store.

He didn't make it more than a few steps out the door when store personnel 
stopped him and recovered the merchandise. The police charged him with 
petty theft and he was freed on bail.

Two weeks later, Andrade tried the same thing at another Kmart, this time 
taking four videotapes worth $68.84 and stuffing them inside his pants. 
Again he was caught and charged with petty theft.

In California, petty theft usually is a misdemeanor, punishable by up to 
six months in jail and a $1,000 fine. But Andrade, a heroin addict, had 
been convicted of such crimes several times before, and under state law, 
the prosecutor in the two Kmart thefts was able to bump up the charges from 
a misdemeanor to a felony.

As a result, the trial judge had no choice under the law but to sentence 
Andrade to 25 years to life for each theft, with no time off for good behavior.

Andrade was 37 when he was imprisoned for stealing the tapes; he'll be 87 
when he becomes eligible for parole in 2046.

Andrade's lawyer, Erwin Chemerinsky, a law professor at the University of 
Southern California, says his client likely won't live long enough to apply 
for parole, thus making his punishment a life sentence.

"The punishment simply doesn't fit the crime," he says.

But in documents filed with the U.S. Supreme Court, California Attorney 
General Bill Lockyer says the state is entitled to separate a repeat 
offender from society "for a longer period of time than a first-time offender."

He says the voters of California wanted to get people with a history of 
crime off the streets.

But Chemerinsky argues that when California voters approved the measure, 
they still were reeling from the kidnapping and murder of Klaas by Richard 
Allen Davis, a career criminal who was out on parole for a kidnapping 
conviction.

Klaas' father, Marc, who helped lead the campaign to for the three-strikes 
law, declined to comment on the Andrade case.

Chemerinsky says voters expected the law would be used against violent 
criminals, such as Davis, but not petty thieves.

Several to soften the three-strikes law have failed. Political leaders, 
Chemerinsky says, don't want to appear soft on crime.Last year, the 9th 
U.S. Circuit Court of Appeals in San Francisco ruled Andrade's sentence was 
"grossly disproportionate" to his crime.

State courts came to the same conclusion on another case involving Gary 
Ewing, 39, who was sentenced to 25 years for stealing three golf clubs in 
2000 from a pro shop at a golf course in El Segundo, Calif.

On both cases, the appeals court relied on a 1991 Supreme Court ruling.

In that case, the justices upheld Michigan's imposition of a life sentence 
without parole for a first-time offender convicted of possessing 2 pounds 
of cocaine but said there were "grossly disproportionate" sentences that 
might be unconstitutional.

In his appeal to the high court, Lockyer said the fact that California's 
three-strikes law "may be the most harsh amongst the states does not render 
it unconstitutional.""One state has to be the most severe," he wrote, 
noting that as the biggest state, California has "the greatest crime problem."

Brown says the law has helped reduce crime in California by 40 percent 
since 1994, twice the national average.

"The law works because it's simple," he says. "There's not a criminal out 
there that doesn't know about the law and what strike they're on."
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