Pubdate: Tue, 02 Apr 2002
Source: Washington Post (DC)
Copyright: 2002 The Washington Post Company
Contact:  http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Author: Charles Lane
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

COURT TO REVIEW 'THREE STRIKES'

Justices Agree To Hear Two Cases Under California Sentencing Law

The Supreme Court announced yesterday that it will consider whether a 
California law that imposes dramatically tougher prison sentences on repeat 
criminal offenders violates the constitutional ban on "cruel and unusual" 
punishment.

By agreeing to hear the cases of two men who are serving decades in prison 
for theft under California's law requiring a 25-years-to-life sentence for 
third felony convictions, the justices have stepped into a mounting 
national debate over the fairness and efficiency of criminal justice.

"Three strikes and you're out" laws were popular when enacted in California 
and some 25 other states during the mid-1990s; many state law enforcement 
officials -- and voters -- continue to credit them for much of the recent 
decline in crime, arguing that the laws take career offenders off the streets.

California's three-strikes law is considered the toughest in the country, 
as it authorizes possible life sentences for any third felony conviction, 
even a nonviolent or relatively minor one, as long as the defendant's two 
prior offenses were serious or violent.

As incarceration rates have risen, however, three-strikes laws have come 
under fire from civil rights groups, defense lawyers and even some 
prosecutors who argue that it is disproportionate to imprison people for 
decades for offenses that might have brought a brief jail term under 
different circumstances.

For many such offenders, opponents of "three strikes" say, drug treatment 
would be a more humane and cost-effective alternative.

"The issue is serious . . . and the stakes are substantial," Justice David 
H. Souter wrote in February 2001, dissenting with Justice Stephen G. Breyer 
from the court's decision not to review an earlier case about the 
California law.

At the time, no lower court had yet voided a California three-strikes 
sentence, and two other liberal-leaning justices, John Paul Stevens and 
Ruth Bader Ginsburg, were on record as saying the issue was "serious" but 
needed more lower-court review. The votes of four of the nine justices are 
needed to agree to hear an appeal. The court is led by a five-member 
conservative majority.

Then, in November 2001, the San Francisco-based U.S. Court of Appeals for 
the 9th Circuit overturned a sentence of two consecutive 25-years-to-life 
terms for convicted thief Leandro Andrade.

The 9th Circuit held that the Constitution "does not permit the application 
of a law which results in a sentence grossly disproportionate to the crime."

California Attorney General Bill Lockyer asked the justices to reinstate 
Andrade's sentence, arguing in his petition for review that "unless 
repudiated," the appeals court's "decision will open the floodgates of 
litigation on nearly all three-strikes sentences." In agreeing to hear 
Lockyer's appeal, the court said yesterday that it would decide the case in 
tandem with an appeal by Gary A. Ewing, who is seeking reversal of his 
25-years-to-life sentence for stealing golf clubs worth about $1,200.

California's three-strikes law was adopted at a time of strong public 
revulsion at the 1994 abduction and murder of 12-year-old Polly Klaas -- a 
brutal crime for which a repeat offender on parole at the time of the 
kidnapping was later convicted and sentenced to death.

Some 57 percent of the 7,000 people serving sentences under the California 
law were convicted of nonviolent third felonies, including 644 convicted of 
drug possession and 340 convicted of petty theft, state officials say.

One of the most hotly debated aspects of California's three-strikes law, 
other than the long mandatory prison terms, is that prosecutors have 
discretion whether to charge certain third offenses as felonies rather than 
misdemeanors. (Judges may, in some cases, decide to reduce felonies to 
misdemeanors after conviction.)

This "wobbler" rule is at the heart of the two cases on which the court has 
agreed to rule.

Andrade, a heroin addict, had been convicted of five felonies, including 
first-degree burglary and a drug charge, before 1995, when he was arrested 
for stealing about $150 worth of videos from K-mart stores.

Petty theft is usually treated as a misdemeanor in California, punishable 
by six months in jail and a $1,000 fine. But Andrade's previous felony 
convictions permitted the prosecutor to treat his latest offense as a 
felony, activating the "three strikes" rule. He will be eligible for parole 
in 2046, when he is 87.

Ewing was also a drug addict who financed his habit by theft. In March 
2000, he was spotted by a clerk at an El Segundo, Calif., pro shop walking 
stiff-legged from the store to the parking lot. Police discovered that 
Ewing had left the pro shop with three expensive golf clubs stuffed down 
his pants. If Ewing's crime, grand theft, had been treated as a 
misdemeanor, it would have carried a one-year maximum sentence.

Ewing, who has AIDS, will be eligible for parole in 2025, when he is 63. He 
challenged his sentence in state court, but his appeals were denied and he 
petitioned for Supreme Court review.

"The sentence of [25] years to life is cruel and unusual punishment for a 
person who is seriously ill and does not expect to live very long because 
he stole golf clubs," Ewing's petition said.

The cases are Lockyer v. Andrade, No. 01-1127, and Ewing v. California, No. 
01-6978. The court will hear oral arguments next fall, and a decision is 
due by July 2003.
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