High court debates 'three-strikes' law

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High court debates 'three-strikes' law

Most justices appear to see Calif. statute as constitutional

By Lyle Denniston, Globe Correspondent, 11/6/2002

WASHINGTON - The nation's strictest ''three-strikes'' law, which can lead to a life prison sentence for something as minor as shoplifting if the individual has been convicted of other crimes in the past, got a largely sympathetic hearing from the Supreme Court yesterday.

For two hours, the nine justices explored with seeming acceptance the constitutionality of California's 1994 law, which was adopted by the state's voters in response to a campaign by supporters to ''put ******s, murderers, and child molesters behind bars where they belong.'' Proposition 184 got more than 70 percent voter approval following the murder of a 12-year-old California girl, Polly Klaas, by a man with repeated prior convictions.

A majority of the nine justices made comments or asked questions that left the impression they found no clear violation of the Constitution's ban on excessive punishment from such laws. In fact, only two of the nine justices reacted skeptically to Proposition 184.

Justice Antonin Scalia, who emerged during the hearing as a strong champion of the law, told a defense lawyer, ''Your client is a very good candidate for this law: He is the kind of person you want to get off the streets.'' The client, Gary Albert Ewing of Los Angeles, was given a sentence of 25 years to life for stealing three golf clubs, worth about $1,200, from a pro shop - the last, but least serious, of a series of convictions.

Ewing's lawyer, public defender Quin Denvir of Sacramento, argued that ''the fact that he's committed serious crimes in the past does not make this a serious crime'' justifying a life sentence.

Laws similar to California's now exist in 25 other states, including Rhode Island, though none is as tough as Proposition 184. Designed originally to focus mainly on criminals with lengthy records of serious crimes, such laws in actual operation have often reached individuals whose ''third strike'' was a minor offense. That is the situation that led to constitutional tests in two cases the justices heard.

One was Ewing's case, the other involved Leandro Andrade, who was sentenced to 50 years to life for two separate episodes of shoplifting videotapes with a total value of $154 from discount stores in Montclair and Ontario, Calif. Andrade had a long history of nonviolent crimes.

The key issue before the court is whether it is ''cruel and unusual punishment'' under the Constitution's Eighth Amendment to send an individual to prison for life when the crime that actually triggers that sentence would be punished as a minor offense, if it were not the ''third strike.''

The Supreme Court's last ruling on when a prison sentence is constitutionally excessive was made 11 years ago in a split decision that appeared to rule out only sentences that were ''grossly disproportionate'' to the crime involved.

Justice Anthony M. Kennedy, the author of the key opinion in that 1991 ruling, said yesterday that the court should not focus on how minor the latest crime was in judging whether a life prison sentence for a repeat offender was excessive.

Proposition 184, he said, ''provides simple, clear notice'' of severe punishment for a third strike, so the whole purpose of the law is to combat repeat offenses. But, he said, ''that whole policy would be undercut'' by focusing only on the severity of the crime that led to a lengthy sentence.

Chief Justice William H. Rehnquist suggested that states should be allowed to choose for themselves ''that this kind of repeat offender is the kind it wants to get off the streets.''

Merely because one state chooses to do that with a more severe form of punishment should not make a difference, the chief justice said, because ''there is always going to be some states that punish more than others.''

Justice Stephen G. Breyer, who raised the most objections during the hearing to the lengthy sentences given Ewing and Andrade, said they were on a par with what an individual would face for committing murder or hijacking an airplane. ''Why,'' he asked, ''shouldn't I say that's just too much'' for stealing $1,200 worth of golf clubs?

The other justice who appeared to be questioning the validity of the California approach was John Paul Stevens.

The court is expected to decide the two cases by next summer.

This story ran on page A2 of the Boston Globe on 11/6/2002.

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