Union Tribune

October 11, 2002

3-strikes law faces a test of fairness
Supreme Court set for two state cases

By DANA WILKIE
COPLEY NEWS SERVICE

Early next month, when Douglas Danzig walks to a mahogany lectern to address the U.S. Supreme Court, he will argue that Leandro Andrade is a career criminal who deserves to be in prison for the next half century.

And when it's Erwin Chemerinsky's turn, he will argue that stealing a handful of children's videos is no reason to keep a man in prison for practically the rest of his life.

For a brief 60 minutes, the deputy state attorney general from San Diego County and the Southern California law professor will try to convince the country's highest court that Andrade's sentence under California's three-strikes law was either fair and deserved or a horrible miscarriage of justice.

Andrade's is one of two California cases to be argued before the court Nov. 5. The other case involves Gary Albert Ewing, whose third strike was stealing golf clubs.

When the nine justices return their ruling, probably in the spring, they will answer this fundamental question: Does California's three-strikes law the measure that has taken more than 7,000 career criminals off the streets for long periods of time violate the U.S. Constitution's ban against cruel and unusual punishment?

Their ruling could inject California's criminal justice system with new confidence about the law that eight years ago won overwhelming support from state lawmakers and voters. Or it could make attorneys, juries and judges far more cautious about putting third-strike criminals behind bars for 25 years or longer.

Finally, the ruling could raise doubts about lengthy prison terms handed down to nearly 350 men and women now serving third-strike sentences in California.

"If the Supreme Court (rules for Andrade), then I think the court really opens the door to other prisoners being able to challenge the application of the three-strikes law," Chemerinsky said.

Gregg McClain, a San Diego County deputy district attorney who has prosecuted many three-strikes cases, said the fact that so few three-strikes cases have reached higher courts indicates the law is working well.

"Overall, the law is being applied as the public wants it, and in what appears to be a manner that is judicially acceptable," McClain said.

California lawmakers enacted the three-strikes law in 1994 and voters overwhelmingly approved it that year after a repeat felon snatched 12-year-old Polly Klaas of Petaluma from a slumber party and murdered her.

Many states have three-strikes laws, but California's is the harshest. It requires a prison term of 25 years to life for anyone convicted of a third felony after two convictions for serious or violent felonies.

Today, 7,291 men and women are serving long prison terms in California for their third strikes. For most, their third offense was either a robbery, a first-degree burglary or drug possession. Sixty-six of them are from San Diego County.

There is extensive case law in California upholding the three-strikes law. The cases of Andrade and Ewing are the first to be accepted by the Supreme Court.

In November of 1995, Andrade walked into an Ontario K-Mart and stuffed $84.70 worth of videos into his pants. After store detectives stopped him, Andrade was arrested, charged and freed on bail. Two weeks later, he tried to walk out of a Montclair K-Mart with $68.84 worth of videos. He was charged again.

Prosecutors have portrayed Andrade, 44, as a heroin user who repeatedly stole to support his habit. His past record three separate prison terms for crimes that included residential burglary allowed his video thefts to be upgraded from misdemeanors to felonies, which qualified them as third strikes.

Last November, a divided 9th Circuit Court of Appeals overturned Andrade's sentence on the grounds it was cruel and unusual, which is prohibited by the Eighth Amendment of the Constitution.

In briefs submitted to the Supreme Court, prosecutors argue that Andrade's sentence is not overly harsh in light of his long record of crime; that the Eighth Amendment permits heavier penalties on habitual offenders; and that the California law lets courts reduce lesser felonies to misdemeanors so some defendants can avoid three-strikes sentences.

"Three-strikers have earned their long sentences because they are the most thick-skulled and predictably wicked of felons," wrote the California District Attorneys' Association in a separate brief before the court. "They hurt people, they hurt communities, and they hurt our economy. What remains but to remove them from us for long periods of time?"

Andrade's attorney portrays his client as an Army veteran who had been crime-free for nearly 12 years when he fell "off the wagon."

In briefs submitted to the court, he argues that Andrade's life sentence with no possibility of parole for 50 years is a "grossly excessive" punishment for shoplifting $153 worth of tapes.

"The Supreme Court, for almost a century, has said that grossly disproportionate penalties violate the Eighth Amendment," Chemerinsky said. "While there's deference to the states, there's not total deference."

The attorney arguing for the state, Danzig, would not comment on the case.

Ewing, a drug addict and AIDS victim, walked into an El Segundo golf shop in March 2000 and limped out with three golf clubs valued at $1,200 stuffed down the leg of his pants. A Los Angeles native who is now 40, Ewing had 10 convictions on his record, including four for robbery.

As with Andrade, prosecutors pursued the golf-club thefts as felonies rather than misdemeanors, kicking Ewing's case into the three-strikes arena. Ewing was sentenced to 25 years to life, and in July of 2001, the California Supreme Court refused to hear his appeal.

Ewing's attorney will argue that the sentence violates the constitutional ban against double jeopardy punishing a person twice for the same crime. In other words, he will argue, Ewing is being punished for prior crimes for which he already served time.

"We agree you can enhance his sentence because of his prior record, but this is excessive," said the attorney, Quin Denvir. "No matter what he did in the past . . . no shoplifter deserves to get 25 years to life in prison."

The state's attorney in the Ewing case, Donald DeNicola, did not return phone calls. DeNicola is expected to argue that the high court has already ruled that imposing a tougher sentence on someone with previous felony convictions is acceptable.

"For one who has previously been convicted of two serious or violent felonies, and has now been convicted of a felony again, a sentence of 25 years to life does not raise an inference of gross disproportionality," states the brief supporting Ewing's sentence.

Observers believe a ruling that favors Andrade and Ewing could affect the 344 men and women serving sentences for third strikes that involved petty theft.

The justices are likely to focus on two prior rulings the most recent ones made by the high court in major cases involving the Eighth Amendment.

In the 1991 case of Harmelin vs. Michigan, the court ruled that giving a life sentence to a man for possessing more than 650 grams of cocaine was not cruel and unusual. It was up to Michigan, the court said, to decide how to punish offenders.

Last year, in the case of Atkins vs. Virginia, the court ruled that imposing the death penalty on the mentally retarded violated the Eighth Amendment. In that case, the justices said there are limits to a state's discretion.

Supreme Court scholars agree that as the justices review the three-strikes cases, the conservatives on the court Chief Justice William Rehnquist and Justice Antonin Scalia are likely to take the view of the majority in the Harmelin vs. Michigan case. Justice Clarence Thomas is believed to share that view as well.

The scholars say the court's moderate to liberal justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer are likely to take the view of the majority in Atkins vs. Virginia.

Justices Anthony Kennedy and Sandra Day O'Connor are likely to be the swing votes.