Pubdate: Sat, 09 Feb 2002 Source: San Jose Mercury News (CA) Copyright: 2002 San Jose Mercury News Contact: http://www.sjmercury.com/ Details: http://www.mapinc.org/media/390 Author: Howard Mintz, Mercury News COURT UNDERMINES `THREE STRIKES' LAW U.S. Panel Invalidates Stiff Terms For Non-Violent 3rd Offense Expanding on an earlier ruling that weakened California's ``three strikes, you're out'' law, a federal appeals court on Thursday found that a potential life sentence for shoplifting is cruel and unusual punishment even when a defendant has a past record of violent crimes. In a unanimous decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals, while not invalidating the ``three strikes'' law, struck a major blow to a key ingredient of California's tough-on-crime initiative. Under the court's reasoning, it would be nearly impossible for defendants to receive a 25-years-to-life term for a non-violent third felony offense. The issue most likely will decided by the U.S. Supreme Court. The state has appealed to the nation's highest court an earlier appeals court ruling that voided the life sentence of a convicted shoplifter. Thursday's decision goes to the heart of the most controversial aspect of California's "three strikes" law, the lengthy sentences meted out to defendants for non-violent third strikes that often involve crimes such as drug possession or petty theft. California is the only state with a law that imposes its harsh terms for a non-violent third offense, prompting critics to charge that it is unfair. Shoplifter case The 9th Circuit broke new ground in November by finding that a 50-years-to-life sentence was cruel and unusual in a case involving Leandro Andrade, a shoplifter whose prior convictions were serious felonies but not classified as violent. In Thursday's decision, the federal appeals court went further, specifically finding that it was unconstitutionally harsh for two shoplifters, Ernest Bray Jr. and Napoleon Brown, to receive 25 years to life, despite the fact they had been convicted of violent felonies in the past. Bray was sentenced for stealing three videos in Long Beach. Brown was put away for stealing a $25 steering wheel alarm from a drug store. ``Bray and Brown's sentences of life imprisonment with no possibility of parole for 25 years are grossly disproportionate to their respective crimes,'' 9th Circuit Judge Marsha Berzon wrote. ``Even in light of their criminal records.'' While it is unclear how the ruling will apply to all non-violent third strike cases, it is likely to invalidate the sentences of more than 300 inmates now serving potential life terms for shoplifting. Overall, nearly half of California's 7,200 "three strikers" have been sentenced to 25 years to life for non-violent crimes of some sort. Erwin Chemerinsky, a University of Southern California law professor who represents Bray, Brown and Andrade, said the 9th Circuit is sending a clear message that the sentence for a third offense has to be proportionate to the crime, not the past record. ``I think this case opens the door to saying you can't impose a life sentence for a non-violent third offense,'' Chemerinsky said. ``This case does establish a proposition that is quite important.'' California Attorney General Bill Lockyer's office strongly disagrees with the 9th Circuit's recent "three strikes" rulings, arguing that the voters approved the law in 1994 with the intention of punishing repeat offenders. Last week, Lockyer asked the U.S. Supreme Court to review the Andrade case, warning that the ``decision will open the floodgates of litigation on nearly all three strikes sentences'' in California. Under review Hallye Jordan, Lockyer's spokeswoman, said the Bray and Brown cases are being reviewed. A recent Mercury News review of "three strikes" cases found that while 48 percent of Santa Clara County's 381 "three-strikers" are serving 25-years-to-life terms for non-violent crimes, 95 percent of those convicts had previously committed multiple violent acts before getting busted on their third offense. Santa Clara County Deputy District Attorney Dave Tomkins, who supervises the office's "three strikes" unit, said the 9th Circuit's rulings would not abolish the use of non-violent third offenses, but simply force prosecutors to be more selective in applying the law to only the worst violent criminals. ``The only thing I take out of it,'' Tomkins said, ``is that if you're a DA's office and evaluating these cases, you better be mindful that they need to be really bad in the hierarchy of bad, and we do that already.'' - --- MAP posted-by: Derek