Pubdate: Tue, 02 Apr 2002
Source: Daily Gazette (NY)
Copyright: 2002 The Gazette Newspapers
Contact:  http://www.dailygazette.com/
Details: http://www.mapinc.org/media/105
Author: Charles Lane, The Washington Post

HIGH COURT TO HEAR '3-STRIKES' ARGUMENTS

WASHINGTON - The Supreme Court announced Monday 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 law is considered the toughest third strike law in the 
country, inasmuch as it authorizes possible life sentences in cases of 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 over offenses that might have received 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 
Souter wrote in February 2001, dissenting together with Justice Stephen 
Breyer from the court's decision not to hear a similar 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-leaning 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 meted out to 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 appeal petition 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 Monday 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 amid 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 who were 
convicted of drug possession and 340 who were 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 the fact that prosecutors 
have discretion over 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 so-called "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 Kmart 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.

Gary A. 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 
Ewing had 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 
filed an appeal with the Supreme Court.

Arguments will take place next fall, and a decision is due by July 2003.
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