- The Washington Times - Tuesday, July 16, 2002

To borrow from Winston Churchill's gripping cadences over the Battle of Britain, never have so many misfits owed so much to the few on the U.S. 9th Circuit Court of Appeals. The proof rests on Andrade vs. Attorney General of the State of California (Nov. 2, 2001), in which the court brandished the Eighth Amendment's prohibition of "cruel and unusual" punishments to frustrate California's "Three Strikes and Your Out Law" as applied to career criminal Leandro Andrade.

Andrade would have graduated summa cum laude from Fagin's school of thieves in "Oliver Twist." In 1982, he was convicted of misdemeanor theft.

Released on probation, he burglarized three separate residences in 1983, all felonies. In 1990, he was convicted for a second misdemeanor theft. Five years later, he was convicted of two separate shoplifting offenses, which were raised from misdemeanors to felonies because of Andrade's crime history.

The probation report for the latter felonies confirmed Andrade's incorrigibility. It recites, in addition to the seven offenses previously enumerated, federal convictions for transporting marijuana, dismissal of seven state burglary charges, and a parole violation for escape from a federal prison. The report further noted Andrade's acknowledged heroin addiction, confession that he steals to support his drug habit, and no career change to even evanescent lawful endeavors.

We know little about the platitudinous "root" causes of crime.

Thousands of years of civilization has yielded no generally successful rehabilitation strategy for criminals, whether guilty of drug violations or other offenses. But we know much about recidivists like Andrade: namely, that the likelihood of renewed criminality if returned to our streets and neighborhoods is frighteningly high, probably 50 percent or more. That knowledge, combined with indulgent or pollyannaish judges, gave birth to stiff career criminal sentencing laws over the past decade.

In 1994, California enacted both by statute and ballot initiative a "Three Strikes" rule. It emerged not from revenge or retribution, but as a pis-aller, as a last desperate effort to discover a sentencing scheme that would cap or plunge a seemingly intractable spiraling of crime. And the "Three Strikes" law worked for twofold reasons: Career criminals commit the lion's share of crime; and, whatever else may be said of incarceration, the criminally incorrigible are not committing additional crimes while imprisoned.

Thus, crime rates in California and in sister states with first-cousin "Three Strikes" laws tumbled for a decade, and then stabilized over the last year. Record levels in prison populations were matched by record successes in attacking crime.

Andrade, in particular, deserved central casting for California's "Three Strikes" law. His career in crime is studded with brazen and serious misdemeanors and felonies. His North Star Pierre Joseph Proudhon's dictum that, "Property is theft."

Thus, Andrade's last felonies that occasioned twin 25-years-to-life sentences flaunted his antisocial neurosis. On Nov. 4, 1995, he began exiting a Kmart with five videotapes concealed in his pants. But store personnel arrested his exit and retrieved the stolen goods. Lacking the creativity of great criminals, Andrade staged a repeat performance of his Kmart fiasco at a different Kmart within two weeks. He was nabbed again with four hidden videotapes, however, by the second store's amateur crime fighting unit.

Can there be any doubt that if Andrade were released from prison, he would recidivate faster than Jackie Robinson stole second base?

Andrade successfully pleaded for relief from his sentences before the 9th Circuit. Writing for a 2-1 panel majority, Judge Richard A. Paez declared that such grim punishment for a nonviolent offender violated the cruel and unusual punishment prohibition of the Eighth Amendment. Judge Paez shed Dickensian tears that since Andrade was 37 years old at the time of sentencing, eligibility for parole would not arrive until he was 87, or 10 years after his expected lifespan. In other words, according to the circuit jurist, if Andrade had plunged into criminality at an earlier age, then harsher sentences would have been justified. Let us stop here for a breathless moment and summon Mr. Bumble from "Oliver Twist" to lament, "If the law supposes that, the law is a ass, a idiot."

Judge Paez scoffed at the gravity of Andrade's repeated predations. His three nonviolent burglaries deserved mitigation, Judge Paez sermonized, because they were prosecuted in a single judicial proceeding, not in separate trials that would have squandered everybody's time and resources; and, they were committed more than a decade before his latest felonies, which showed a turn toward less terrorizing criminal pursuits.

The circuit judge further deplored that California's "Three Strikes" law was more unforgiving of Andrade's career in crime than any companion law enacted in sister States. He ignored that in our constitutional system of federalism, it is virtually inescapable that one state will punish a particular criminal more severely than any of the others would have.

Indeed, such permissible discrepancies are what federalism is all about.

The U.S. Supreme Court is slated to review Judge Paez's daftness in Andrade during October Term 2002. But in the meantime, shouldn't we consider whether a functioning cerebrum should be made a condition of service on the federal bench?

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