- The Washington Times - Sunday, November 3, 2002

On Tuesday, the U.S. Supreme Court will have the chance to rule on one of the most ham-handed laws ever enacted by any state in the Union, that of California's "Three Strikes You're Out."
The court is being asked to consider whether imposing a life sentence on shoplifters is a violation of the Eighth Amendment's ban on cruel and unusual punishments. It is to be hoped that, despite the conservative bent of the justices, it will reach the right decision. For clearly, the law is flawed, and many of the sentences handed down under it ought to be declared unconstitutional.
Nearly a decade ago, first California's state legislature, then citizens voting on a state initiative, passed the most punitive, all-encompassing Three Strikes You're Out law in the country. Essentially, this law mandated a 25-year-to-life sentence for anybody with two previous "serious" felonies in their past who committed any third felony. A "serious" felony in California can be something as relatively minor and nonviolent as burglary of an unoccupied house. And many people tried under the law have committed third felonies so insignificant that, in other circumstances, prosecutors would have used their discretion to consider them misdemeanors with a likely punishment attached to jail time, or even a simple fine.
Recently, I published a book detailing changes in the American criminal justice system over the past two decades, as the public became more fearful of crime and as political leaders became more willing to dramatically reconfigure basic sentencing principles. One arena I focused on was California, and the battle over Three Strikes. The character whose story I used to illuminate this issue was a middle-aged heroin addict from Los Angeles, a man named Billy Ochoa who had a long history of burglary and low-level fraud in his background. Sleazy, selfish and pathetic Ochoa definitely was; but a master-criminal he was not. In 1996, Ochoa was arrested and tried for having committed welfare fraud. He had visited 13 different welfare offices around L.A. and, using phony names, had finagled a grand total of $2,100 worth of food stamps, emergency shelter vouchers and cash. Ochoa was tried under 13 counts of fraud, and, because of his previous convictions, received 13 consecutive three strikes sentences, for a grand total of 326 years-to-life. He is serving those 326 years in a maximum-security prison, at a cost to California taxpayers of somewhere in the region of $40,000 per year.
The cases of the two men whose sentences are now being adjudicated by the Supreme Court are depressingly similar to Ochoa's. One, a repeat-burglar named Leandro Andrade struck out for stealing $153.54 worth of videotapes from two K marts; the other, Gary Ewing, who had prior convictions for robbery and burglary struck out for stealing three golf clubs.
Last month, a Sacramento judge ruled that Richard Martin Duran, a criminal with the far more serious crime of kidnapping in his past record, should not have received a life sentence for possession of a tiny amount of heroin. Judge Karlton argued that repeat offenses may be taken into consideration "only to the extent that it serves to aggravate the principal offense. Prior convictions cannot aggravate the principal offense if they have no connection to the current offense."
That viewpoint should be seen as commonsensical, and it should most certainly be adhered to next week by the Supreme Court. Our whole notion of justice recoils at the idea of double indemnity, at the thought that men and women can be punished for the rest of their lives for crimes that they were sentenced for in the past, and for which they have already served their full, allotted sentences. That kind of thing may happen in dictatorships, or in countries where the courts are used to pursue state vendettas and the rule of law is a fiction used to cloak a bitter truth of arbitrary, unjust, punishment. But surely, we like to think it does not happen in a country as great as the United States, in a self-confident democracy such as ours that is genuinely governed by the rule of law.
Tragically, however, as more and more states moved toward the imposition of catch-all mandatory minimum sentences and Three Strikes laws, so more and more Americans, overwhelmingly from poor backgrounds, disproportionately either African-American or Latino, have been subjected to exactly the kind of double-indemnity punishments, and disproportionately severe sentences, handed down to Ewing and to Andrade. Most of the most than 7,000 men and women now serving life sentences in California prisons on Three Strikes convictions, have been convicted on nonviolent, relatively minor crimes, which in and of themselves would generally warrant at most a few years behind bars. Many of these individuals were convicted of their first two "strikes" before the Three Strikes law was even on the statute books.
California's Three Strikes law, crafted amidst rising public hysteria about a supposed breakdown in societal mores, ought never to have been passed. That it was, and that California's political leaders have used it to prove their tough-on-crime credentials to fearful electors, is a true stain on our country's history. It is past time for that stain to be removed. The Supreme Court has that chance. Let's see if they have the guts to strike out Three Strikes.

Sasha Abramsky is a Soros Justice Media Fellow and the author of the recently published book, "Hard Time Blues: How Politics Built a Prison Nation."

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